1.Rulings on Challenges to Jurors 38 and 54
20 linesP R O C E E D I N G S
THE COURT: All right. This is to just follow up on a couple of the prospective jurors from last week that I wanted to reserve and reread the transcript. So let's start with 38, if anybody wants to add -- I mean, it's been pretty well argued.
MR. BRUCK: Well, we don't have a great deal to add except to emphasize what we uncovered over the weekend.
THE COURT: I've read your submission.
MR. BRUCK: Thank you. We just feel like -- picture a jury of 12 members that were like this juror. And no one would think that's an impartial jury. We think it's quite clear on the issue of bias that he is disqualified; and on top of that, he's a juror who said he would be worried about his hardship. He should be treated like the other self-employed jurors.
MR. WEINREB: I have nothing to add.
THE COURT: I think, on reflection, he should be excused. I think it's actually a combination of the two. His hardship might be endurable for a couple of weeks; but for the length of this trial, I think it's pretty significant. And while I -- I think I said on Friday, I appreciated his thoughtfulness, evident thoughtfulness, but I think that his emotions are too close to this case.
I think we reserved on 58 as well -- 54.
MR. WEINREB: That was the government's motion, your Honor. I'd just like to add -- emphasize that this is a case, I think, where the Court's ability to observe the prospective juror's demeanor and his way of answering the questions particularly important. This is somebody who wrote in his questionnaire that he believed that the death penalty was state-sanctioned murder, and he's being asked whether he could bring himself to commit state-sanctioned murder.
And although -- and he clearly expressed a great deal of ambiguity, at the very least, about his ability to do that, to personally, as a realistic matter, give somebody the death penalty given his incredibly strong feelings against it. And although it's true that if it is theoretically possible for somebody to do that, this is not a juror who convincingly said that he could.
And I just want to emphasize that in Uttecht v. Brown, which is the Supreme Court's latest ruling on this very kind of question, it emphasized that when there's ambiguity in the prospective juror's statements, the trial court is entitled to resolve it in favor of the state without risking reversible error if the trial court believes that its assessment of the juror convinces it that it is just a theoretical possibility, not a practical point. In that case, the trial court excused a potential juror who stated six times that he could consider the death penalty or follow the law; but because those responses were interspersed with more equivocal responses, that was enough to justify striking the juror.
And we just submit this is one of those cases where the Court cannot be convinced that he really, as a practical matter, could participate in something that he considers to be state-sanctioned murder.
MR. BRUCK: Well, your Honor, I think it's very telling that, inadvertently, I'm sure, Mr. Weinreb misstated what the juror stated on his questionnaire. He said that after listing things that he didn't like about the death penalty, he said that it only seems -- "The only thing it seems to serve," which is equivocal itself, "is state-sponsored vengeance," not murder. There's a huge difference. Vengeance retribution, that is a constitutionally permissible goal of capital punishment. There are Supreme Court cases that talk about where the justification for a death sentence is inadequate. It becomes unconstitutional because it is nothing but state-sanctioned infliction of human suffering for no rational purpose. So in some ways, there is a fairly respectable position that's within the legal mainstream if this man had been a lawyer.
Mr. Weinreb went after this question of whether he would require the government to actually change his opinions of the death penalty or only show that it was justified in this case, and we got the answer. He said, "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." There are no words in English to make it any clearer that this is a death-scrupled juror who would put that -- his beliefs aside if the evidence in an individual case justified the death penalty. Mr. Weinreb cites Uttecht v. Brown but doesn't mention that in Uttecht the juror clearly didn't understand what was going on. He kept saying the only time he would impose the death penalty is if there was a danger of the defendant getting out on parole or being released and doing it again. He was told over and over again that Washington State has abolished parole and that couldn't happen. And he kept coming back to that as his justification.
So what was really happening, even though, yes, he said he could impose it but he could only impose it in conditions that were impossible to ever occur in any case. And that was what the judge, in his discretion, took into account. And the Supreme Court said, Well, under those circumstances, you've got to go with the judgment of the Court, who is there and observes the juror.
I'll grant you, as I said on Friday, that this man has a slightly unusual style of communication. That's just the way he talks. But that's not the basis for disqualifying anybody from service based on his opinions about capital punishment. And the ambiguity was resolved. We didn't even do any follow-up questions. We didn't think it was an issue after his final answer to Mr. Weinreb. And we just don't think there's any basis.
I understand -- the state has 20 challenges, and that's what those are for. They clearly don't trust that he would go with them, and maybe he wouldn't. But that's what peremptory challenges are all about.
THE COURT: Yeah. I think we'll leave it to that. I think you'll have to use a peremptory on him. I think it's -- on the record, it's way too close a call, and you never know what somebody looking only at the record will think about it. I have my concerns about his candor, but I think it's best that I allow the strike -- I mean, disallow the strike and let you, if you choose, exercise a peremptory.
Okay. So we'll recess this portion. When the jurors are ready, we'll follow as what we've done with the introduction and then the --
MR. BRUCK: Judge, there's one housekeeping matter, if I may. Yesterday evening, after checking with your law clerk, we sent her a courtesy copy of a pleading that could not have been filed in the normal course. It was under seal, and we -- it had to be written and filed outside of business hours unless we were going to give it to you when court resumed.
I just wonder if that's an acceptable procedure generally. We don't want to start creating process without leave of the Court, but it just seems like, if the Court wants to have advance notice of a filing that we're going to be making like that, would it make sense simply to serve the government and send a copy to your law clerk. And the Court would have the option of looking at it early or getting it in due course.
THE COURT: Mr. Weinreb?
MR. WEINREB: I have no objection.
THE COURT: That sounds fine.
MR. BRUCK: Thank you.
THE COURT: Okay. See you shortly.
(Recess taken at 8:47 a.m.)
(The Court and the venire entered the room at 9:10 a.m.)
THE COURT: Good morning, everyone.
JUROR: Good morning.