9.Juror Challenges and Qualification Rulings

MS. CONRAD: So her sister goes to this wedding, and I guess she had heard about the connection. And she said she hasn't met the cousin or the cousin's husband, new husband. But that doesn't mean that, you know, a family gathering -- let's say the sister -- there's a family funeral, there's a -- for the in-laws, there's a wedding for the in-laws, the cousin's going to be there, just like the sister was at the cousin's wedding. And this is somebody who was grievously injured in the bombing and was treated by -- during the recovery at Spaulding Rehab -- by this sister's cousin. And it seems to me that that's too close a connection.

In addition, when she was asked about whether she could presume Mr. Tsarnaev innocent, she said, "I think so." But she said, "I know how I feel. I feel pretty strongly. I don't know if I could change my mind." And it seems to me that that combination of factors requires that she be challenged as someone who cannot be fair and impartial.

She also -- everything was a little -- well, certainly short of certainty. She thought she could abide for the most part -- oh, I'm sorry. That had to do with following directions not to listen to anything.

Right. She also is uncertain about whether she'll get paid. So she's somebody -- it's unfortunate that she didn't speak with her employer before she came back in today, but it seems to me there's a high likelihood that even if she got on, then she would later on find out she can't get paid and she's going to want to get off.

MS. CONRAD: I had more for her, actually. I think, for example, she said in response to Question 78 as far as whether you expressed your opinion to anyone else, she said, "I expressed that I couldn't imagine what evidence would come forth that would prove him not guilty. And I hope this case would" -- I think it says "would not get moved elsewhere." But I certainly would have asked her about "I can't imagine what evidence would come forth that would make me prove him not guilty."

Now, your Honor did ask about the presumption of innocence and the burden of proof, but it still seems to me that that question bears exploring.

I also would note -- this is a more general point, but maybe it's appropriate to raise it now -- your Honor is framing the presumption of innocence as at the outset a defendant is presumed innocent when, in fact, the law is that the presumption of innocence remains with the defendant throughout the trial. And so we would object to the framing of "at the outset."

In addition, your Honor's saying, "Can you suspend your mind?" Well, it's more than suspending your mind to presume someone to be innocent. And I certainly would have explored that more with her had I not believed that she was going to be excused by agreement.

I think -- you know, the fact that she hasn't met this cousin doesn't mean she's not going to meet this cousin in the future. And to have a social or family interaction with someone who was grievously injured and whose cousin helped bring them to at least some improved health and have to face them as a juror who potentially voted to acquit the defendant or rejected the death penalty it seems to me is going to be far more than just an awkward social situation when and if it comes up, and presumably it will come up.

When her sister's husband has a death in the family or has a wedding in the family, the cousin's going to be there, just like her sister was at that wedding. Who knows. It could even happen during this trial.

MS. CONRAD: Oh, I'm sorry. I'll go back.

No, I don't think I am.

MS. CONRAD: The other thing I would have asked her about is Number 93. She said -- I certainly would have asked her about that. I had it on my list of questions. She says as far as life imprisonment, comparing it to the death penalty, "as long as he doesn't get solitary. Put him in with the general population which, in my view, is less humane than death."

Now, numerous people have commented online, news reports, "Oh, why don't they just put him in general population and that will take care of him." And it has that flavor of sort of street justice. And I certainly would have asked about that had I not thought that there was no need for further questioning.

And if there is -- if she's not going to be excused, I would suggest that maybe she be brought back, we ask about -- or maybe ask her to ask about the payment issue, and I be given an opportunity to follow up on these points that I didn't follow up on.

MR. BRUCK: Yes, your Honor. 69 we do have a motion. And here, this is a somewhat unusual juror in that our concern comes from what was not said. This is the case of the dog that didn't bark.

This juror occupies a very highly placed position at Mass. General. We recognize it's not physically in the hospital building, but she -- her questionnaire seems to have been studiously avoiding acknowledging things which any well-educated, aware person in Boston would likely have known in her position. The fact that the President of the United States visited Mass. General, her hospital, three days after the bombing and toured the facility was something that she did not know, hadn't heard or didn't remember, strains credulity.

The President's host during at least part of this tour was a witness in this case, Dr. David King, who's the subject of a motion in limine from the defense to exclude his testimony. There is a lot of Mass. General in this case, and this is a lot of risk.

Now, on top of that, this is a person whose work -- when she goes back to work on Friday has access to patient records. She won't go looking for them -- or at least we haven't established that she will -- but they could pop up without any warning at any time.

She is just very deep into an institution which is very deep into this case in a legal sense, in a factual sense, and also in an emotional sense. This is some very, very compelling, emotionally gripping testimony having to do with Mass. General. And it just seems that her imperviousness to this is suspicious. Everything about her responses shout that she wants to be on this jury. She wants to be on this jury badly. She is auditioning for this jury.

It's a discretionary call, I realize. We're asking the Court to draw comments and conclusion from things that were not said, but I think the conclusions are very clear, and that this lady -- given the challenges that we're facing in trying to find a jury in Boston, this is the kind of eyes in the back of your head that I think the Court has to have. There are many more jurors in the pool, and I think we should go past this one.

MR. BRUCK: Your Honor, we move to excuse Juror 74 based on the totality of the personal involvement that she has in this case. We recognize that she is a very appealing young woman who was trying very hard to think about being impartial, but there's just too much here.

She was in -- she was living in Watertown at the time, or on the very border, considered herself living in a Watertown community. She would have sheltered in place had she not been out of town. Her boyfriend and his roommates sheltered in place. She is a graduate of UMass Dartmouth. There's going to be a great deal of testimony about her alma mater and about how this greatly impacted and afflicted the university she went to.

In that connection, one of the witnesses on the government's witness list -- on the witness list -- is Professor Williams, who was her history professor, she said. She did not identify him on her juror questionnaire as a witness and -- although his name appeared. It could very well be that she'll find herself having another history lesson from her professor in this case if the government calls him and has him testify. There is going to be -- there well could be expert-type testimony about the sorts of areas that he taught. She was a history major.

I have to say this could well be the first case in which -- in the history of American jurisprudence in which the jury bought the T-shirt before they sat in the jury box, and this is one of those jurors. She was given a Boston Strong T-shirt. She wears it every other week. She ran in the Watertown Strong 5K race. She talked very articulately about the meaning of Boston Strong and what it signifies.

And then there are her brothers. And that was the point I think when she really -- her conviction that she could be impartial flagged for a moment. She had to consider the question -- or she did -- was asked the question about "If there was evidence that this crime was committed because of the American war effort in Iraq and Afghanistan, would that affect your impartiality?" And she really wavered on that. In the end she said she thought she could put that and everything else aside, but it's too much to ask.

You know, to compare this juror to a normal trial where none of these issues come up for any of the jury -- members of the jury panel, again, it's -- you know, imagine 12 jurors that had her confluence of experience with witnesses, with ties, with connections, and no one would think we had a fair jury. Well, what's true for 12 is true for one, and with all due respect to this young woman, who's very admirable and very likable and doing her best, but there's just too much here.

I think in the Court's discretion and to guarantee the right to a fair trial, she should be excused.

MR. BRUCK: If I might very briefly, I mean, it raises these odd questions, the government now offers to trim their witness list around a juror. It's conceivable that Professor Williams would be a witness for us, although we don't -- I mean, it's not beyond the realm of possibility.

It raises these strange questions: Does she keep wearing her Boston Strong T-shirt while she's on the jury? The brother -- she said one thing that was quite emotionally powerful. It was understated. She said he doesn't like to talk about it. And that speaks volumes. I mean, I know she was thoughtful but this is -- she was hit with this for the first time. What is behind that silence of her brother's and what does she think is there and what judgments does she make about what he experienced and what the cost was to him? And then to find out what was written on the boat, if she hadn't already read about it, there are just too many questions.

MS. CONRAD: Yes, your Honor. We would challenge him based on hardship. He has said that he works on 100 percent commission. He said he could lose lots of clients if he was on this jury. He said that if he were on this jury for three to four months, his business could fall apart and that that could be distracting. And throughout his answers when asked about impartiality, he interspersed the phrase "aside from my business." And it seemed to me that was an ever-present concern on his mind.

He started out -- actually, when your Honor asked about whether he had followed recent events in Europe he said, well, he's been very, very busy at work. And although he said he could do some of his work at night and on weekends, obviously he couldn't do that work to the same extent that he appears to be doing it now.

And I would submit that his concern about loss of income and also the overall lasting effect on his business in terms of loss of clients is one that would interfere with his ability to serve in this case.

MR. BRUCK: Yes. Juror 76 -- and I'd like to say at the outset this was a very long examination. It was complicated. Depending on the Court's inclination at the end of hearing us out, I think this may be a case where it might be best to defer a final ruling until we can review the transcript. But I don't think that should be necessary because I think it is reasonably clear that this juror should be disqualified.

Let's look at what happened to him. He first said that he -- not first, but he said he believed the defendant to be guilty and he believed the death penalty should be imposed. He said that he had told his wife that he thought the death penalty should be imposed. Later, on voir dire, he did not recall that. When it was pointed out to him, he acknowledged that that was so.

I don't mean to suggest this is not a candid juror. On the contrary. I think the problem with this juror was that he came to court thinking that all of the decisions that a juror has to make are simple, factual ones. And he said this several times over, that as to the factual issues, he could put what he had experienced and learned and knew out of his mind even though had had paid a great deal of attention to the media in this case, but as to -- what was the term he used -- "subjective," by which I think he used that as a synonym for "discretionary," the jury's discretion, he didn't realize that juries exercise discretion until you explained it to him and until the parties explained it to him, and then it became clear that there were two types of decisions that he had to make, and he could be unbiased as to the facts but he could not be unbiased as to subjective decisions, discretionary decisions, what the Supreme Court has called a reasoned moral response to the evidence that is required of every juror in a capital case.

And then let's consider where these problems came from. He has a daughter -- I think a son who was ten and a daughter who was six. His friend took her children and her children's friends, including an eight-year-old child, to the marathon, and were so close -- I mean, they were there when the bombs went off. He heard about it from them.

He thought not only in a general way that this could have been his family, his children, but quite specifically said, "If we hadn't gone to a baseball practice that day" -- and he's not just thinking that he could have been -- that he could have been in his friend's situation; he's thinking he could have been in the Richards' family situation. That is clearly what was weighing on him. You were a little bit closer to him than me, but it looked to me like he was on the verge of tears, and this is a very controlled man.

His answers were remarkably clipped: "Yup." "Yes." He was cutting the words off in a way that suggested a real struggle to maintain control of his emotions. And who can blame him given these facts?

He also sheltered in place. He described the -- his direct personal involvement, the impact of the events of April 19th on him and his family.

Again, you know, the premise of being able to try this case in Boston was that there are 5 million people here. Well, there aren't 5 million people who have a story like that to tell.

There's no disrespect to this man. On the contrary. He is an admirable guy trying to be a citizen in the most admirable way, but that duty involves telling the truth and sorting out your feelings. And he finally did that.

Now, he gave answers which you can take out of context and say, Well, he did say he could do this and he did say he could do that, but we know what is really going on. And when he was speaking in his own words, he kept coming back to, "As to the facts, I can put this out of my mind. I can be objective. I can presume him innocent" or whatever, but as to the subjective issues, the fact that an eight-year-old boy -- his own son was eight years old two years ago, this is -- he said at one point in his own words, "I am concerned about my own impartiality." That's -- you know, the fact that he could be led to say, Well, but I can still do my duty, that doesn't help.

This juror really is not -- this is not the -- he would be a great juror in another case, but this is not the case for him.