8.Individual Voir Dire — Jurors 51 and 54
207 lines(In open court:)
COURT CLERK: Juror No. 51.
Have a seat, ma'am.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: You have to speak into the mic, so be sure that -- you can adjust it as you feel comfortable, all right?
We put before you your questionnaire that you filled out when you were last here. We may refer to it as we talk about some of these things. This is principally to follow up on the answers you've given in the questionnaire.
Since doing that, have you abided by my instructions to avoid discussion of the case with anybody and tried to avoid any media or other reports about this case?
JUROR: Yes.
THE COURT: Thank you. Tell us about your employment and the kind of work you do.
JUROR: The actual company name?
THE COURT: Not necessary. We have it in the -- if you'd rather not, it's in the file. We know what it is. We just want to know what kind of work you do.
JUROR: I'm a software engineer. I work on disk RAID management software.
THE COURT: What's that?
JUROR: You know, where all your data is stored, those refrigerator-type boxes. I write the software to manage them.
THE COURT: And you've been doing that for some time, I guess?
JUROR: Yes. I've been a software engineer for 28 years.
THE COURT: Do you spend much time on social media yourself?
JUROR: No.
THE COURT: At all?
JUROR: Just LinkedIn. No Facebook, no Instagram.
THE COURT: LinkedIn is for professional connections and so on?
JUROR: Yes.
THE COURT: You -- we asked you if anybody had -- you know, that you knew anybody, a family member, close friend who had ever worked for various agencies, including the FBI?
JUROR: Yes.
THE COURT: And you indicated that a neighbor was a Boston FBI agent and left in 2013 after this case, and then in question 75 you seem to refer to Rick Deloria.
JUROR: Yes.
THE COURT: Is that the neighbor you're talking about?
JUROR: Yes.
THE COURT: And how close were you to Mr. Deloria?
JUROR: We've been neighbors since 1999. Three houses.
THE COURT: You see him --
JUROR: Not too much.
THE COURT: During that time did you see him commonly, during the time -- the entire time that you've been neighbors? I mean, there are neighbors and there are neighbors, I guess --
JUROR: Mostly I see him out running, and we chat when we're out.
THE COURT: You know that he was the special agent in charge here for awhile?
JUROR: Yes.
THE COURT: Did you have any conversations with him about the case?
JUROR: No.
THE COURT: Ever?
JUROR: No.
THE COURT: You have a second cousin who's a state trooper in Massachusetts?
JUROR: Yes.
THE COURT: Do you see that person regularly or intermittently?
JUROR: No.
THE COURT: Or at all.
JUROR: Once in the last year, or twice, tops.
THE COURT: Male or female?
JUROR: Male.
THE COURT: And do you know what his general work assignments are or what he does for the state police? I mean, does he ride in a cruiser or --
JUROR: Yes.
THE COURT: You're not aware if he has any special field of focus or anything like that?
JUROR: No.
THE COURT: And his status as a relative of yours being employed by the police, would that have any effect on your ability to be a fair-minded juror in a criminal case?
JUROR: No.
THE COURT: In the questionnaire we'd asked a number of questions that could come under the general topic of international events or affairs or attitudes and things like that; I mean, for example, experience with or opinions about Islam or Muslims, the war on terror, for example, and other things. Do you remember those series of questions?
Since you filled out the questionnaire and answered those questions, there's been an incident in Paris involving a terrorist attack. Are you familiar with that?
JUROR: Yes.
THE COURT: Have you followed it closely, not closely?
JUROR: Yes. I have relatives in Belgium.
THE COURT: There was an incident in Belgium as well, wasn't there?
JUROR: Yes.
THE COURT: Were they affected by that at all?
JUROR: No.
THE COURT: So you've paid attention to the European events?
JUROR: Yes.
THE COURT: Why don't you just take a look at page 17 -- page 17 and 18, basically, and just review the answers to those questions. And my question at the end is going to be: As a result of what's happened in Europe, would you answer these questions any differently than you answered them on the questionnaire?
JUROR: It's still the same.
THE COURT: It's still the same?
JUROR: Yeah.
THE COURT: Thinking about the possibility you might be a juror in this case, do you think the European events, including Belgium as well as Paris -- do you think that would have any impact on your ability to be a fair judge of the evidence in this case? Would your assessment of the issues in this case be affected by what's happened in your -- or what similar -- if there are future events, what effect they might have? Would you be able to keep focus on the issues here and not be affected by it, I guess?
JUROR: I mean, it's always difficult. You know, the world is changing and it's dangerous, and I do have family in different places, but I think I could be able to separate it from this case.
THE COURT: How much in contact are you with the folks in Belgium?
JUROR: We travel to see them, visit them once a year, and they travel to visit us once a year and we Skype. The kids Skype. I have a niece and nephew there and a brother-in-law and sister-in-law. Other than that, it's mostly just a phone call maybe once every two months, Skype maybe once a month -- once every -- you know, the other month.
THE COURT: So these are a brother or sister of --
JUROR: This is my husband's brother.
THE COURT: And his wife and children?
JUROR: Yes.
THE COURT: So they're Americans living in Belgium?
JUROR: No. My brother-in-law is American and my sister-in-law is French.
THE COURT: All right. Are the children -- how old are they?
JUROR: They are -- sorry -- nine and 11.
THE COURT: Were they born in Belgium or --
JUROR: Yes. They're French citizens.
THE COURT: They're French citizens?
JUROR: Well, French. I don't think they've chosen their citizenship, but they're half American, half French.
THE COURT: Did they live in France for awhile before they --
JUROR: No. But my understanding on this is a little vague, but you don't become a Belgium citizen just because you're born in Belgium.
THE COURT: I don't think we have to delve too much more into that. It's very interesting. I'll look it up someday.
I'm just trying to get to how close they are to you. It sounds like they're fairly close to you?
JUROR: Yes, my children and their children are very good friends.
THE COURT: All right.
Now, I'd like you to look at page 20 of the questionnaire, and Question No. 77. This question we've asked whether, based on what you've heard in the news or other places, you have formed an opinion about certain matters. And the first was whether you formed an opinion about whether the defendant was guilty or not guilty, and then we asked also whether you had formed an opinion about whether he should receive the death penalty or not.
And as to the first two, guilty or not guilty, you indicated that you had formed an opinion that he was guilty based on news reports of what you've heard and read about the marathon events. Is that fair?
JUROR: Yes.
THE COURT: So the task of a jury, of course, is to judge the evidence that's presented in the course of the trial. And at the outset of the case any defendant, including this defendant, is presumed to be innocent of what he's charged with unless and until the government proves otherwise, proves that he's guilty of what he's charged with, and does that by proof that's convincing enough that the jury has no reasonable doubt about it.
Would you be able to control whatever impression you have in the beginning and follow those principles of law; that is, accept the presumption of innocence and the obligation and burden on the government to prove otherwise by the evidence beyond a reasonable doubt? Would you be able to apply those principles?
JUROR: Yes.
THE COURT: So the question as to whether he should receive the death penalty or not, you answered you were unsure. Can you tell us a little bit about -- so I guess literally the question was have you formed an opinion. Your opinion is that you're unsure, is that -- or are you unsure whether you have an opinion? I guess that's --
JUROR: No, I have an opinion. I guess I don't object to the death penalty in itself, but I could never decide somebody's fate like that.
THE COURT: Let's turn to page 23 and Question No. 88. This is asking for your general views about the death penalty. And what you wrote down is that you didn't know if you could be responsible for making that decision.
Can you maybe amplify on that a little bit?
JUROR: Again, I'm not in favor of the death penalty but I'm not fully opposed to it either, but I don't feel that it's up to me to make that decision to take somebody else's life.
THE COURT: In the next -- on the next page -- well, you reflected that you're sort of ambivalent about it as a general matter in Question 89.
JUROR: Okay.
THE COURT: Is that fair? I mean, you chose somewhere in the middle of the range. On the opposed side but not strongly opposed, is what you said.
JUROR: I mean, I don't feel any objections to other people if, you know, they listen to the trial and they decide that, but it would be very difficult for me to live with the fact that I've made a decision like that. It would bother me. And I'm not even sure I could -- I'm not even sure I could.
THE COURT: That's the question we wanted to get to on the next page, Question 90, where we asked you to try to select which of the possible expressions of point of view was closest to your own, and you said that you were opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it.
JUROR: Yeah. I had trouble with this question. Again, I don't really think -- I don't really think we need the death penalty, but if other people in other trials -- I don't feel ill-will towards anybody that's sat on a jury that's, you know, voted for the death penalty. But for me that's a huge decision.
MR. WEINREB: Your Honor, can we pause at this point?
THE COURT: Okay. All right. I think we're just about finished anyway, so... I think that's fine.
Thank you. I appreciate your answers to the questions. Just leave that. Thank you.
JUROR: Thank you very much.
(The juror is excused.)
THE COURT: 52 has also been postponed. So the next is 54?
MS. CLARKE: Yes. 52 and 53 were postponed.
THE COURT: We're skipping 52 and 53.
COURT CLERK: 54.
THE COURT: Could you kill it for a minute?
(Discussion off the record.)
THE COURT: All right, Phil. Back on.
JAMES MCALEAR: 54. You can go to the first seat.
COURT CLERK: Juror 54, please. Sir, right here.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: That's the questionnaire you filled out before. We're going to probably refer to it as I ask some follow-up questions about it, so that's why we give it to you so it would be handy to you.
JUROR: Thank you.
THE COURT: When you were here last and left, I instructed people not to -- prospective jurors not to talk about the case and so on, and not to be exposed to any media accounts or anything else about the case. Have you been able to live up to that?
JUROR: Yes.
THE COURT: Tell us a little bit about your job and what you do in general terms.
JUROR: I'm a data management consultant who works with the pharmaceutical industry. Basically, we help companies go paperless. I have a detailed science background which helps me basically bridge the gap between our software people and the scientists on the lab bench.
THE COURT: You work for a company that employs you --
JUROR: Yes.
THE COURT: -- and the company contracts with the pharmaceutical companies?
JUROR: Yes.
THE COURT: Tell me about your own either professional or personal use of social media. How often, what do you use, how do you use it?
JUROR: I have a LinkedIn account that I've probably had access to nine months; I have a Facebook account that I think my wife has the password to. I honestly don't do much with social media.
THE COURT: Okay. You noted -- we asked about what other family members might be doing in case they had any connection with things that might come up with the case. You said your father is a Maine judicial marshal?
JUROR: My father-in-law.
THE COURT: Your father-in-law. Do you know what a judicial marshal is? Is that like a court officer of some kind?
JUROR: He handles court security for the State of Maine.
THE COURT: In the court system?
JUROR: Yes.
THE COURT: But it's -- is he located in a courthouse? Is that what he does?
JUROR: Yes.
THE COURT: Okay. You've probably seen them around here with -- they wear blue coats --
JUROR: Yes.
THE COURT: -- and something like that.
JUROR: Yeah. He's in a management position; he's not --
THE COURT: We have one right here, a court security officer. He does something like that?
JUROR: Yes.
THE COURT: Okay. Exhibit A.
(Laughter.)
THE COURT: If you would turn in the questionnaire to page 20, I want to direct your attention to Question 77. In that question we asked whether -- based on things you had read or seen in the news media or otherwise, whether you had formed an opinion about various matters including whether the defendant was guilty or not guilty, whether he should receive the death penalty or not, and you checked boxes indicating your answers.
Let's talk about the first two which are concerned with the question of guilt or not. And you said that -- you checked the box that said you had not formed an opinion about that.
JUROR: That's correct.
THE COURT: Is that the case?
JUROR: (Nonverbal response.)
THE COURT: As I think I instructed the last time and remind you, in our criminal justice system anybody accused of a crime is presumed to be innocent unless and until the government proves otherwise at trial by the evidence, and proves it beyond a reasonable doubt. So the burden of proof is always on the government and the defendant doesn't have a burden to prove he's not guilty.
You understand those principles?
JUROR: I do.
THE COURT: Do you have any difficulty applying them in this case?
JUROR: I do not.
THE COURT: I think for the -- with respect to the next two, you've said you thought he should not receive the death penalty, and that sort of brings us to some other questions further on. I want to turn to page 23, Question 88. And we asked for your general views on the death penalty and then we asked you to kind of indicate the strength of those views by circling one of the numbers on the scale.
As we talk about this I want to bring you back for a second to Question 78 where you said you had discussed your reservations about the death penalty with your wife. So it's been a matter -- since you thought you might be considered for this jury, you've had some discussions about that with your wife?
JUROR: No, we've had discussions about it prior to knowing about this case.
THE COURT: Oh, I see. Okay. Extensive? I mean, is it something -- it just came up because life is life and topics come up, or was there some particular reason why you were talking about it?
JUROR: I believe the topic came up based on a news report about another trial a while ago.
THE COURT: Okay. So you had kind of an extended answer to the Question 88. Maybe you can summarize it. What is your view in general -- not now specific to this case, but in general what is your view about the death penalty?
JUROR: My general view of the death penalty is that it's not a logical punishment for any crime in general. It costs the state more than other punishments; it carries the burden of being irreversible if found -- if the person is found to be not guilty afterwards; and it's been proven not to be a deterrent. And based on those grounds, it doesn't seem to be a logical punishment.
THE COURT: If you'd turn to page 24, Question 90, instead of a numerical scale 1 to 10, this asks you to agree with -- or to indicate which of the various possible statements was closest to your view, and you chose C, which was that you are opposed to the death penalty but you could vote to impose it if you believe that the facts and the law in a particular case call for it. Is that accurate?
JUROR: If a particular case was proven to override my previous opinions about the death penalty, then, yes, I could find to give it to someone.
THE COURT: Can you tell us what would lead you to think that your prior views were overridden? What kind of fact about the case would lead you to that position?
JUROR: I honestly don't know what would override my previous opinions, but I frankly do believe in general that I can -- that I have the ability to evaluate and change my opinions if given cause to do so.
THE COURT: Okay. So that if, as the question says, the facts and the law in a particular case called for the imposition of the death penalty, then you could conscientiously vote to impose it. Is that correct?
JUROR: I think it would be difficult for me, but honestly I think I could.
THE COURT: Would you look at the bottom of page 25 and over the top of page 26. We asked sort of parallel questions on both sides of the issue. First, if you found this defendant guilty and decided that the death penalty was an appropriate punishment, could you conscientiously vote for the death penalty, you answered yes. That's pretty much what you've just told us. Is that --
JUROR: Yes.
THE COURT: -- fair?
And then on the next question we ask the opposite of that: If you found him guilty and found that life in prison without the possibility of release was the appropriate punishment, then you could conscientiously vote for that as well?
JUROR: Yes.
MR. WEINREB: I just would like to clarify -- good afternoon. I'm Bill Weinreb. I'm one of the prosecutors in the case.
I just want to clarify something you said. It may just be that I didn't understand the way you put it.
You told us that as sort of a reasoned matter you're against the death penalty and you think it's illogical, and the way you put it here is, you think it's just state-sponsored vengeance? I'm just reading off your questionnaire.
JUROR: As I have been exposed to it in the past, that's what it seems like.
THE COURT: So you said just now that you can't think of any facts -- you said that you're opposed to the death penalty "but I could vote to impose it in certain cases." And then when the judge asked you to elaborate, you said if you could -- what kind of case, you said, "I can't think of any case that would override my previous opinions."
And I guess my question for you is: Are you saying that you could only impose it if something convinced you to abandon your view -- your views about the death penalty, in other words, to change your mind and to think that it was a logical punishment and not just state-sponsored vengeance? Would that be the point of your --
JUROR: Could you repeat that question?
MR. WEINREB: Okay. I'm sorry. It wasn't a good question.
You have a general view, general belief against the death penalty. You don't believe it makes sense as a punishment?
JUROR: That's correct.
MR. WEINREB: All right. But you are aware that under the law the death penalty is available in certain cases?
JUROR: I understand that, yes.
MR. WEINREB: And so the question is: Are you saying that you could only impose it if something convinced you -- if you heard evidence about whether the death penalty is a good idea, whether it's a good thing to have in our society, whether it really does make sense? Is that what you're saying?
JUROR: Yes.
MS. CLARKE: Your Honor, I think that's staking out certain evidence.
THE COURT: No, I don't think so.
MS. CLARKE: Okay.
MR. WEINREB: Okay. So you're saying -- so just -- I'm just trying to understand what you're saying. If the evidence did not convince you that the death penalty as a general matter was a good idea, was something that society should have, or simply that it was something that was a logical thing, something that made sense, if you weren't convinced of that, would you be able to impose it in a particular case?
JUROR: I think if -- in the context of a particular case, I would need to be convinced that that particular case warranted it over my objections.
MR. WEINREB: And what kind of -- could you try again and tell us what kind of thing could convince you of that?
JUROR: I honestly don't know what could convince me of that.
MR. WEINREB: Well, so is it just a hypothetical possibility or do you think there's a practical -- as a practical reality could anything convince you?
MS. CLARKE: Your Honor, I think we're pushing the stakeout by this hypothetical.
THE COURT: No, I think it's still a general question.
JUROR: I have always felt like -- I've always felt personally that nothing is immutable, and if given cause, my opinion should change to accept new ideas. In this case I do not know what could cause them to change, but I feel like I have to be open to the possibility that they could.
MR. WEINREB: Okay. So would it be necessary for the government to convince you that as a general matter that -- let me put it another way: If there were a referendum on the death penalty, whether we should have it in society or not, you would vote no?
JUROR: That is correct.
MR. WEINREB: Would the government have to convince you that you should vote yes, that it would be -- as a public policy matter it would be a good idea to have it for you to impose it in a particular case?
JUROR: As I understand it, the burden of proof would be on the government to prove that. I guess I'm not --
THE COURT: I'm not sure you're on the same wavelength. Try again.
MR. WEINREB: I'm still trying to get at it.
Could you -- can you imagine circumstances where, even believing that the death penalty, as you put it, is not logical, doesn't deter crime, is really nothing more than state-sponsored vengeance, notwithstanding all those beliefs you could still impose it in a particular case?
MS. CLARKE: Your Honor, that's an imaginary question.
THE COURT: No, go ahead. Answer that.
JUROR: I'm sorry?
THE COURT: You may answer that.
JUROR: I believe it would be difficult, but I'm forced to answer that, yes, I think I could.
MR. WEINREB: Why are you forced to?
JUROR: Again, I feel I do have reservations on the death penalty, but I think, with difficulty, I could overcome them if it was proven for a specific case.
MR. WEINREB: I have nothing further, your Honor.
THE COURT: No? Nothing? Okay. Thank you, sir. Step out. Leave the questionnaire right there.
(The juror is excused.)
THE COURT: 55 was removed from the pile, right? 55 was removed? Okay. I think this is the last one, right?
MR. WEINREB: Yes, it is.
THE COURT: Actually, hold off with 57 for a minute. And could you cut the audio? And, gentlemen.