10.Juror Qualification and For-Cause Rulings

MR. WEINREB: Sure. I'm happy to do it that way.

Your Honor, I disagree that he can't be distinguished from others. I do think he has a genuine hardship, but I don't believe it's a disqualifying hardship. And I base that on a couple of things. The most important one is he seemed to be a very earnest and honest person who struggled hard to say what he believed to honestly be true accurately. And he was given many opportunities to say that this would be a disqualifying hardship for him, but he simply couldn't do it. But every time he was asked, he kept stopping short of that. He said it would be a financial hit, that it would be difficult. But he didn't say that it would be the kind of hardship that he couldn't bear.

And, in fact, he did point out -- or he did acknowledge that he has a husband who also has an income, and you can -- he contributes to the household expenses. And he said that there was -- there was some work he could do on the Fridays and after hours and so on that would continue with some income, plus he gets the daily stipend.

So although I do acknowledge that -- he certainly made it clear that this would be a financial hit, he did also acknowledge that juror service is a sacrifice for everybody and that he did not go so far as to say that it was too much of a sacrifice.

MR. WEINREB: The government moves to excuse 42 for cause. We would submit that he is the very definition of somebody who's substantially impaired in his ability to consider the death penalty and impose it. He clearly is philosophically opposed to it in every way, and the only reason that he stopped short of saying that he couldn't do it was simply his statement that, Any absolutist thing makes me uncomfortable. And, yet, when he was asked repeatedly whether there were any circumstances under which he could impose it, he couldn't think of them.

And, in addition, he -- at the end when the parties were asking him questions, Mr. Bruck asked him to imagine a situation in which the facts were especially egregious and heinous and asked him, even under those circumstances, even the most egregious or heinous kind of case, could you impose it. And the best he could muster was possibly.

I am certain that if the Court asked him if he could apply the presumption of doubt -- the presumption of innocence or apply the reasonable doubt standard and the best he could do is say possibly, that that juror would not survive voir dire. And that is Witherspoon and Witt, essentially give the government a corresponding right to somebody who is fully able to consider actually imposing the death penalty despite their personal views. And he did not say that he could do it. In fact, he indicated in every way that he could not do it.

The other objection we have is that he is a professor of criminal justice; and putting someone like that in the jury box is like putting an expert witness in the jury box, somebody who is particularly liable to exert such a disproportionate influence on the jurors based on his knowledge of things outside of the courtroom, not just based on ordinary life experience but on specialized training that he's had for years and years of pursuing this career and doing research in it and being a published author, that it would interfere with the process of deliberation that jurors are expected to undertake with one another.

MR. WEINREB: Your Honor, the government moves to strike No. 43 as well. Number 43, I believe, is the quintessential example of somebody whose strong anti-death penalty views, combined with quite inconsistent answers about his ability to impose it, especially in light of his demeanor and the way that he spoke, demonstrate that he is substantially impaired in his ability to consider the death penalty.

He said that repeatedly, I don't think that I -- I don't know that I think it's the right thing to do. I don't know that I believe in the death penalty. I don't think that's the right law. But beyond that, he said that I'm not sure I have the personal constitution to impose it. And he said, I don't know if I could live with myself if I did.

And that's something beyond -- that's exactly what Witherspoon was getting at, although I agree with Mr. Bruck that it is possible under the law to be opposed to the death penalty on religious, philosophical, and moral grounds and still be qualified as a juror if you can bring yourself to put all of that aside and follow the law and actually impose it.

This is somebody who made it clear that he did not believe he could do it or at the very least was quite unsure he could do it. And he -- he said -- he said that he could impose it only in an extreme situation. But, again, when pressed repeatedly to name an extreme situation in which he could impose it, he simply couldn't come up with one.

Again, it seemed like he was the kind of person who was reluctant to state an absolutist position because people don't like to believe that they are not open-minded people. And yet the definite impression that he gave was of somebody who believed that he -- in the abstract or theoretically he could do it, but when it came down to whether he personally could actually do it despite his strong beliefs against it, that he couldn't or at least was so unsure that he amounts to substantial impairment.

MR. WEINREB: Your Honor, the government moves to excuse No. 54, again, on the ground that he is substantially impaired in his ability to consider the death penalty. And I want to -- I'm sure the Court is quite familiar, since he was the last one there, with what he said. I want to highlight a couple of things. First, just his -- first of all, he again seemed like the kind of person who was speaking very much in terms of abstract belief when he talked about his potential willingness to consider the death penalty and not in terms of something that, as a practical matter, he actually could do.

Although he said that his -- he was opposed to the death penalty, that he could impose it in a particular case if the facts justified it. He then said he couldn't think of any fact that would, in fact, justify it. He also said in his questionnaire that he considered the death penalty to be nothing more than state-sponsored vengeance, and yet he seemed to -- and in saying that he could impose it if the government somehow proved to him that his views were wrong, he seemed to be indicating that -- the logical inference to draw from that is that, only if the government could prove to him that the death penalty was something other than state-sponsored vengeance, meaning that as matter of public policy or logic, as he put it, of utility, that the death penalty's benefit actually outweighed what he obviously sees to be its downside.

And, yet, again, he was someone who was utterly incapable, could not give any example, any circumstances that would lead him to that belief. He said that at one point the government would have to prove that the law was just for him to do it, which obviously is not a burden the government bears and should not have to bear. And it's not an idea that ought to be injected into the jury room where people may, in fact, be in the category of people who believe the death penalty is unjust and yet are willing to say, despite my personal belief, I'm not the lawmaker, and I'm willing to put that aside and follow the law as it's given to me by the Court. He didn't say he would follow the law as given to him by the Court. He seemed to indicate that the government would have to prove to him what the law should be.

I also want to draw attention to his demeanor as he was sitting there. In contrast to some of the other jurors we've discussed, he was not somebody who seemed to be coming across as extremely earnest and struggling to give an honest opinion. He seemed to be somebody who was trying to give a right answer, an answer that he considered to be correct in some way, according to some metric. And that is not a reliable juror or a -- and it means -- it calls into question the reliability of his answers but, on top of that, does not recommend him as a juror in general.