1.Juror Illness, Alternate Substitution and Postponement, Draft Verdict Form, and Mitigating Factors
59 linesP R O C E E D I N G S
THE COURT: We're not fully informed yet but one of the jurors is ill. He was in the bathroom throwing up and he's seeing the nurse right now. So that's what we're trying to get. I don't know whether he'll be able to continue today or not. But I just wanted to bring that up because that obviously has implications. We have to have the Russian witnesses today.
So I don't have any more to say than that except I think we may be facing the necessity to excuse him if he can't continue and we have to go forward, which would mean bringing in the first alternate.
MR. WEINREB: Is there the potential of delaying and sitting tomorrow instead if the rest of the jurors are amenable to that?
THE COURT: We could do that, probably.
MR. WEINREB: If it's just a one-day thing and it seems like it would --
THE COURT: Let's get a report from the nurse. That's an interesting idea.
MR. WEINREB: It's different if he has the flu and he'll be out for weeks.
THE COURT: You don't have to comment. I just wanted to let you know we're in the process of dealing with the issue. We'll let you know when we know more.
MR. WEINREB: All right.
(The proceedings adjourned at 9:38 a.m.)
(The proceedings resumed at 9:52 a.m. Attorneys Chakravarty and Fick are not in attendance.)
THE COURT: So I have talked to the nurse who has consulted with him -- I was going to say "examined." I'm not sure if that's literally true or not. But anyway, she feels he is not able to continue today. He is suffering from migraines. He doesn't have his migraine medicine, which is causing the problem, I guess. And she said it's only going to get worse during the day. He's trying to talk her into saying he's fine and he can do it, but she said there's a risk that he's just going to get worse during the day.
I understood that to indicate that if he had his migraine medicine he'd be better, so there's some possibility that that would be the case. So if everybody is willing to take up the suggestion that we just punt until tomorrow, I think that's probably the better course and would not require any personnel change in the jury, which I think is desirable if we could avoid it. But that may be a possibility if he's in the same condition tomorrow. If he's not able to continue, we can't keep doing that and we have to get these witnesses done.
MS. CONRAD: Do we know if the rest of the jurors are available tomorrow?
THE COURT: We'll find that out. If there's a problem there, we'll obviously let you know. So they -- I think -- because it was obvious, I guess, they know that he's ill. Now, timing wise that's going to work out?
MR. WEINREB: Yeah, I think the Russian witnesses aren't on a plane until seven o'clock.
THE COURT: Well, let's keep our fingers crossed and hope that will be the case.
MS. PELLEGRINI: Okay.
THE COURT: Okay? So I don't know how to handle this publicly. I mean, do you want me to come out and make the announcement?
MR. WEINREB: I think you should.
MS. CONRAD: Otherwise, they'll just ambush us.
THE COURT: Without the jury?
MR. WEINREB: Yeah, without the jury.
THE COURT: So Paul will deal with the jury.
COURT CLERK: Do you want to find out first about their availability before you go out there and say definitely tomorrow?
THE COURT: Yeah, sure. Actually, why don't you go out and ask them now. And as long as we have some time to kill --
(Laughter.)
MS. CLARKE: Now that you have us here.
THE COURT: Right.
-- how about jury instructions? We're coming to the point where that will be necessary.
MR. MELLIN: We have them ready to go.
MR. WEINREB: We've just been so consumed with other things.
THE COURT: I understand. Well, now you'll have a day off.
MR. WEINREB: So I know that the defense submitted a list -- submitted a draft verdict form, and we have a draft one too, but both of them now only have the aggravating factors in them and I'm not sure what use that is. We need the one with the mitigating factors.
MR. BRUCK: Well, the mitigating factors will naturally have to be finalized to conform with the evidence, plus there are -- there is an issue which the Court indicated it was disposed to grant but we haven't completely resolved it. It seemed like -- I understood you wishing the verdict form to have everything. It wasn't primarily focused on the mitigating factors which are a separate issue.
THE COURT: Well, can't we start with the ones you're sure you'll have in there and then you can add if you think that that's necessary after the rest? I mean, there's at least a core that I think is kind of undeniable. The reason is that it gives us a sense of how you want that -- how you want that part of the verdict form organized, among other things.
MR. BRUCK: Well, in terms of that, sure. You know, at the end of the evidence it's customary for the defense to sort of reorganize the mitigating factors in the way that really conforms to the way the evidence -- and it breaks them up into two or -- so if we're not -- bound not to do that, we can give you sort of an example of it based on what we've already submitted that the Court can use to work from.
THE COURT: Right, we can move it around.
MR. WEINREB: Although, your Honor, it's the breaking them up into two that is going to trigger the litigation in the case. So the earlier that we have a draft version -- I mean, I think what would be preferable would be an overinclusive draft session rather than -- the Court had said what you're sure of and then others could be added later. But if we could have all of the proposed ones, that would make it possible to expeditiously resolve any disputes that arise because it could be a matter that needs to actually be briefed and argued and so on.
MR. BRUCK: Well, I mean, part of our problem is the government has been very aggressive about challenging -- objecting to things we're trying to put in, and it's a little problematic to have anything resembling a final list of mitigators in the proper -- with the proper structure and emphasis before we know what we manage to get in front of the jury, so...
But we can certainly put in what we've got so far and do it that way.
THE COURT: Okay. I guess it will be a working draft sort of thing. And again, I presume that pretty much the instructions with some custom tailoring to this case, obviously, will follow Sand's model. I assume everybody does that.
MR. BRUCK: We are following your lead-in.
MS. CLARKE: Judge, the Waltham reconsideration is pending.
THE COURT: We're waiting for --
MS. CONRAD: It's not a reconsideration; it's a motion.
MS. CLARKE: It's a motion for an order for a subpoena.
THE COURT: Right. We were going to get a response on that?
MR. WEINREB: Yes. So we contacted --
COURT CLERK: I explained to them the situation. You have nine jurors who can't do it tomorrow -- I did a head count -- because they have work, they have plans. Two were like absolutely can't do it. And so I said, you know, be honest. Just tell me. If you can't do it, you can't do it. And they all raised their hands, so...
(Pause.)
MR. WEINREB: I hate to take somebody who has gone this far and really wants to serve and has showed up and claims that he is willing to do it.
THE COURT: Well, the alternative is to keep the witnesses here.
MR. WEINREB: Till Monday.
THE COURT: Till Monday.
MR. MELLIN: Can we talk to the FBI about that, your Honor?
THE COURT: Yeah. Why don't you talk about that. It seems like those are the only alternatives: We go today without him -- and the nurse is unequivocal that he can't sit today and it would be an invitation to trouble, on the one hand -- and adjourning until Monday with the witnesses here on Monday.
MR. BRUCK: I think we can predict right now the FBI is not going to favor staying until Monday and so --
THE COURT: Well, it's not necessarily preference, it's can it be done logistically. I'm going to assume the answer is yes.
MR. WEINREB: Obviously it could be done logistically, the question is how weighty is their objection to it. So we'll consult with them and we'll come back.
MR. FICK: I would just note briefly the original -- the parole grant was for a period of up to two weeks with departure within 48 hours of testimony. And I understand that there's a great logistical burden here; on the other hand, some of the burden is of the executive branch's own making in the sense there's sort of an overkill kind of control on these people. You know, they also are more than ready to get out of here, I have to say, given the kind of house arrest conditions they're living under, so, but, you know.
THE COURT: Okay. Why don't you make your consultations.