3.Individual Voir Dire — Medical Inquiry and Juror Examination (Part 1)
271 linesTHE COURT: We're beginning with No. 48, who was deferred from a prior day. I may say that this is -- and, I guess, more for the public than for those here who know the answer -- that sometimes occurs. There's some anomalies and people have been shifted. They may be expected one day, and we, for various reasons, shift them to another day. And this is one of those.
MS. CLARKE: Your Honor, there may be an issue for the Court to address with this juror privately.
THE COURT: Okay.
COURT CLERK: Juror 48.
COURT CLERK: Juror 48 right here, please.
JUROR: Good morning.
THE COURT: So your questionnaire that you previously filled out is there in front of you if you want to look at it. I would like to start by drawing your attention to Question 9. It's on Page 5. You listed some medications and things that you take there. Would any of those affect your ability to participate in this case as a juror?
JUROR: Friday I was excused for a cardiology appointment. I've since been diagnosed with a heart arrythmia.
THE COURT: I think this is medical information. I think we'll cut the audio on this.
(SIDEBAR CONFERENCE AS FOLLOWS:
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SPEAKER: on
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THE COURT: I reminded the jurors this morning about not talking with anybody about the case and not following the media and everything. Since you were here to fill out the questionnaire, have you been able to follow that?
JUROR: Yes.
THE COURT: We asked some questions about attitudes, including attitudes toward prosecution, lawyers, defense lawyers, and so on and so forth. You had some reservations -- if you look at Paragraphs 44 through 46, I guess. You seemed to say, both as to prosecutors and defenders, that you've yet to be in a court proceeding where they did a good job.
JUROR: Yeah. The last jury duty I was on in district court in Brockton, they -- we spent a week, and the prosecutor never asked the right question. Even the judge, at the end of the trial, said the prosecutor did a poor job. They brought in very expensive witnesses, DEA, FBI, and it cost a lot of money. And it was -- just went out the window because they never asked -- they never asked the right question. It was one simple question. And there was -- the defense lawyer, it was her first time and she was brilliant, you know. And it was sad that the seasoned prosecutor did such a poor job versus the first-time defense lawyer.
THE COURT: In 46, you said -- concerning law enforcement officers, most seem overly aggressive.
JUROR: That's for sure.
THE COURT: Tend to get carried away with their powers.
JUROR: Just from my own experience, my local town, seeing how they pick on the kids and --
THE COURT: If you want to turn back to Page 12, earlier we asked a question about law enforcement persons as witnesses and asked whether you'd give greater or lesser weight to their testimony based on their status as a law enforcement officer.
In light of what you've just said in Question 46, would that affect your assessment of a law enforcement witness? Would you tend to be harder on them than others, or would you treat them as any other witness to be evaluated on the testimony?
JUROR: Treat them as any other witness.
THE COURT: Even though you had some --
JUROR: Like I say, I think they overpower themselves with the younger crowd. I mean, it was different when I was a kid. They treated us different.
THE COURT: Let me turn to Page 20, Paragraph 77. In this question we're asking, as a result of things you've seen in the media, you've formed an opinion about certain matters, including whether the defendant is guilty or not and whether -- how he should be punished and so on.
Part A, you said that you had formed an opinion that he was guilty.
JUROR: Yes.
THE COURT: And then Part B and C, you didn't answer. But as to Part D, which said should he -- whether he should not receive the death penalty, you said you're unsure. So let me just ask about those questions.
Do you understand that in any criminal case a defendant is presumed to be innocent at the outset, and it's to be found guilty only if the government proves that he's guilty beyond a reasonable doubt by the evidence at trial. Do you understand that that's the principle on which we operate?
JUROR: Yup.
THE COURT: You say you formed an impression or an opinion about his guilt. Would you be able to, nonetheless, focus on the evidence presuming him to be innocent and convict him only if you were convinced by the evidence at trial, or would you be so affected by your --
JUROR: I just see the way that the government has felt -- he failed -- you didn't offer any bail, even if it was $200 million, something that was unreachable, I mean, showing the face that you have -- you've already convicted him. The government's convicted him because they've failed to show a bail. There's no plea agreement.
THE COURT: What I'm getting at --
JUROR: There's no opportunity by the federal government to show that he's innocent.
THE COURT: Right, right.
JUROR: I mean, maybe I'm wrong. You're in the business. I'm not.
THE COURT: So the question is -- because of the media attention, it's understandable people have impressions such as you've described. The question is: Will you insist that the government fulfill its burden of proof at trial, or have you already skipped to the next phase of the case in your head?
JUROR: Well, I've already skipped to the next phase, but I'm open to suggestion. I probably could be --
THE COURT: Let me skip over to Question 82. You said -- you have some Boston Strong T-shirts and jackets, you said, through Teamsters Local 25.
JUROR: I do.
THE COURT: Tell me what that phrase mean, "through the Teamsters union." Did they distribute them to people?
JUROR: They distributed them.
THE COURT: When was that?
JUROR: Since the incident and continuous. They still provide them.
THE COURT: I gather you're a member of the union?
JUROR: Local 25, yes.
THE COURT: Beginning with Question 88, we asked some questions about the death penalty. 88 was a general question: What are your general views? You said, "Unable to answer." The next question we asked you to express, on a scale from 1 to 10, what your views were. And you were on the -- at a 3 on sort of the opposed side of the death penalty. Then if you go to the next page, Question 90, we asked you to select a statement which was close to you -- closest to you or your views, and you said you're opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it. Does that accurately summarize your view?
JUROR: Yeah, I would say so. I mean, I use that from the same fact that I was in the service during the Vietnam era. I was opposed to the death -- you know, to pulling the trigger, going into war.
THE COURT: Were you in combat in Vietnam?
JUROR: No, I wasn't. I was stateside. That was part of the reason why I was stateside, because -- I also was generally discharged with an inhonorable (ph) discharge for part of that reason and fraudulently enlisted.
THE COURT: Okay. Let's go back to the statement in Question 90. You say you're opposed and would have a difficult time voting to impose it. The question is whether you could, on the basis of the evidence presented in the trial and particularly in the -- perhaps the penalty phase, would you be able to give careful consideration of that evidence and in -- is it foreseeable that the evidence could be such that you would consider --
JUROR: No.
THE COURT: -- imposing the death penalty?
JUROR: No.
THE COURT: Are there any circumstances you can think of that would lead you to vote in favor of the death penalty?
JUROR: I don't believe in it. I'm pro choice.
THE COURT: Any follow-up?
MR. WEINREB: Just one. Going back to what you said about it being a hardship to serve on the jury, you said to us you earn $1,500 a week as truck driver and will earn 600 a week on disability. If you're not on disability, in other words, if the -- because of your medical situation they take you off disability and you are selected to work on the jury -- to serve on the jury, what kind of a financial hardship will that be?
JUROR: It would be $40 a day.
MR. WEINREB: Yeah.
JUROR: I won't be able to pay my mortgage and my car payments.
MR. WEINREB: You would not be able to?
JUROR: No. I have bank statements showing you what it costs for me to live on a monthly basis.
MR. WEINREB: Thank you. That's all.
THE COURT: No? All right, sir. Thank you.
JUROR: Leave this here?
THE COURT: Yes. Leave that there. Thank you.
This next juror, Juror No. 58, I think by some Scribner's error, some of the pages in the questionnaire were misnumbered. But I've think we've inquired and it is her questionnaire.
COURT CLERK: Juror 58.
COURT CLERK: Juror 58. Have a seat, please.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: You filled out the questionnaire earlier. It's in front of you. We may look at it as I follow up on some things.
I want to start with Question 10 on Page 5. You said you're the sole employee at your place of employment.
JUROR: Correct.
THE COURT: Can you tell us about that?
JUROR: I have a letter from my employer.
THE COURT: Just tell us about it.
JUROR: I work for a very small company, and I am the only employee. It's the owner and myself. It's a tiny paint company in the city. So when I'm not there, he has to be there. And he would not pay me for any time out of work.
THE COURT: How long have you worked for them?
JUROR: Fifteen and a half years.
THE COURT: How long has the business been there approximately?
JUROR: About 120, forever, forever.
THE COURT: You also say you have a planned vacation.
JUROR: I do, February school vacation. It's a destination wedding. It's been paid for prior to this.
THE COURT: Okay. I don't think we need to have anything further. Thank you.
JUROR: Thank you very much.
COURT CLERK: Juror No. 59.
COURT CLERK: Number 59, have a seat, please.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: As I reminded everybody again this morning, we asked potential jurors to refrain from discussing the case with anyone and also from being exposed to media reports on TV or in the paper and so on. Have you been able to follow those instructions?
JUROR: I have.
THE COURT: That's the questionnaire you filled out when you were here before. I'm just going to follow up on some of the answers you gave in that questionnaire.
JUROR: Okay.
THE COURT: First of all, if you want to look at it, it's Page 5, Question 10. You had some concern because you had just -- have just started a new job.
JUROR: Uh-huh.
THE COURT: Can you tell us whether that continues to be an issue?
JUROR: Right now I'm just, you know, going through orientation. They might need me to travel within the next couple weeks. So, you know, I just don't want to -- I don't want to put that in jeopardy. I know I can't lose my job from serving here, but it's still, you know, a cause of concern to my coworkers and my boss.
THE COURT: Tell us a little bit about the employer. How big a company is it and so on?
JUROR: It's an international company. It's about 2,000 employees.
THE COURT: Locally, in the office that you would be working in, about how many employees?
JUROR: About 200, I believe.
THE COURT: How many people in your job category?
JUROR: I think about ten. So we do have other people that can, you know --
THE COURT: You're working for a new employer, but you've been doing the kind of work you do for a while, is that right?
JUROR: Correct, about four years.
THE COURT: We asked a little bit about people's use of social media in a couple of questions. In 29, you said that you sometimes post opinions about events on Facebook. Have you posted opinions about the subject matter of this case?
JUROR: I posted my opinion about Dzhokhar being on the cover of -- I believe it was Time Magazine.
THE COURT: Rolling Stone?
JUROR: Rolling Stone. And I thought it was very wrong. I just said it was wrong, and it's not the kind of person you want on the cover of Rolling Stone. That's all.
THE COURT: Anything other than that about the case?
JUROR: No, nothing else about the case really.
THE COURT: In Question 30, you say you use Facebook and Instagram about once a day. So you're a pretty regular user?
JUROR: Yeah. I take a lot of pictures.
THE COURT: Are they generally about personal matters?
JUROR: No. It's more like travel pictures, nature pictures, things like that.
THE COURT: We've asked about different experiences you may have had with the justice system including whether you've served as a juror. I guess you have not served as a juror, but you had some experience with a civil court trial in which you were involved.
JUROR: That's correct.
THE COURT: Does that experience give you any positive or negative feelings about court trials or anything that would interfere with your ability to be a fair juror in this case?
JUROR: No. It was very neutral.
THE COURT: Was that a jury trial?
JUROR: No. It was a -- I don't know what you call a nonjury trial.
THE COURT: Nonjury trial.
JUROR: Nonjury trial.
THE COURT: Okay. Would you look at Question 59 on Page 17 and, actually, together with that, 64 on the next page?
JUROR: I'm sorry. What was the second question?
THE COURT: 59 and 64.
JUROR: 64.
THE COURT: Those are about your attitudes towards Muslims in the community generally and particularly immigrant Muslims.
JUROR: Uh-huh.
THE COURT: You seem to have some relatively strong views about that.
JUROR: Yeah. I just -- you know, I feel like a lot of terrorist attacks have been by people who are Muslim. And I'm not saying overall as a religion it's bad, but it seems like the radical part of the religion is not good. So it's hard for me to be unbiased about Muslims in that way, having radical Muslims here. So I don't know how they -- if they ask questions about that when people come into the country, but I think they should. That was my feeling about it.
THE COURT: Would those feelings, in your judgment, interfere with your fair-mindedness or your ability to judge the evidence in this case fairly and impartially?
JUROR: Yes, I believe so.
THE COURT: You think it would.
If you look at Question 77, we ask a series of questions about whether you formed an opinion about whether the defendant is guilty or not and, if so, what penalty might be imposed. And you've said, yes, you have formed an opinion that he's guilty.
As I think you've heard in my instructions, in a criminal case, the government has the responsibility of proving somebody guilty of what they're charged with in the case, in the trial. That's -- the defendant starts presumed not to be guilty, and the burden is on the government by evidence produced at trial to prove beyond a reasonable doubt that he is guilty of what he's charged with.
It's not surprising that people might have impressions or opinions going into that, but the question is whether a juror can set those preconceived ideas aside and pay attention to the case that -- the trial and the evidence produced in the trial and, on the basis of that, make a decision whether the government has proved the defendant guilty or not. So I guess the question is: Would you be able to hold the burden -- hold the government to its burden of proof, or are your feelings about this strong enough that you think that they would override that ability?
JUROR: I feel like, even if I was shown evidence and heard it, I mean, I would like to be there, but I already feel that he's guilty and that he should have the death penalty.
MS. CLARKE: Your Honor.
THE COURT: Okay. Thank you.
JUROR: Thank you.
THE COURT: Just leave the questionnaire there.
JUROR: Okay.
COURT CLERK: Juror No. 60.
COURT CLERK: Juror No. 60, over here, please. Have a seat.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: As I reminded everybody again this morning, I've asked jurors to avoid any discussion of the case or the process as well as avoid any media reports about the case. Have you been able to do that between the questionnaire and now?
JUROR: Yes.
THE COURT: So that's the questionnaire you filled out when we were last here. I'm going to follow up with some questions about some of your answers. I'd like to start with No. 13, which is just basic about your family, I guess. We asked about your spouse, and you say -- in terms of occupation, you say "retired." Could you tell us what your spouse is retired from?
JUROR: Sure. He worked on the ambulance for the Fall River Fire Department, and he currently works as a starter at a golf course.
THE COURT: That's a nice retirement.
JUROR: Yeah, it is.
THE COURT: How long was he with the fire department?
JUROR: I would say 20 years.
THE COURT: You say he worked on the ambulance. Was he an emergency medical technician?
JUROR: He was.
THE COURT: And before he did that, did he have -- before he went to the fire department, what did he do?
JUROR: He started very young on the fire department. He retired because of a back injury, so he was relatively young when he retired.
THE COURT: Okay. So when was that? When was his retirement?
JUROR: Probably close to 20 years now.
THE COURT: Okay. Your own employment is as a manager of social work and interpreter services at a health center.
JUROR: South Coast Health, yes.
THE COURT: Tell us what your daily activities are like.
JUROR: I manage roughly 30 social workers for a three-hospital site system and probably 15 interpreters. So the social workers deal with any barriers to discharge, any psychosocial issues that patients may have, and the interpreters provide interpreting services for patients within the hospital system.
THE COURT: We asked some questions about whether there was any connection in the family with law enforcement, including prosecutors' offices and so on. Interpreting the answers -- this is Question 33 on Page 11 -- that your daughter was, I gather, something like an intern in a DA's office while she was a law student?
JUROR: Correct.
THE COURT: Has she had any regular employment in a prosecutor's office?
JUROR: No. She works for the City of Fall River in their economic development.
THE COURT: You had prior jury experience, I guess, in this court?
JUROR: Yes.
THE COURT: You said about ten years ago or so?
JUROR: Actually, I think it was longer than that, probably closer to 15 or 20.
THE COURT: You said it was a difficult process. Can you tell us why you described it that way?
JUROR: Actually, the court process was not. It was very enlightening. But the deliberation was difficult in that, for some reason though the majority of people felt the individual was guilty, the people who didn't, chose to focus on me to change my mind, and I'm not sure why that happened, but -- so it just felt difficult.
THE COURT: Because you thought you were kind of being a focus of something?
JUROR: Uh-huh.
THE COURT: What was the ultimate verdict?
JUROR: Guilty.
THE COURT: Let me ask you to look at Page 20 and Paragraph -- excuse me, Question No. 77. We ask whether you've formed an opinion about whether the defendant is guilty and, if so, what the penalty should be. You say that you have formed an opinion that he's guilty based on media reports and other things.
JUROR: Uh-huh.
THE COURT: As I've instructed the jury generally, in a criminal trial, every defendant is, at the outset, presumed to be not guilty unless and until proved guilty by the evidence. And the government has that burden to prove a person guilty beyond a reasonable doubt. It's not surprising that people might have some ideas coming in. What we ask jurors to do is to put aside those ideas in favor of the process and listen to the evidence and, on the basis of that, decide whether the government has, in fact, proven the person guilty or not as it has the burden to do. Would you be able to do that?
JUROR: I think so.
THE COURT: You also have a -- say you have an opinion about whether the death penalty should be imposed, although in the next question to whether he should not receive it, you're saying you're unsure. Let's turn to the questions that focus on that, and that starts at Page 88 -- I'm sorry, Question 88 on Page 23.
We ask there generally what your views of the death penalty might be, and you say, "Certain crimes should be punishable by death." Is that your general view?
JUROR: Yup. Theoretically, I believe in the death penalty, but it became very different, when you were looking at it, that you would be making that decision. So, theoretically, yes, I do believe in it.
THE COURT: In the next question, we ask you to put it on a scale from 1 to 10 where your views where, how strong they were. You put it kind of in the middle with a 6.
Then on the next page, we asked you to select a statement that was closest to your view. And you said, "I am in favor of the death penalty, but I could vote for a sentence of life imprisonment without possibility of release if I believe that sentence was called for by the facts and the law in the case." Does that fairly and accurately summarize your view of the matters?
JUROR: Yes.
THE COURT: So in this case, would you be open, depending on the evidence, to a judgment that was -- assuming, obviously, conviction of a qualifying capital crime, you could -- could you vote for, on the one hand, the possibility of a death penalty but also, on the other hand, the possibility of life without release?
JUROR: Yeah.
THE COURT: If you look at the -- I guess Page 25, Question 95, at the very bottom, we asked, "If you decided the death penalty was the appropriate punishment, could you conscientiously vote for it?" You said you're not sure. Then on the next page, we asked the same question about life imprisonment and you said yes.
JUROR: Struggling a little bit with that. It's very different when you're just giving an opinion versus making a decision.
THE COURT: Of course. You're trying to predict what you might think on some unknown body of facts, right? But we are asking about dispositions and -- actually, the real issue is: Are you open to consideration of the evidence so that you would possibly, depending on that evidence and how you assessed it, be persuaded to vote to impose the penalty of death or, alternatively, persuaded that life imprisonment should be the penalty?
JUROR: Uh-huh, yes.
THE COURT: Is that fair?
JUROR: Yes.
THE COURT: Question 94 expresses a rather harsh opinion by your husband.
JUROR: Uh-huh.
THE COURT: Would you feel pressured by him in making your decision?
JUROR: No.
THE COURT: Or his views if he were to say that again sometime?
JUROR: No.
THE COURT: Okay. Follow-up? Mr. Weinreb, anything?
MR. MELLIN: Your Honor, may I ask a few questions?
THE COURT: Go ahead, Mr. Mellin.
MR. MELLIN: Ma'am, I'd like to go back --
THE COURT: Just identify yourself.
MR. MELLIN: I'm sorry. I'm Steve Mellin. I'm one of the prosecutors along with the people at this end of the table.
You indicated that, theoretically, you support the death penalty, but then you were making a distinction. It's one thing to have an opinion about the death penalty. It's another thing to be in that position, right?
JUROR: Uh-huh.
MR. MELLIN: Do you believe that -- if you found that the evidence in this case would support the imposition of the death penalty, do you believe you would actually be able to vote to impose the death penalty?
JUROR: I think I could, yes.
MR. MELLIN: Okay. All right. Thank you.
THE COURT: Any questions?
MS. CLARKE: Yes, your Honor. My name is Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev. Good morning.
JUROR: Good morning.
MS. CLARKE: You mentioned that your husband retired from the fire department as an EMT 20 years ago. Do you still have connections to people that work in the business?
JUROR: No.
MS. CLARKE: Twenty years is a pretty long time?
JUROR: Yeah.
MS. CLARKE: On Question 73, that asks about how much media coverage you had followed and you marked "a lot." Can you tell us what you remember -- what stands out most in your mind about what you read or heard?
JUROR: Probably the boat incident, when it was covered by world news --
MS. CLARKE: Can you tell us what you remember about that?
JUROR: -- live. Just kind of the chase situation.
MS. CLARKE: Where were you that night?
JUROR: Home watching television.
MS. CLARKE: Very far away?
JUROR: Somerset, Massachusetts.
MS. CLARKE: Okay. Anything else come to mind, stand out in your mind?
JUROR: You know, just the scenes. Obviously, I work in healthcare, so I think every hospital learned or became more aware of emergent needs in situations like that. So, yeah, as part of my work, I think I became more aware as well.
MS. CLARKE: Okay. Did you have anything to do with any healthcare for people that were involved?
JUROR: No, no, no.
MS. CLARKE: It was interesting. I don't know whether you've told your husband you wouldn't feel pressured by him.
JUROR: He knows I wouldn't feel pressured by him.
MS. CLARKE: The question -- I don't know whether most of us could confess that.
The Question 94 that the judge asked you about, that was in response to, Would somebody be critical of you, remember?
JUROR: 94, yes.
MS. CLARKE: That's when you wrote that your spouse believes some rather harsh things, that he should have been shot in the boat. Was that a conversation that night?
JUROR: No. Actually, that was a conversation that resulted from me coming here.
MS. CLARKE: After you got your jury summons?
JUROR: Yeah.
MS. CLARKE: And your husband expressed that opinion?
JUROR: Yeah.
MS. CLARKE: Your husband expressed the opinion regarding guilt?
MR. WEINREB: Objection, your Honor.
THE COURT: Sustained.
MS. CLARKE: Did you talk to your husband -- I think, if you look at 77 -- I don't mean to go too fast. 77 and 78, you discussed your opinion with your spouse. We've gotten so used to reading these questions.
JUROR: It's hard to remember, and it feels like you go back and forth with the answers. I did anyway. So I'm sorry. What was your question again?
MS. CLARKE: You discussed your opinion with your spouse.
JUROR: About the guilt?
MS. CLARKE: Yes.
JUROR: Probably -- that piece of it was probably watching television.
MS. CLARKE: Number 78. In 77, if I'm reading it correctly, you've concluded that your opinion is that Mr. Tsarnaev is guilty.
JUROR: Uh-huh.
MS. CLARKE: And that he should receive the death penalty. And you were unsure whether you would be able to set aside your opinion. Right?
JUROR: Uh-huh.
MR. WEINREB: Your Honor.
MS. CLARKE: I'm going to ask. Is that correct? You're unsure about setting aside your opinion. About guilt or punishment? Which one?
JUROR: I was -- from the way I'm reading it now, I was unsure about the death penalty.
MS. CLARKE: Okay. The judge asked you a little bit about whether you could presume Mr. Tsarnaev not guilty and force the government to prove his guilt.
JUROR: Uh-huh.
MS. CLARKE: In reality, the first presumption is that he is presumed to be innocent.
JUROR: Uh-huh.
MS. CLARKE: How do you feel about that?
JUROR: I think that's more difficult because of the media coverage.
MS. CLARKE: So as you sit here today, you can or cannot presume him to be innocent?
JUROR: I don't think I can presume him to be innocent.
MS. CLARKE: When you answered Question 88, your answer was that certain crimes should be punishable by death. Can you help us know what you were thinking?
JUROR: Sure. The one that always comes to mind -- and I don't know a lot of the details of the location and things like that, but the doctor whose daughter and wife were killed by escaped convicts, I believe it was, who invaded their home. That's --
MS. CLARKE: That's what was in your mind?
JUROR: Absolutely.
MS. CLARKE: Okay. Thank you very much.
JUROR: You're welcome.
MR. WEINREB: Your Honor, if I might, just one follow-up on that.
JUROR: Sure.
MR. WEINREB: In asking you whether, sitting here today, you can presume him to be innocent, the question isn't whether you can presume him innocent based on what you've heard in the media or other things. In fact, the question that I would like to ask you is not whether, based on what you've heard before, you presume him to be innocent; but when you sit in the jury box and it's your job to evaluate the case on the evidence and only convict him if the government proves him guilty beyond a reasonable doubt, can you set aside what you've heard before and at that point presume him to be innocent unless and until the government meets its burden?
JUROR: I think I can.
THE COURT: All right. Thank you very much.
JUROR: You're welcome.