6.Individual Voir Dire — Jurors 41–43
353 lines. . . END OF SIDEBAR CONFERENCE.)
COURT CLERK: Juror No. 41.
JAMES MCALEAR: Juror 41.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: We have put the questionnaire you filled out previously in front of you, and we may be referring to it from time to time.
When you were here to fill out the questionnaire, I instructed jurors to avoid talking about the case in substance with anybody or -- and tried to avoid any media or other information, sources about the case. Have you been able to do that?
JUROR: Yes.
THE COURT: Let me start with you telling us a little bit about your employment. What do you do, and how long have you done it?
JUROR: I work for EMC Corporation. I'm a senior executive assistant.
THE COURT: That's -- what is that? Assistant to a senior executive or a senior assistant?
JUROR: No. That's my title. Senior executive assistant.
THE COURT: I'm just getting to the "senior" applies to you and not to somebody else.
JUROR: Well, they're both seniors, too. I support a senior vice president and a chief risk officer. She's one and the same. And I also support a senior vice president. He's chief officer of public affairs and government policies.
THE COURT: Okay. And you've done that for a while?
JUROR: I've been there since 2005.
THE COURT: You tell us in the form that you have a couple of friends who are -- one is in, I guess, the correctional -- a correction officer of some kind, and the other is a sheriff. Can you tell us a little bit about those people?
JUROR: I have one girlfriend who did work for the corrections department for many years, and she has recently just gone to work for the Worcester sheriff's office. And then my husband --
THE COURT: What does she do?
JUROR: She's in HR. She does something with human resources.
THE COURT: Okay. All right.
JUROR: My husband and I, who is also her husband, are friends with him, and he works for the Norfolk prison. And he's not really a correction officer. I think he is. I don't know. But he mainly drives the inmates, like, to their doctors' appointments or the hospital or stuff like that. That's what he does.
And then I have another girlfriend who works at the Framingham women's prison. She does, like, computer stuff. I think she's like their IT person.
THE COURT: You had the honor of serving on two juries before?
JUROR: Yes.
THE COURT: When were they, just approximately?
JUROR: The last one I did was just April 1st of 2014.
THE COURT: Really?
JUROR: I got picked as the alternate, so --
THE COURT: Oh. When was the other one?
JUROR: Years ago.
THE COURT: The other one was a civil -- first was a civil case and then a criminal case? You want to refresh that? I'm looking at Page 15.
JUROR: The first one, I don't know what you call it, criminal or civil. The first one I remember, it was someone who walked across the street, and she got hit outside of a crosswalk or something. The one that I just did in April was drunk driving.
THE COURT: We asked a series of questions in the questionnaire about things that could generally be put under the umbrella of international events or issues such as matters relating to Islam or Muslims, the war on terror and things like that. You answered them in the questionnaire. Since you filled out the questionnaire, there have been events in Europe that are getting some reporting here about terrorism acts in Paris and so on and so forth. Have you followed any of those reports?
JUROR: I don't watch the news really a lot. If I hear it a lot, I usually hear it at work around the water bubbler.
THE COURT: Have you heard about the events in Paris? Do you know what I'm talking about?
JUROR: Kind of. I know that -- was it Kerry was going over there to do some talking or peace talks or -- that's probably about all I know.
THE COURT: Okay. What I was leading up to was whether any -- what you've heard about any of that would affect any of the answers that you previously gave. Doesn't sound like it would. There doesn't seem like there's much there.
JUROR: Probably not because I don't really know about it.
THE COURT: Now, I'd like you to look at Page 20, Question 77. In that question we asked a multipart question about whether you had -- based on the media or anything else, you'd formed an opinion about whether the defendant was guilty or not guilty or should be sentenced to death or not, and you answered to each of those questions that you had not formed an opinion. Am I reading that right?
JUROR: Uh-huh.
THE COURT: Can you amplify on that? Is that the case? You don't have an opinion one way or the other?
JUROR: I don't really have an opinion. Obviously, I know what happened on that day. I have seen some of it in the media, but I don't really follow it. Sometimes I try not to listen to the news because it's too depressing.
THE COURT: When it comes to trial, as you've heard, there will be two phases. The first phase will be to determine whether the defendant is guilty of the crimes he's charged with or not. At that stage of the case, at the beginning -- before the presentation of any evidence and throughout the case, until the jury gives us its answer, the defendant is presumed to be innocent of the charges and is guilty only when the jury says so because they've been convinced by the evidence at trial that the government has persuaded them that he is guilty of the offenses beyond a reasonable doubt. Do you think you would have any difficulty in accepting and applying the principles of presumption of innocence and proof beyond a reasonable doubt by the government?
JUROR: No, not at all.
THE COURT: Then if the defendant is guilty -- found guilty by the jury at that point of a capital crime, one for which the death penalty is possible, the jury would then have to consider whether that sentence should be imposed or a different sentence, life without release. And this answer says you have no opinion about that as well. Is that a fair understanding of your condition at this stage? That's where your --
JUROR: Uh-huh.
THE COURT: You have to use a word.
JUROR: Yes.
THE COURT: Nodding doesn't help.
Then it might help you to follow this, too, Page 23, Question 88. We asked, in summary, for your general views on the death penalty, if you had some. And you said you didn't have any general views, and it would depend on the evidence and the crime. Is that an accurate summary of your general view?
JUROR: Yes.
THE COURT: Next question, we asked you to scale -- put it on the scale what you thought about the death penalty, whether you were strongly opposed to it or strongly in favor of it, and you selected something right in the middle.
JUROR: Yes, I did.
THE COURT: Similarly, on the next page, we asked for that sort of -- sort of that same kind of assessment of where you are on the scale of things but in words this time. And you selected "D." Would you just read that for a minute and tell me whether that represents your view?
JUROR: Uh-huh, yes.
THE COURT: Assuming that the defendant is convicted of a capital crime -- so take that as a premise of the question, he is convicted -- and you proceed to a penalty phase, would you be prepared by mental attitude and your general disposition to the manner to vote for penalty of death if you thought that was warranted under the circumstances; and on the other hand, would you similarly be prepared to vote for a penalty of life imprisonment without parole instead of the death penalty if you thought that was warranted?
JUROR: Yes, I would.
THE COURT: Either way, you would be prepared.
JUROR: Either/or.
THE COURT: Depending on the circumstances that you heard them in the course of the trial?
JUROR: Yes.
THE COURT: So you heard me talk about certain things the government must prove in the penalty phase. They must prove there was a certain level of criminal intention involved in the commission of the acts and that there were circumstances that were aggravating that might call for a higher penalty than the average intentional murder and there would be evidence about mitigating factors that might say that's not the right penalty, that there should be life imprisonment. You hear all that, and you're open to going either way, depending on how you assess all that evidence? Is that a fair summary of what --
JUROR: Yes, it is.
THE COURT: Have I got anything wrong?
JUROR: No.
THE COURT: If you look at Question 95, we ask whether, if he was guilty and you decided that it was appropriate, could you conscientiously vote for the death penalty, and you expressed some uncertainty there. You said you were unsure.
JUROR: Yes, I did.
THE COURT: Is that -- today you've kind of been a little firmer about it. I'm just wondering which is really --
JUROR: Because, when I'm answering that question, I don't know any -- I don't know anything about the case. I don't know any evidence. And where I'm not one way for death penalty or one way not for death penalty, to me, I would have to hear -- I would have to hear the circumstances and the evidence and --
THE COURT: Any follow-up?
MR. WEINREB: No.
MR. BRUCK: No, sir.
THE COURT: All right. Thank you. Step out. Leave the questionnaire right there.
(The juror is excused.)
MR. WEINREB: I just want to point out that Number 42 didn't sign --
THE COURT: I know. It's the first thing he's going to do.
COURT CLERK: Juror No. 42.
JAMES MCALEAR: Juror No. 42.
COURT CLERK: Right here, sir.
THE COURT: Hello.
JUROR: Hi.
THE COURT: We are going to follow up on some of the answers that you've given in the questionnaire, so I've put in front of you. But before we get any further, we noticed that you hadn't signed it.
JUROR: Oh, I apologize.
THE COURT: So we would like you to did that, if you would. And you should read the statement before -- you can use my pen -- affirming that the answers are made under the penalties of perjury and that they are true and complete.
(The juror complies.)
THE COURT: Thank you.
JUROR: Sure.
THE COURT: So tell us about your professional career.
JUROR: It's -- I've been quite a few places. I've worked in municipal and state government for a number of years. I've spent about a dozen years working in the correctional field, either with or on behalf of correctional agencies, New York City and Massachusetts.
I've been -- in 2006 I became a professor of criminal justice at -- all of this stuff is all --
THE COURT: Yeah.
JUROR: So I became a professor of criminal justice beginning in 2006, spent the last 15 months or so -- I have been in an academic administration position, although I'm still an active criminal justice researcher.
THE COURT: Okay. From your educational history that's in the form, it looks like you started out sort of in the field of psychology/sociology?
JUROR: That was my undergraduate major. I have a master's in public administration and a master's in public policy.
THE COURT: That's what I was going to say. So you kind of migrated to public policy?
JUROR: Yeah. I was already at that point working in corrections at that time.
THE COURT: Would it be fair to just -- if you want to put a sort of overall label on your career, criminal justice, is that --
JUROR: Mostly. I would say the majority of my professional career and my current academic career, my research is in that area.
THE COURT: Now, so we asked some questions about the use of social media, and you apparently have some professional postings and things that you do. Is that --
JUROR: Well, yeah. I have a Twitter account that I post, you know, various -- usually not a lot of commentary, just kind of articles, things that come to my attention that people might be interested in.
THE COURT: Within the field that you're --
JUROR: Mostly in my field, but I occasionally post some music because I'm a music fan. But aside from that --
THE COURT: That's what I was going to get at. Do you use it --
JUROR: Yeah, it's mostly professional with a little twinge of personal stuff.
THE COURT: And is it mostly Twitter or is there other -- Facebook, for example?
JUROR: I occasionally will weigh in on blogs in terms of commentary on issues. But again, most of my social media use is professional. I rarely use it for personal things.
THE COURT: We asked a series of questions in the questionnaire that could be grouped under the general topic international affairs or international issues and so on. Do you remember them? Some were about attitudes towards Islam or Muslims and attitudes towards the war on terror and so on and so forth.
JUROR: Yeah.
THE COURT: Since you filled out the questionnaire --
JUROR: Yup.
THE COURT: -- there have been some events in Europe, Paris, in particular --
JUROR: Yeah.
THE COURT: -- that could be characterized as terrorism.
Have you followed that at all?
JUROR: Yes, I have.
THE COURT: Closely or casually or --
JUROR: Like I follow most other things in the news. I'd say fairly closely, yeah.
THE COURT: Does your awareness of those events lead you to want to change or revise any of the questions? You can review it if you want to. It's on page 15 if you want to start looking at it. Actually, it's not 15. It's -- wait a minute. I'm in the wrong place. It's 17, I think.
JUROR: Page 17? No, I don't think so.
THE COURT: Have you -- in any way relevant to this case have you been influenced by those events?
JUROR: I don't think so.
THE COURT: You did say when you filled out the questionnaire to one of the questions -- which was whether you believed the war on terror is overblown or exaggerated, you answered affirmatively. Can you tell us what you had in mind when --
JUROR: Well, I'm looking at the question now and trying to interpret -- you know, it could be interpreted a number of different ways. I think that from a policy standpoint -- I think certainly it's overblown and exaggerated in the media possibly, but from a policy standpoint it didn't strike me as overly exaggerated. It's a real challenge that faces our society. And -- I mean, I'm not crazy about the terminology, but -- the terminology of "war on terror," you know, it's just kind of a little hypie to me, but...
But as a thing, I mean, it's obviously something that over the last -- particularly over the last, you know, 14 years it has become a major issue for us.
THE COURT: So I agree with you the question is ambiguous. It could be asking about the media or it could be asking about public policy and so on and so forth.
So I gather your affirmative was more on the media side than the public policy side. Is that fair?
JUROR: Yeah, I would say -- well, I said yes, I think it's overblown and exaggerated. Yes, I probably thought it was a media thing more than anything else.
THE COURT: Perhaps it's unsurprising given your profession and career, but Question 76, you said you had read through the indictment and related court documents including motions and rulings.
JUROR: Yeah. The night before I came here I was very curious, and so I actually went out and I read through some stuff that was posted online.
THE COURT: That was prompted by the fact you were coming here?
JUROR: That was prompted by the fact I was coming here, yes.
THE COURT: Is it something you probably wouldn't have done if you hadn't been called here?
JUROR: Yeah, I guess I was kind of curious about what was --
THE COURT: But would you --
JUROR: I probably wouldn't have read through the entire indictment but, you know, I find it interesting and, you know.
THE COURT: Okay. So in the next question, 77, we are asking about whether people have formed opinions based on what they've seen or read. We intended the question to apply to things like media reports and so on and not to the indictment. I don't know whether --
JUROR: Right.
THE COURT: -- having read the indictment influenced you.
JUROR: Actually, even without having read it, I probably would have said that I had formed some kind of an opinion about it.
THE COURT: So as you answered that question, you were sort of thinking about what you had learned --
JUROR: I was thinking about what I already --
THE COURT: -- through the media, on TV and so on?
JUROR: Right.
THE COURT: Okay. All right.
And in that question, then, we asked, you know, had you formed an opinion about guilt or not guilty, and then about the penalties that could be imposed, the death penalty particularly.
With respect to the first stage of this proposition, a defendant, this defendant, of course, is presumed to be innocent of the charges against him unless and until the government proves otherwise at trial by the evidence and proves it to the jury beyond a reasonable doubt.
Do you have any difficulty in faithfully applying those principles of the presumption of innocence and proof beyond a reasonable doubt?
JUROR: That I do not feel like I would have any problem applying.
THE COURT: Even if you have an opinion before the trial begins?
JUROR: I'm a researcher, a social scientist. I look at the evidence, you know, that's in front of me. I'm not afraid to kind of take a step back and question my assumptions about -- so in terms of looking at facts and evidence, that's not necessarily something that --
THE COURT: So if at trial you thought on any of the counts the government had failed to satisfactorily prove that count, you could --
JUROR: Yeah.
THE COURT: -- you could vote for -- you know, in favor of not guilty?
JUROR: Yes.
THE COURT: You could?
JUROR: Uh-huh.
THE COURT: Okay. Now, with respect to the third and fourth parts of that question --
JUROR: Yeah.
THE COURT: -- should he receive the death penalty, no; should he not receive it, yes, I guess I'd ask a similar question: Are those firm views or would you similarly be receptive to the evidence --
JUROR: The death penalty question is a different one because there's other pieces that end up being implicated. It's not simply a matter of looking at the facts. There are value judgments that implicitly have to take place. You had mentioned the aggravated and mitigating circumstances, how those things are weighted. Those things are weighted very individually. I don't necessarily think that -- it's not a matter of looking at the beyond-a-reasonable-doubt question in my mind, so... It's more complicated.
THE COURT: So if you'd turn to page 23, we asked a series of questions to try to determine your views concerning the death penalty in general. And particularly, Question 88 asks about your views in general.
And in it you -- I'm having a little trouble reading the writing, I have confess. Perhaps you could read it.
JUROR: Let me just summarize -- it says "I have" -- I know my handwriting is not good. I have reservations about the death penalty as a matter of -- as a matter of public policy, I have reservations about it. When I just kind of look at the evidence around why we would have it, I don't necessarily think that it is something that has a lot of imperialistic justification behind it.
Stepping back from that, I also think that the -- in this particular case -- we talk about mitigating circumstances -- the age of the defendant actually has some weight in my mind, and that's an unassailable fact of the case, okay? No matter what's presented, the defendant was, as I understand, 19 years old at the time that the crime was committed, and I look at that as a mitigating circumstance. So that's what I wrote here.
THE COURT: The next two questions try to sort of take the temperature of your views on the death penalty. 89 on the previous page, if you go back a page --
JUROR: Yeah.
THE COURT: -- would put it on a scale of 1 to 10, from strongly opposed to strongly in favor, and you selected Number 2 --
JUROR: Uh-huh.
THE COURT: -- indicating you're sort of on the opposed side of that.
Then on the next page we asked it a little differently, using words instead of numbers, and you said that you're opposed to it and would have a difficult time voting to impose it even if the facts supported it.
Is that an accurate statement of your views?
JUROR: Yeah, I think because I have -- I have certain reservations about it, generally speaking, and I think that -- I stop short of saying A.
THE COURT: Right.
JUROR: But I felt B was an approach.
THE COURT: What do you think the difference is between A and B as it affects your answer?
JUROR: Because I don't like -- any absolutist kind of thing makes me very uncomfortable, which is why I circled 2. The idea of just -- it's not like I have this absolutely kind of unshakeable, purely kind of moralistic position about the death penalty. That's not what it's about. It's about a whole lot of other things that I think about.
THE COURT: And I guess what I'm interested in is -- these weren't your words --
JUROR: Right.
THE COURT: -- so we didn't ask you to say it, so we're asking you to agree with somebody else's formulation. But the formulation is that you would have a difficult time doing it even if the facts supported it.
JUROR: Right.
THE COURT: And so that could mean -- that could come close to meaning never.
JUROR: Yeah. Yeah. And again, this goes back to one mitigating position that I pointed out before which is there's one fact that I know about the case --
THE COURT: Right.
JUROR: -- that is in my mind material, so...
And again, I may not -- this is -- I think when I was answering this I was maybe -- I'm not sure if I was thinking about the current case or generally speaking but...
THE COURT: Well, okay. Yeah.
JUROR: It actually asks in general.
THE COURT: Obviously. And, you know, as I say, it's a form and it has the defects of forms.
The premise is you never get to the question of what the penalty is unless the defendant has been convicted of an intentional killing or murder, okay? So you take that as the premise. You have somebody convicted of that offense.
JUROR: Right.
THE COURT: Right? As you've referred to, in the penalty phase there will be on one side suggestions of things that should aggravate your evaluation of the culpability which would tend towards the death penalty. You've identified already yourself something that might mitigate against that and call instead for life. The question is: Could you assess all that evidence and be open to the possibility of a conscientious vote for either the death penalty or life in prison on that body of evidence, or do you think your disposition against the death penalty is so strong that you doubt that would be the case? I guess -- change my words. You don't have to accept that formulation either. I'm just trying to get --
JUROR: Here's -- I'll certainly -- during the course of the trial there will obviously be evidence presented that will present more information than what I know, okay? This was a horrendous crime, okay? You know, hundreds, if not thousands, of people's lives have been altered. And clearly, you know, the magnitude of this thing is pretty significant.
At the same time I also have -- I do have reservations about the death penalty as a matter of policy, and I can't -- I can't really say for sure that my feelings about the death penalty wouldn't creep in somewhere, all right?
THE COURT: All right.
JUROR: I mean, I would obviously do my best to apply the facts.
THE COURT: Let's try another question. The next page, Question 95.
JUROR: Yeah.
THE COURT: If you found Mr. Tsarnaev guilty and decided the death penalty was an appropriate punishment, could you conscientiously vote for it, and you said no. That question could be criticized in its form.
JUROR: Yeah. Yeah.
THE COURT: It's imperfect.
JUROR: Right.
THE COURT: But I guess what I'm getting at is the negative answer as opposed to perhaps a more equivocal "I'm not sure" answer.
JUROR: Yeah. Yeah. There's no -- these are not easy. There's probably a lot of inconsistencies in here. These are not easy questions to answer.
THE COURT: Right.
JUROR: You know, without actually being in the situation, it would be very difficult for me to absolutely say positively that I could or couldn't do something. I really can't be sure. So maybe "I'm not sure" might have been a better response to that.
THE COURT: I think the last thing I have, and then I don't know if the lawyers want to follow up on anything, you told us that you've run in 12 marathons, including the Boston Marathon four times. Does that have any impact on your views and ability to --
JUROR: You know, like a lot of other people, you know, I've looked at -- when this crime was committed, I looked at it as a real kind of -- a real violation of something that I kind of held very dear. I live very close to the starting line of the marathon. When I moved my family to Hopkinton, this area, in 1998, the marathon was actually part of our decision about what town we were going to live in.
There was a time in my life where I lived and breathed it. I'm older and slower and my back hurts so I don't do it anymore, but it's a very important thing for me. And so I -- you know, I would like to think that I could put it aside. I can't say 100 percent that I could.
THE COURT: When was the last time you ran it?
JUROR: 2005.
THE COURT: Follow-up?
MR. WEINREB: Just briefly.
THE COURT: Identify yourself.
MR. WEINREB: I'm sorry. Good afternoon. I'm Bill Weinreb. I'm one of the prosecutors in the case.
Question 90, if you would just turn back to that for a second?
JUROR: Yeah.
MR. WEINREB: So you wrote you were opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it. And the question really is simply: How difficult do you think it would be? I understand that you said that you don't like to say anything absolutist because --
JUROR: Yeah.
MR. WEINREB: -- and I understand where that comes from, but what we're really trying to get at here is can you genuinely envision yourself voting for the death penalty in any case given how strongly you feel or not? In other words, not as a theoretical matter but as a real matter, something that you could actually do.
JUROR: I think that the statement here that I would have a difficult time is accurate.
MR. WEINREB: But could you elaborate?
JUROR: Let's put it this way: It would go against my judgment about whether the death penalty is a good idea for society. And so that's -- you know -- and so I'd be kind of -- I was struggling with trying to apply the law against kind of these convictions that I have that are built -- you know -- built on this -- on my personal belief that the death penalty serves no constructive purpose. Do you see what I'm saying?
MR. WEINREB: Yes.
JUROR: Yeah.
MR. WEINREB: And so really that is the question, which is: You have -- you say you have a judgment or belief that the death penalty serves no useful purpose but you also say that your understanding is that the law is different. And my question is: Are you actually capable of putting aside your judgment and your beliefs and following the law or not? And not just are you capable of it theoretically, but as a practical matter --
JUROR: Could I vote for the death penalty?
MR. WEINREB: -- could you really do it in a real case, you personally --
JUROR: You know, it depends on the -- I think talking in the abstract, a real case or this case, okay, those are two different things.
MR. WEINREB: This case you haven't heard any evidence in.
JUROR: I haven't heard any evidence but I know certain things about it that are factual, okay? And I mentioned again before in my mind the age of the defendant is a material issue here, okay? Based on what we know about brain development, okay? And that becomes a factor that is -- you know, it would take a lot to kind of override that for me, all right, when we're talking about the facts in the case.
And you're saying that if you were to demonstrate, for example, that the aggravating circumstances were so far beyond that, they would outweigh that, could I apply --
MR. WEINREB: I'm not asking you to make a decision now because you can't. You haven't heard the evidence. All I'm asking is for you to -- and this is very hard to do. It's hard to project yourself into a situation, and it's even harder when you haven't actually heard the evidence. So all we can do is rely on your best estimate of your own situation.
And so really what I'm asking you to look deep inside and tell us the answer to is: In an actual case where you were deliberating in a jury room and you were trying to decide whether you could put aside your judgments and other things and vote for the death penalty in a particular case where you -- are there circumstances where you could see yourself actually doing it?
JUROR: Are there certain -- there could be. I don't know what the circumstances would be. You know, I --
MR. WEINREB: Does it seem only theoretical to you --
JUROR: It is theoretical to me because I haven't been put in that situation. I'm trying to wrap my mind around what it takes to move from the theoretical to the practical, and until you're there it's very difficult for me to make that assessment, you know?
I lean towards answering no to your question. That's my inclination.
MR. WEINREB: Okay. Thank you.
MR. BRUCK: If I could very briefly, I'm David Bruck. I'm one of Mr. Tsarnaev's lawyers.
And I just want to clarify, stepping away from this case, you appreciate that the system requires jurors to consider aggravating factors and mitigating factors. No one's ever required to impose the death penalty; you're simply required, if you're on a jury, to fairly weigh the evidence and then make a -- what is a moral judgment about what's fair and what the person deserves.
Imagine now that you are confronted with a case in which there is very, very strong aggravating factors, such as a very cruel or sadistic way the murder was committed, and a lot of evidence that the person would recidivate, perhaps even in prison. Dangerous.
MR. WEINREB: Your Honor, I'm going to object.
MR. BRUCK: I just want to discuss what the aggravating factors are.
THE COURT: Go ahead.
MR. BRUCK: If those were the facts, understanding that your inclination is to be highly skeptical of the death penalty, could you vote for the death penalty if those were your conclusions?
JUROR: If -- well, you're presenting a scenario where society is at risk, okay, and the only way to mitigate that risk would be to vote for the death penalty. Is that what you're asking?
MR. BRUCK: Well, if that was your conclusion, yes, if there was unacceptable risk.
MR. WEINREB: Again, I object to this.
THE COURT: No, go ahead. You can answer it.
JUROR: If there was unacceptable societal risk, okay, I would say possibly, you know.
MR. BRUCK: You would require a lot of evidence to justify --
JUROR: It would just have to be -- it would have to be very compelling.
MR. BRUCK: Understanding you wouldn't want to, if it was there, could you do it?
MR. WEINREB: Your Honor, this is very leading.
THE COURT: I think this is a little too far, this one. That's getting a little argumentative.
Okay. I think that's it. Thank you. I appreciate your...
JUROR: One other piece of information just to -- just it may be material; it may not be. I do receive significant amount of research funding from the U.S. Department of Justice. I just wanted that to be on the record, okay? So...
THE COURT: Okay. Does it go directly to you or does it flow through --
JUROR: Yes, it funds my research. It flows through the university.
THE COURT: It flows through the university? Okay.
(The juror is excused.)
THE COURT: We're at about one o'clock. I think we'll take about a half-hour recess for everyone.
(There is a luncheon recess in the proceedings from 12:59 p.m. to 1:45 p.m.)
(Federal Defender William Fick joins the proceedings.)
COURT CLERK: Juror No. 43.
JAMES MCALEAR: Juror 43. Take a seat right over there.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: How was lunch?
JUROR: Passable.
THE COURT: Passable will do.
JUROR: Appreciated.
THE COURT: Have you been able to abide by the instructions I gave you last time to avoid any discussion of the case with anyone or exposure to any media articles about the case?
JUROR: Yes.
THE COURT: Okay. The questionnaire you filled out last time is in front of you, and I will be referring to it as I follow up on some of the answers that you gave to the questions in the questionnaire.
JUROR: Okay.
THE COURT: Just tell us a little bit about your employment, your career and so on.
JUROR: I work in the pharmaceutical industry. I'm a biologist.
THE COURT: Done that for some years?
JUROR: Yeah, I've done that for about ten years.
THE COURT: Okay. Use of social media?
JUROR: I have a Facebook account, Instagram. I don't use it all that much.
THE COURT: What's "all that much"?
JUROR: You know, I've used it in the past. Now I would say maybe a couple of times a month I might check in on it.
THE COURT: Any -- are you putting any material out or are you viewing any that relates to the case?
JUROR: No.
THE COURT: We asked about prior jury service, and you had a trial -- a criminal trial in New Hampshire, I guess?
JUROR: Yes.
THE COURT: When was that, roughly?
JUROR: I would say early 2000s.
THE COURT: So a decade or so ago?
JUROR: Yeah.
THE COURT: We asked a series of questions in the questionnaire about what might generally be grouped as international affairs or things like that, attitudes towards Islam or Muslim people or the war on terror, so-called, and so on and so forth, and you answered those. Since you've answered those questions there's been some other international news about incidents in Paris and so on and so forth.
Are you aware of those?
JUROR: I am.
THE COURT: How closely have you followed those?
JUROR: I haven't really followed them closely myself. I work with a man who is French Canadian, so he had some interest in what's happening, I guess, in French culture and has mentioned it. So I know about it peripherally.
THE COURT: If you'd turn to page 17 and just quickly review that series of questions on that next page. And my question is: Does anything you've learned about that European incident lead you to change any of the answers you've given?
JUROR: No.
THE COURT: One of the answers you did give was, in Question 62, that you thought the war on terror was overblown or exaggerated. Can you amplify on what you had in mind when you answered that?
JUROR: It's just kind of my perception that people like to war monger. It's, I guess, good for a lot of different industries and businesses. So that's really my thinking about that.
THE COURT: Okay. So if you would turn to page 20, I want to ask you a little bit about Question 77. In that question we tried to determine what prospective jurors might think about -- already think about this case in terms of having formed an opinion about whether the defendant is guilty or not and whether he should be sentenced to death or not, and you answered all the possibilities there, well, differently, so "unsure" as to guilt or not guilty; "no" as to the death penalty; and "yes" as to not receiving the death penalty.
Let me take the guilt questions first --
JUROR: Okay.
THE COURT: -- as to which you said you were unsure.
JUROR: Okay.
THE COURT: Tell us what you had in mind when you chose that option.
JUROR: I mean, I'm open to hearing the evidence. You know, I think I'm a pretty objective person. So, you know, I'm willing to hear evidence for both sides. I haven't -- I would say I'm open to forming an opinion based on that evidence.
THE COURT: What we ask jurors in a criminal case to do is to, at the outset, presume -- in a sense, the default position is that the defendant is not guilty, presumed innocent -- unless and until the government proves otherwise, and proves that he is guilty by the evidence at trial, and proves it beyond a reasonable doubt.
Do you have any difficulty in accepting and applying those principles faithfully in the case?
JUROR: No. No.
THE COURT: And was my re-summary essentially what you had in mind?
JUROR: Exactly, yes.
THE COURT: Now, as to the death penalty cases, we're going to turn to a different part of the questionnaire. It's page 23. And it's a series of questions beginning with 88.
We asked for general views about the death penalty, and you said, "I don't believe in the death penalty."
JUROR: Correct.
THE COURT: We then asked you to scale your -- the strength of your view on a 1-to-10 scale with 1 being strongly opposed, and that's the selection you made.
JUROR: Correct.
THE COURT: And then on the next page we asked you to choose which of a series of statements might come the closest to your views about this matter, the death penalty, and you said you were opposed and would have a difficult time imposing it even if the facts supported it.
Is this, for lack of a better term, an absolute position? In other words, is there no circumstance under which you would be persuaded that the death penalty was an appropriate sentence, or could you -- if the circumstances seemed to you to warrant it, could you conscientiously vote in favor of a death penalty because of the circumstances?
JUROR: I wouldn't say that it's an absolute position. Again, I think that I'm fairly open-minded. I do question the death penalty and whether or not it's the right way to approach punishment. I could conceive of a situation in which I could be persuaded to go along with it, but that situation would have to be extreme.
THE COURT: Okay. In Question 95 we asked sort of straightforwardedly now, not so much as a general matter but more with reference to the case, if you found Mr. Tsarnaev guilty of a death-eligible crime and you thought that the death penalty was the appropriate punishment, could you conscientiously vote for it in that circumstance. You said "not sure" on the form.
JUROR: Yeah. You know, I think it's something that I would struggle with. I'm not sure if I have the personal constitution to contribute to somebody else's death, but, again, I -- I don't tend to deal in absolutes, so I think I'm open-minded and willing to be convinced.
I'm not sure how I would -- how I would respond were I in that position.
THE COURT: Okay. Any follow-up by anybody?
MR. WEINREB: Yes, your Honor. Just briefly.
Good afternoon.
JUROR: Good afternoon.
MR. WEINREB: I'm Bill Weinreb. I'm one of the prosecutors in the case.
JUROR: Okay.
MR. WEINREB: You said that you felt you could impose the death penalty only in an extreme situation. And my question is: When you say that, do you have a particular extreme situation in mind that is the only one in which you could impose it or are you saying that in a more general, abstract way?
JUROR: I would say it was more of a general statement. I don't have, I guess, a particular situation in mind.
MR. WEINREB: Okay. And then you said, "I'm not sure I have the personal constitution to impose it but I'm open-minded and willing to consider it." And I just wanted to ask you if you could elaborate a little bit on that. And in particular, right now I imagine you're thinking about it more as a -- because the trial hasn't begun, you haven't heard any evidence, you're thinking about it in a more general, abstract way.
JUROR: Correct.
MR. WEINREB: But what we need to know is if you were sitting in a jury deliberating with other jurors and you came to the conclusion that the death penalty was the appropriate punishment in the case, could you personally vote to impose it knowing that that meant a person would go to their death based on your vote? In other words --
JUROR: Yeah, I understand.
MR. WEINREB: Yeah.
JUROR: Honestly, I don't -- I don't know the answer to that question. It's something that, again, I would struggle with. I don't know. I don't know if -- I don't know if I could live with that, but...
MR. WEINREB: Well, that's fair. It's very hard to know things that you've never experienced before, but now is the only time we're going to get to --
JUROR: No, I understand. I understand.
MR. WEINREB: If I could push you a little further.
JUROR: Sure.
MR. WEINREB: I don't want to push you further than you could go, but if you could just help us understand any better.
JUROR: As I said, I'm open-minded. I'm willing to be -- to hear an argument in favor of that position.
MR. WEINREB: Not that -- I'm not talking now about the abstract idea; I'm talking about the other part, the actual idea of being able to do it, you personally.
JUROR: Right.
MR. WEINREB: Help us with that.
JUROR: You know, it's something that, again, I would struggle with. If I really felt that it was warranted, again, I think I could be convinced of that position, but I would personally struggle with that decision.
MR. WEINREB: Okay. Thanks.
MR. BRUCK: Just a couple of things. Would you think that any conscientious person would struggle with that decision?
MR. WEINREB: Objection, your Honor. That's not a --
THE COURT: I think it's not about -- yeah, I would agree with that. It's speculating about other people.
You can ask the juror about it -- about his own views, but not about others'.
MR. BRUCK: Okay.
By the way, I'm David Bruck. I'm Dzhokhar Tsarnaev's lawyer, one of them.
JUROR: Nice to meet you.
MR. BRUCK: Just to clarify some of the questions you were being asked about a moment ago, you appreciate that you were being asked about a decision where you had listened to all of the evidence and come to the conclusion that -- probably with some reluctance, but you had come to the conclusion that the facts really warranted, justified the death penalty. Is that -- that's how you understood the questions from --
JUROR: No, I understand. Again, that's the law. I'm willing to consider the law and to work within the law. I don't -- I don't know that I think that that's the right law, but, again, I'm willing to be convinced.
MR. BRUCK: And I don't know how well this has been explained -- I think it has been -- but the law never requires a jury to impose a death penalty, but it requires that you fairly consider everything --
JUROR: Sure.
MR. BRUCK: -- and then come to a conclusion.
And if your conclusion is that it's not warranted, you don't vote for it. And you're only asked to vote for it if you decide it's the right thing to do. Are we together on that?
JUROR: Okay. Yeah.
MR. BRUCK: That's how it works.
JUROR: Okay.
MR. WEINREB: Your Honor, this isn't a question. I object.
MR. BRUCK: I'm getting to it.
THE COURT: All right. Let's have the question.
MR. BRUCK: The question is just if you were convinced that it was the right thing to do, knowing you wouldn't want to, could you do it?
JUROR: I don't know that I think that it is the right thing to do.
MR. BRUCK: You haven't heard the evidence yet.
JUROR: I don't know that the death penalty is an appropriate punishment for a capital crime.
MR. BRUCK: Until you've heard the case.
MR. WEINREB: Objection.
THE COURT: Yeah. To that -- yes, I sustain the objection to that. You don't have to answer that.
If there's nothing else, I think we can move on.
MR. BRUCK: Yeah.
THE COURT: Thank you. Why don't you leave the questionnaire there and you can be excused.
JUROR: Thank you.
(The juror is excused.)
(Discussion at sidebar and out of the hearing of the public:)
THE COURT: The questions are a little argumentative. We're really looking for information.
MR. BRUCK: I understand.
THE COURT: I think it's a phenomenon I've detected a little on each side.
MR. BRUCK: I could do better.
THE COURT: So this is really to get the information from the juror and not to make an argument. And I say that as the factfinder.
MR. BRUCK: I understand.
THE COURT: Okay. Back on.