8.Individual Voir Dire — Final Juror Examination (Part 4)
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COURT CLERK: Juror 79.
COURT CLERK: Juror 79. Have a seat, please.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here last to fill out the questionnaire, have you been able to abide by my instructions to avoid discussing the case?
JUROR: Only I got stuck on a bus, and there was someone listening to talk radio, and suddenly five people around me were all discussing it. So I tried --
THE COURT: Tried to ignore it?
JUROR: Tried to but it was 20 minutes of Mass. Pike trapped on a bus.
THE COURT: Anything that you would be unable to discharge from your consideration, anything anybody said that would be -- interfere with your --
JUROR: There were a couple things that kind of stuck in my head.
THE COURT: Like what?
JUROR: Just talking about the procedural parts of this week and the case, what was going on, that kind of thing.
THE COURT: How would that affect you?
JUROR: Only in the sense I thought we were not supposed to know any of those things.
THE COURT: The substance of it, having unfortunately heard it, does what they were saying have any -- lead you to think differently about the matter than you used to?
JUROR: I think it strengthened my opinion that I already had.
THE COURT: About the case?
JUROR: About the defendant being guilty.
THE COURT: We'll come to that again when we get to those points.
Your form says that you are a self-employed consultant to the construction industry. What does that involve?
JUROR: So I do project management for commercial construction essentially on a consulting basis. So I work for myself, not for a big company.
THE COURT: As somebody who's self-employed, how would you be impacted, if at all, by serving on a jury for three or four months?
JUROR: It would be devastating being. I'm a single dad. I have a nine-year-old child who I'm the single breadwinner in the house and that's -- if I don't work, I don't get paid. So it would be a massive decrease in pay for me.
THE COURT: That's not something I don't think I found in the questionnaire.
JUROR: Maybe I should have answered it.
THE COURT: We did ask to the degree it would be a hardship for you on the schedule we put out so -- nothing wrong if you didn't.
JUROR: I apologize.
THE COURT: It just comes as a surprise. Tell us -- it really -- you depend on your own labor to get money in the door?
JUROR: Right.
THE COURT: Okay.
JUROR: Yeah, absolutely.
THE COURT: All right. Thank you.
JUROR: All set?
COURT CLERK: Right this way, sir.
COURT CLERK: 75.
COURT CLERK: Juror 75.
COURT CLERK: Juror 75, have a seat here, please.
JUROR: Thank you.
THE COURT: Hi.
JUROR: Hi. How you doing?
THE COURT: Have you been able to abide by my instructions last time to avoid discussion of the case with anybody?
JUROR: Yes.
THE COURT: And to the best of your ability to avoid any media reports about it?
JUROR: I have.
THE COURT: Thank you. That's the questionnaire you filled out in front of you.
JUROR: Yup.
THE COURT: I'm going to ask you some questions -- some follow-up questions on some of the things you've answered in the questionnaire.
Let's start with what you do. You said -- it says you're a management consultant, and I'm not sure I'm reading the name.
JUROR: Business Breakthroughs International.
THE COURT: What is that?
JUROR: Business Breakthroughs International is a management consulting company. Tony Robinson is part of it. Chet Holmes is part of it. I work with companies to help them grow revenue from wherever to increase revenue.
THE COURT: What's your daily or weekly routine like?
JUROR: I have an office in my house, and so sometimes I'm in my house, working, you know, with clients, doing conference calls, webinars, things like that. And then sometimes I'm at different clients' sites.
THE COURT: We asked a question about whether the schedule of the case was going to be difficult for people. You said no hardship to that.
JUROR: It is a little bit of a hardship because I'll be -- I potentially could lose a lot of clients, so that's the answer. If it's a three- or four-month trial, I could lose a lot of clients.
THE COURT: Well, it's hard for us to assess the degree of the impact. Everybody has some impact from serving. Is it the kind of impact that is manageable, or is it something that would be very difficult? I guess that's what we can't assess.
JUROR: I guess it would be manageable.
THE COURT: Because you can move your hours around and things like that?
JUROR: I hope. It depends on the case.
THE COURT: We will take Fridays away from the case.
JUROR: Okay. I didn't know that.
THE COURT: Part of the idea was to let people get back to the --
JUROR: I forgot that. Hopefully, it will be manageable.
THE COURT: In terms of social media, the only thing you referenced was LinkedIn.
JUROR: Right, correct. I'm not on Facebook.
THE COURT: Twitter?
JUROR: No, none of that stuff. LinkedIn, I am, but none of the other stuff, I'm not. I don't have time for that stuff.
THE COURT: We asked, in the questionnaires, a series of questions about attitudes towards current events and world affairs and things like that, attitudes about Islam or Muslims, attitudes about the War on Terror and so on. You answered all of them.
Since you answered them, there have been some events in Europe and Paris. There have been other instances of terrorist activity. Have you followed that?
JUROR: Not really. I know what happened but not to the nth degree. I haven't followed it that much. More the Patriots.
THE COURT: Fair enough. I guess my question would be: To the extent you followed it, would you change any of your answers?
JUROR: No, not really. I haven't followed it. I've been very, very busy with work. That's the honest truth. And I haven't been watching the news very much because I'm so busy.
THE COURT: So if you'd turn to Page 20 in the questionnaire, Question 77, we asked about whether you had already formed some opinions based on the media or whatever else you may have heard about the events in the case, each of the subparts of that question you answered "unsure."
JUROR: Right.
THE COURT: Can you explain or amplify on that?
JUROR: Well, I think that if I am a juror in this case, I would listen to the case, both sides, the defense, the prosecution, and form an opinion based on what I would hear and subject to what's going on in the court. So that's what I think a juror is supposed to do. And I think I'm able to do that.
THE COURT: Okay. You're right. We do ask jurors to put themselves in that condition.
JUROR: Right.
THE COURT: That they presume, at the outset, that the defendant is innocent or not guilty of what he's charged with. It's up to the government to present evidence that proves to the jury beyond a reasonable doubt that he is guilty.
JUROR: Right.
THE COURT: If they do that, then the jurors can return a verdict of guilty. If the government doesn't convince them, then the verdict would be not guilty. You don't have any problem with those principles?
JUROR: No, I don't.
THE COURT: And you didn't have any personal impact of the events of --
JUROR: I did not.
THE COURT: Beginning on Page 23, at Question 88, we ask a series of questions to try to gauge your thinking about the possibility of imposing a death penalty. Question 88 asks you, in general, what your views about the death penalty may be. And you say you are open to it in certain situations.
JUROR: Right.
THE COURT: In the next question, we asked you to tell us the strength of your opposition or favor of the death penalty, and you're pretty far over on the opposition scale, just one up from strongly.
JUROR: Yeah. Maybe --
THE COURT: It does show you had some indecision about that perhaps.
JUROR: Maybe 3 would be the right choice if I had to say it now. In general, you know, it would be for extraordinary cases, would I -- if I was a juror, would I say that the person should be put to death. So I hope I'm answering your question.
THE COURT: You are. Could you perhaps flesh out a little what you mean by "extraordinary" to the extent you've --
JUROR: Well, it would have to be -- it would have to be something horrendous. It would have to be catastrophic. It would have to be something where the person maybe didn't have remorse, things like that.
THE COURT: Okay. The next page, we asked if you could tell us which of the several possible statements best reflected your feelings about the death penalty in a case where someone had been proved guilty of an intentional murder.
JUROR: I think I answered this -- I think I chose C, and I answered that. That is my honest answer. So, in general, I am opposed to the death penalty, but in certain circumstances, I could -- I could -- you know, could say that the person should be put to death.
THE COURT: And then if you go to 25 and the top of 26, we asked questions that kind of paired together. Question 95 is, if you found this defendant guilty and decided that the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty?
JUROR: Yes.
THE COURT: You said yes. Then the other side of the equation, in a sense, in Question 96, if you found him guilty and decided life imprisonment without possibility of release was the appropriate punishment, could you conscientiously vote for that as the penalty?
JUROR: Yes, I could. So it depends on the facts of the case.
THE COURT: Any follow-up?
MR. MELLIN: Your Honor, just a couple. Good afternoon, sir. I'm Steve Mellin. I'm one of the prosecutors on the case.
You were just describing for the judge kind of what you mean by "extraordinary," and you said "horrendous" or "catastrophic." Can you elaborate on that a little bit? What do you mean by "horrendous" or "catastrophic"?
JUROR: I would say multiple deaths, multiple deaths. Can I think about it for a moment?
MR. MELLIN: Sure, sure.
JUROR: Terror, you know, world terror, I think things like that.
MR. MELLIN: When you say "world terror," you mean something like Adolph Hitler?
JUROR: No, on a smaller scale.
MR. MELLIN: All right. Thank you. Thank you, your Honor.
MS. CONRAD: If I may?
THE COURT: Sure.
MS. CONRAD: Good afternoon, sir. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
JUROR: Yes, hi.
MS. CONRAD: The judge asked you some questions about your response to Question 77, which is on Page 20, if you wouldn't mind turning to that? Sure, take your time.
JUROR: 77? On Page 20, okay. Yes.
MS. CONRAD: And you told the judge that what you meant there is that, if you were selected for this jury, you could keep an open mind and listen to the evidence.
JUROR: I could.
MS. CONRAD: But this question, if I could just maybe frame it a little bit differently, as I read it, is, as you sit here now or as you sat there while you filled out this questionnaire, had you formed any opinion, leaving aside any instructions you might get in the case -- had you formed an opinion -- in other words, did you or do you believe that Mr. Tsarnaev is guilty?
JUROR: No. I have not formed an opinion on that at this point.
MS. CONRAD: Okay. The same thing as far as the appropriate punishment?
JUROR: Appropriate punishment would be -- I mean, aside from affecting my business, I think I would be a fair juror because I think I would listen to both sides of the case, and I could make a decision of innocent or guilt based on the facts of the case, and I could make a decision on the death penalty or life in prison. But aside from the time commitments and affecting my business, I think I'm open to the facts of the case.
MS. CONRAD: I understand that, sir.
JUROR: Did I not answer your question?
MS. CONRAD: My question is a little different. My question is --
JUROR: Okay.
MS. CONRAD: -- putting aside whatever instructions you might get, have you formed an opinion as to whether or not, if Mr. Tsarnaev is found guilty, he should receive the death penalty?
JUROR: No. I have not formed an opinion about that.
MS. CONRAD: And when you were responding to Mr. Mellin's questions about the types of cases that you think would warrant the death penalty, is this one of them?
MR. WEINREB: Well, objection.
THE COURT: Well, yeah.
MR. WEINREB: I think -- reworded, I think it would be okay.
THE COURT: Let me try to reword it. You know what this case is about.
JUROR: Sure.
THE COURT: Generally, that is. You know that there were bombings in which people were killed?
JUROR: Yup.
THE COURT: Can you tell us whether that is within or without your definition of extraordinary?
JUROR: Based on not being -- the trial didn't start yet, yes, it is within my opinion that the death penalty should be implemented in this type of case without having the trial first to form an opinion. Did that answer your question?
MS. CONRAD: So just to follow up on that for one minute, if the defendant were found guilty of the charges against him, would you believe that he should get the death penalty?
MR. WEINREB: Objection, your Honor.
JUROR: I don't know at this point.
THE COURT: I think he answered.
MS. CONRAD: One other thing. You said, aside from your business, you think you could be a good juror or you could be a fair juror in this case. Can you explain what you mean by "aside from your business"?
JUROR: Aside from my business, that I believe that this case could last three to four months or possibly longer, and that's a long time for me to be without my clients or my clients to be without me. And my business could potentially fall apart. So that's what I meant.
MS. CONRAD: Would that be something that would be a distraction or a concern to you as you sat on the case if you were to be selected?
JUROR: It could be. It could be, you know. That's my only reservation. That's the only reservation I have.
MS. CONRAD: Would you have an income while you were sitting as a juror?
JUROR: I would not.
MS. CONRAD: You wouldn't have any income?
JUROR: No.
MS. CONRAD: Would that impose a financial hardship on you?
JUROR: Yes.
THE COURT: Let me just follow up on that. You had indicated earlier that you could do --
JUROR: Catch up on Fridays.
THE COURT: Fridays, evenings, weekends.
JUROR: I could.
THE COURT: Zero income?
JUROR: No. It would be some income.
THE COURT: How do you bill, just generally speaking?
JUROR: I bill by the project. So it's a hundred percent commissions, and it really is by the project. So if I'm working with -- can I mention a company's name? It doesn't matter, right? If I'm working with Fidelity, for instance, I would have to do work with Fidelity, with their salespeople, in order to get paid. So if I don't -- if I don't do that work, I wouldn't get paid. I could do some of that work in the evenings. I could do some of that work on the weekends. I could do some of that work on Fridays. So that's what I'm trying to say.
THE COURT: All right. Thank you.
JUROR: All set?
THE COURT: Yeah. Leave that there.
COURT CLERK: 76.
COURT CLERK: Juror 76.
COURT CLERK: Sir, over here, please. Juror 76, have a seat, please.
THE COURT: Good afternoon.
JUROR: Hello.
THE COURT: Since you were here last, have you been able to abide by my instructions to avoid any discussion of the case substance and avoid media as best you could about the case?
JUROR: Yes.
THE COURT: Tell me a little bit about your professional employment.
JUROR: I'm an architect.
THE COURT: You're employed by a company Payette?
JUROR: Payette, yes.
THE COURT: Tell us about that. How big a company? What do you do for the company?
JUROR: I've been there ten years. It's probably 140 large, maybe 150 by now.
THE COURT: Multiple locations?
JUROR: We do research labs. Singular location. Lots of work on college and university campuses.
THE COURT: You work on a project-by-project basis? Is that --
JUROR: I do, yes.
THE COURT: At any given time, how many projects would you have going? Say, now, for example.
JUROR: Let's say one and a half. You have a primary and there's always one cooking.
THE COURT: When you're doing it, you're kind of focused on one?
JUROR: Oh, yeah, for the most part.
THE COURT: Other than the company's website, it appears from your answers to the questionnaire you don't really use social media?
JUROR: Correct.
THE COURT: You had one experience with jury service.
JUROR: Yes.
THE COURT: When was that, do you remember?
JUROR: I may not have this right, but I'll say seven years ago.
THE COURT: Close enough. What court?
JUROR: Suffolk.
THE COURT: Do you remember?
And it was a civil case?
JUROR: Correct.
THE COURT: Anything about that service that would have any affect on your ability to serve as a juror in this case?
JUROR: No.
THE COURT: We asked some general questions about possible attitudes towards some wider issues, exposure to Muslims, thoughts about Islam or Muslims, thoughts about the War on Terror and so on. Do you remember answering those in the form? If you don't, you can look at it. It's Page 17 and a few on the top of the next page as well.
JUROR: Okay.
THE COURT: Since you've answered all those questions, there have been some world events, including the attacks in Paris. Have you followed those at all?
JUROR: I have not followed them. I did hear brief mention in passing.
THE COURT: You're not really familiar with what happened?
JUROR: I am aware of what happened. I didn't follow it. I stayed away from the media like I'm supposed to.
THE COURT: All right. Good for you.
So there's nothing about that that you've heard about that would change anything you've answered in these questions?
JUROR: Correct.
THE COURT: That's what I was getting to. If you'd go to Page 20, Question 17 asked whether, on the basis of things you had heard, prior to filling out the questionnaire, from the media or otherwise, that you had formed -- whether you had formed an opinion about whether the defendant was guilty or not and, if so, what penalty he might receive. And in this you indicated that you had an opinion from those sources that he was guilty; and then in Part C, you answered, yes, you had an opinion about the death penalty in this case. Is that right?
Let's take the first part of that first. I think I've already said at least once to the jury that in a criminal case, under the law, every defendant accused of a crime is presumed not guilty, or innocent, unless and until the government proves otherwise by the evidence at trial, proves it to that jury by the evidence beyond a reasonable doubt. Understanding that you have what I might call an informal opinion about the matter, would you be able to fulfill that duty that we impose on jurors to regard the matter as unproven until the government has proved it by the evidence beyond a reasonable doubt?
JUROR: Yes.
THE COURT: With respect to the second part, I want to -- actually, before we get to that, I'd like to look at Question 80. Some -- I guess one friend and a daughter and that friend's daughter and then the daughter of another friend -- so I gather there were three people -- the friend, her daughter -- was it a he or she, the friend?
JUROR: Female, she.
THE COURT: Her daughter and the daughter of another friend of yours.
JUROR: Correct.
THE COURT: They were near the finish line at the time of the events?
JUROR: Yes.
THE COURT: Have you talked with those friends about their experience in that respect, or do you just know what happened?
JUROR: I know what happened.
THE COURT: Have they told you about what their feelings were or what they saw, didn't see, and so on?
JUROR: No.
THE COURT: In addition, you say the friend -- the wife of a friend and coworker is a surgeon that was called in to help with the victims.
JUROR: Correct.
THE COURT: Do you know the wife?
JUROR: Yes.
THE COURT: Who was the -- that is, do you know the surgeon?
JUROR: The surgeon, yes.
THE COURT: Have you talked to her about her experience?
JUROR: No.
THE COURT: Are these -- give us some idea of what degree of friendship. You say they're friends. That's covering a range of possibilities. Are these people you see a lot, once in a while?
JUROR: The three that were at the Marathon, I see a lot. The coworker's wife, I don't see a lot.
THE COURT: Those who were there, are they sort of neighbors? Are they friends from the community where you live?
JUROR: Yeah. Some of them go to school together.
THE COURT: Does any of that give you any concern about how you might be affected by that if you were a juror on the case?
JUROR: To some degree. That's why I wrote it as being relevant.
THE COURT: How powerful, I guess, an influence might it be if it's an influence?
JUROR: I can keep my head about me.
MS. CLARKE: I'm sorry, your Honor.
THE COURT: Would you repeat that?
JUROR: I could keep my head about me.
THE COURT: I guess you were -- 81 on the next page, you were affected by the shelter in place.
JUROR: Correct.
THE COURT: I can't quite read the last sentence. "I witnessed" -- I'm looking -- what's under the line there?
JUROR: "I witnessed the increased law enforcement activity on the way home."
THE COURT: Similar question for that. Would that have any appreciable effect on your thoughts about the evidence in the case as you heard it and deliberated on it?
JUROR: It contributed to it feeling close to home, so to that extent, yes.
THE COURT: Would it -- I guess that question is how strong an influence might it be on the way you evaluated evidence or thought about the issues in the case.
JUROR: I can be objective.
THE COURT: Turn to Page 23. Beginning with Question 88 and some of the following questions, we asked various questions about your views about the death penalty in general and otherwise, I guess. And with respect to the question for your general views, you wrote that, "If the law indicates the death penalty applies to a case and the verdict of a fair trial is guilty, then I am in favor of the death penalty." Is that --
JUROR: Yes.
THE COURT: -- a summary? Anything you want to add to that or qualify or amplify?
JUROR: No.
THE COURT: The next question, we asked you to tell us sort of the strength of your views, and you circled 10 on the 1-to-10 scale, strongly favor. That seems a little stronger than the careful answer in the previous one. Maybe you didn't -- maybe you intended it. Maybe you didn't intend it. Maybe I'm misreading that.
JUROR: It's 10. I can be objective, watching for the evidence I'm supposed to watch for for guilty or not guilty. But if it's a subjective opinion about how the penalty is carried out, then it should be the most of what the law allows, in my opinion.
THE COURT: So turn to the next page. We asked which statement came closest to your view, and there was a range, obviously, from opposed unalterably and in favor strongly and would vote for it in every case. That's G. You selected E, that you are in favor of it, as you've told us, but could vote for a sentence of life imprisonment without the possibility of release if you believe that sentence was called for by the facts and the law in the case. That's an accurate --
JUROR: Yes. I think that's our responsibility.
THE COURT: So the question is: Can you think of the kinds of considerations that might lead you, in a given case -- maybe some general categories of factors that would lead you, on the one hand, perhaps to say this is an appropriate case for the death penalty and I will vote for it, or perhaps, in another case, to say this is not an appropriate case for the death penalty, although I generally favor it; and, therefore, I will vote for life imprisonment. What are the kinds of things you would think about in making that discrimination?
JUROR: My son is ten and my daughter is six. When what happened involves kids of that age, it's hard for me not to not make strong associations with my own children.
THE COURT: So would you find it difficult to vote for a penalty that was not the death penalty, that was life imprisonment, in a case that involved the intentional murder of a child?
JUROR: Yes.
THE COURT: You know that that may be involved in this case, right?
JUROR: Understood.
THE COURT: So do you think it would be -- this would not be a case where you would be open to life imprisonment as a penalty?
JUROR: It's more difficult to remain so.
THE COURT: Is it something you could in good conscience evaluate and think about with an open mind?
JUROR: Yes.
THE COURT: Or would you be, by your paternal extincts, compelled to go in the other direction, towards the death penalty?
JUROR: Right now, I understand my paternal instincts a lot better than I understand whatever facts may or may not come out of the case.
THE COURT: So are you suggesting that you could learn something in the course of the case that would override that instinct in this --
JUROR: I suppose anything is possible.
THE COURT: Just two more of the questions, 95 and 96. 95 asks, if you found the defendant guilty and you decided the death penalty was appropriate, could you conscientiously vote for it? And your answer was yes. The next question was sort of the reciprocal of that. If you found the defendant guilty and you decided that life imprisonment without possibility of release was the appropriate punishment, could you conscientiously vote for that? And you said yes. Do you have any -- well, I'll just leave it at that.
JUROR: I don't see these as exclusives to each other.
THE COURT: Okay.
MR. WEINREB: I have a few. Good afternoon. My name is Bill Weinreb. I'm one of the prosecutors in the case. I just want to ask a few questions to make sure I understand your answers.
Putting aside anything you may have heard about this case, just on your view of the death penalty in general, what is your view on whether all murderers deserve the death penalty regardless of the facts of the particular case?
JUROR: I don't have an opinion about that. I would want to know the case.
MR. WEINREB: So, again, putting aside the facts of this case, as the judge instructed you earlier, in a capital case, in federal court, if a defendant is found guilty of a capital crime and he's found guilty of an intentional murder, then the jury hears evidence of aggravating factors, factors that the government believes make it an especially bad case or a case worthy of the death penalty, and you may -- you may also hear evidence of mitigating factors, factors that would suggest that the death penalty was not an appropriate punishment because of the circumstances of the offense or because of something having to do with the defendant. Would you be able to consider both aggravating factors and mitigating factors in determining an appropriate punishment?
JUROR: Yes. I heard that explanation for the first time this morning. I might have previously thought that evidence is all presented for guilty or innocence. I didn't really understand that there might be further evidence after that. Beyond that, it's hard to comment on without remotely knowing what that evidence might be or not.
MR. WEINREB: Okay. So, now, you indicated you've heard some things in the media about this case and about what some of the aggravating factors in this case might be. And based on that, you formed an opinion. At the actual trial, if the jury were to find the defendant in this case guilty, the same thing would happen. If they were to find him guilty of a capital offense involving intentional murder, you would hear evidence of aggravating circumstances and evidence of mitigating circumstances. In this case, would you able to consider both the aggravating circumstances and mitigating circumstances, genuinely consider them, and weigh them in determining what would be the appropriate penalty in this case?
JUROR: Yes.
MR. WEINREB: I have nothing further.
MS. CLARKE: Yes. I was going to call you Mr. 76. My name is Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev. I just had a few questions if that's okay.
I get a little sense that you're very uncomfortable about perhaps serving in this case, is that right?
JUROR: Yes.
MS. CLARKE: Could you tell us why?
JUROR: Well, I expressed an inquiry that I have -- well, a concern about personal and career schedule issues, but I'm sure that's not your interest.
And I also -- I am concerned about how to go about impartiality given the circumstances of the case.
MS. CLARKE: Certainly. And the career and family scheduling coordination, I don't think we've heard much about whether that's a real hardship for you. Could you tell us?
JUROR: Sure. At a family level, my -- well, perhaps it's shorter to say that things are manageable if the process did not go to sequester. If it did, I would have no idea how to manage a few things.
And on a professional level, I have most of the imbedded knowledge personally for a very significant part of a project that means a lot to me that I also would not know how to deal with next steps.
MS. CLARKE: How would that affect you if you were in this trial for the next three or four months?
JUROR: That's what I'm saying. I don't know. For me personally, it would be upsetting. How things play out, I don't know. I suppose I would have lots of follow-up questions how things work.
MS. CLARKE: Would there be a financial hardship to you? Would you lose income?
JUROR: To some degree, sure.
MS. CLARKE: Could you tell us about that?
JUROR: I make more than the amount that was noted. That one isn't as high a priority than the others. It's not insignificant.
MS. CLARKE: I don't think anybody in the room is trying to create hardships, extraordinary hardships for folks. And I think that's what we really want to know about, is how much of a hardship that is for you.
JUROR: I'm much, much, much more concerned about schedule issues than financial.
MS. CLARKE: Than financial. Could you tell us a little bit more about the second thing that you mentioned a moment ago, that you're concerned about your ability to be impartial.
JUROR: Yes. I think I could say that for evaluating facts of the case to judge guilty or innocence, I understand how I could do that just fine and be objective.
If I'm asked to give a subjective opinion about whether one form of a penalty gets performed or not and it's truly my opinion as opposed to being governed by a set of rules that I'm expected to follow, then I have a real hard time with the -- with what I know of this case and how close it hits to home.
MS. CLARKE: In reality, in this case, it would be very difficult for you to consider life as opposed to death?
JUROR: From what I know now.
MS. CLARKE: From what you know now. And that's based on what you've read in the paper? Heard on the news?
JUROR: Probably several sources I followed.
MS. CLARKE: Could you help us understand what sources?
JUROR: Sure. At the time of the bombing and the days following, I was as attached to several different media sources as probably lots of people: television, internet, newspaper.
MS. CLARKE: And it sounds like, from a couple of the answers, that you've even discussed with your wife that you felt like the death penalty would be appropriate after a fair determination of it.
JUROR: I discussed schedule concerns with my wife. I thought that was -- to some degree, I think we were asked to go and find out work, home, otherwise, what the implications of possibly being seated would be.
MS. CLARKE: Nobody is suggesting you did anything wrong there. I was just looking at Question 75 on Page 19. "I discussed with" --
JUROR: I don't disagree with what that says.
MS. CLARKE: So, in part, your opinion is formed and solidified maybe by the discussions with your wife?
JUROR: Sure.
MS. CLARKE: Do you think you could really ever realistically step back from that opinion? You know, you know what the case is about. You know that it involves the death of a child. You know that it involves multiple deaths. You know that it involves bombing. You know -- you've written down your connections and how you were affected by it.
MR. WEINREB: Your Honor, I object. He doesn't know what the case is about. He doesn't know any evidence in the case yet.
THE COURT: I think in general terms, not in detail.
MR. WEINREB: -- any evidence of mitigating factors.
THE COURT: That's certainly true. The selection -- I think the selection -- the selective selection of considerations is probably not appropriate so it's sustained.
MS. CLARKE: In Question 77, if I could go to it because I'm really concerned -- I don't think anybody in the room wants you to feel like you have to give a correct response. You're a dad. You're concerned about this case involving the death of a child. You've expressed that. You've expressed concerns about impartiality. I'm trying to get at, you know, the depth of the opinion that you hold on the death penalty in this case. Do you --
MR. WEINREB: That's not an appropriate question because he doesn't know anything about all the facts --
THE COURT: The question is really more about predisposition and whatever tendency you might have now, the realistic possibility that you could evaluate the evidence, having heard it all, and have a view that would lead you to vote for life imprisonment rather than the death penalty.
JUROR: Yes. But I'm not quite sure I understand the difference between which evidence is presented when. I thought all evidence would be presented at the time of deciding guilty or innocence.
THE COURT: Not quite. So in the penalty phase, as you heard, each side has an opportunity to present evidence that might not be particularly germane to the central question in the first phase, which is, is the defendant guilty of this specified crime or not? Did he do the things that have to be done in order for there to be a crime of this sort? That's the first question.
The second question is, if that answer is yes and it was -- and the crime was a capital crime, such as intentional murder, then the question is: Okay. We have someone convicted of intentional murder. Now we have to decide what is an appropriate punishment between two available alternatives. One side will argue that there are things that make this worse than the average case and so that this defendant deserves a punishment greater than what some other person convicted of murder would otherwise get.
JUROR: That would deliberately not be presented in the first part?
THE COURT: Correct. And then after that presentation, there would be a presentation: But you should think about these things, which mean death penalty isn't appropriate, that the interests of justice are adequately served or properly served by the imposition of a penalty of life imprisonment without release. Both sides would be making their presentation. The jury will evaluate all those factors and come to some conclusions. So that's the second -- that's the penalty phase process.
JUROR: Understood.
THE COURT: And so what everybody is trying to get a handle on -- and maybe you're trying to get a handle on it yourself in your own mind -- in a penalty phase under those circumstances, not knowing what the evidence is going to be in any detail or even any identification in a sense, is your tendency to be in favor of the death penalty and perhaps even for this case, is that tendency strong enough that it would realistically exclude the possibility of you giving meaningful consideration to an alternative sentence of life in prison?
JUROR: I consider myself capable of looking -- of evaluating evidence and applying the laws that I am educated about in the courtroom in the way you're supposed to do it. When that becomes a subjective opinion, I think in this case I do have a predisposition. Of course, the first thing I said is I will be capable of listening to evidence.
THE COURT: Not just listening to but acting contrary to your predisposition.
JUROR: Oh, sure, if the evidence suggests otherwise.
MR. WEINREB: All right. You said -- I'm sorry. I thought you were done but go on.
MS. CLARKE: No. It was my turn but it's okay.
Could I follow up on that just a bit? And I have one other question I wanted to follow up on.
I don't think we want to leave you with the impression that there's a checklist you can go through in the second phase of this case. Like in the first phase, the presumption of innocence, proof beyond a reasonable doubt, sort of an evaluation of facts and coming to an objective conclusion. It is a subjective conclusion for a juror to make in the penalty phase that aren't rules that govern the decision. There are rules that govern the process of --
MR. WEINREB: Your Honor, I object to this.
THE COURT: I'm not sure that's an accurate statement of the law. I'm not sure it is really in the sense subjective. It's a judgment each juror makes. There will be objective criteria. There will be proof of circumstances that could be characterized as aggravating, proof of circumstances that could be --
MS. CLARKE: Sure.
THE COURT: Those are just as objective as other matters of proof in a --
MS. CLARKE: I don't want to mislead.
THE COURT: It's not just a choice by any juror. It's an evaluation of the evidence in a similar way to other fact-finding.
MS. CLARKE: Sure. I don't want to mislead you by any means that way. There's presentation of aggravation, presentation of mitigation. The jurors are supposed to find aggravation if it exists beyond a reasonable doubt; mitigation, there is a preponderance of the evidence. It gets very complicated. There's a weighing. But then it's an individualized determination of whether or not that justifies a sentence of death. Nobody can tell you how to make that individualized determination once the weighing is done.
And in a case that we're talking about, are you going to be able to weigh and make an individual determination of either sentence, or are you going to go to the death penalty?
JUROR: I can objectively evaluate evidence presented to me. When it's a subjective opinion, I understand my current tendency more than I understand where I'm going to be -- if I were to hear lots and lots of evidence, where I would be on the other end of that.
MS. CLARKE: After hearing all of these questions and us shooting some legal principles at you, are you still concerned about your ability to be impartial?
JUROR: Yes, on things that are subjective in nature.
MS. CLARKE: Judge, if I could follow up on one last question? Number 80.
Your friend, her daughter, and the friend's daughter witnessed the explosions. How did you learn about that?
JUROR: They told us.
MS. CLARKE: They told you.
JUROR: The parents told you.
MS. CLARKE: Did you talk about what that meant?
JUROR: With the parents, not with the children.
MS. CLARKE: What was the discussion?
JUROR: That they were there to see the husband of the friend run the Marathon. They were near the finish line. They saw and heard the explosions. They ran to safety. And I was told that everybody was okay, and they got back together with their dad. That's about it.
MS. CLARKE: I imagine -- or maybe you can tell us. Did that discussion make you put yourself in those shoes and worry about your child, yourself or your family?
JUROR: Sure. I happened to be at baseball practice with my son that day. Otherwise, we would go watch the Marathon.
MS. CLARKE: Because your family goes to the Marathon to watch?
JUROR: Sometimes, yes.
MS. CLARKE: So you worried at that time --
MR. WEINREB: Objection to the leading.
THE COURT: Leading, yeah.
MS. CLARKE: Were you worried, following that discussion, that that could have been you? I mean, were you trying to put yourself in their shoes and had an emotional reaction?
MR. WEINREB: Objection.
JUROR: I wasn't with them. I felt sympathy and concern when I learned that they were there. I didn't even know they were there.
MS. CLARKE: Thank you.
THE COURT: Did you have something else?
MR. WEINREB: I have literally two questions.
Would you be able to -- assuming this case went to a penalty phase, so the penalty phase begins. Would you be able to keep an open mind while listening to the aggravating evidence and the mitigating evidence and not make a decision until you've heard all the evidence?
JUROR: I will try because I understand that's the duty of a juror.
MR. WEINREB: Second question is: If I were to tell you that the jury won't be sequestered and that you will have Fridays off so that, except on school vacation weeks when you'll have Mondays off, but basically that the jury will only sit four days a week and will not be sequestered, does that have any impact on the hardship that this would be?
JUROR: Half of it. It relieves some of my concerns about the family side of issues. On the professional side, I would still be at a loss how to handle that.
MR. WEINREB: Thank you.
THE COURT: Can I come back to that last point? How are you compensated? Salary, commission?
JUROR: Salary.
THE COURT: Thank you. That's it.
COURT CLERK: 77.
MR. CHAKRAVARTY: Your Honor, I think there was an issue with this juror.
THE COURT: He's not here? I'm told by the jury clerk this juror didn't show up today.
MS. CLARKE: That makes that easy.
THE COURT: I had heard earlier that there was one juror. I didn't know who it was. I understand that our staff has made some attempts to contact him. Last I heard they had been unsuccessful; but if they do, we'll plug him in some other place as we have with others.
MS. CONRAD: Should we provide the Court with the information at this point?
THE COURT: I think I just -- I'll get a copy of that.
Okay. I think that then brings us to No. 80. We already did 79.
MR. CHAKRAVARTY: Your Honor, this juror also has something --
THE COURT: I guess the way they were summonsed, she's first thing tomorrow. She's the first one tomorrow. She's not here either. So we've run out.
So I think, as we did the other day, we'll take about a half an hour, and you can go over your notes and so on. Then we'll come back and have a discussion, which will be in sidebar mode.
(Recess taken at 2:50 p.m.)
(After the recess:)
(The Court enters the courtroom at 3:33 p.m.)