3.Defense Requests for Expanded Voir Dire and Limits on Questioning
5 linesMR. BRUCK: No.
We filed this morning a third request for follow-up voir dire questions, and I just wanted to very briefly explain what that is. We have re-filed publicity Morgan and Witherspoon questions, some of which are the same as the ones we filed before and some of which were different. It seemed better to file a complete new list each time we made substantial changes rather than asking the Court and asking the record to keep track of various discrete additional requests. So basically, this is everything. We don't mean to withdraw anything that's been asked before, but this is, going forward, the requests we're making. We also have some requests concerning the way voir dire is being conducted.
First, we would ask that the Court explore the facts before instructing the juror; that is to say, to find out what the juror thinks, what the juror knows, what the juror has heard, the basis of the juror's opinions, if they have any, before telling the juror what the law is and their obligation, if they can, to put those opinions aside.
We think that it's important to understand the underlying facts behind the juror's opinion in order to assess its strength, and that's why we're asking that it be done in that order. The particular questions that probe for the facts are listed on the second page of our request.
We appreciate the latitude the Court has given us, and to the extent the Court does not itself ask these questions, we would -- we will seek to ask them ourselves, but we think it's better for the Court on the initial round to ask probing questions of the jurors because the Court has greater authority and greater prestige with each juror, and we just think we're going to get better results if that is done.
Second, the Court called me out more than once for asking leading questions over the last few days. It's not my place to critique something that I have never done and you have done for many, many years, but the fact is that when the Court has explained the legal principles to the jurors, we think the record reflects that it has done so in a leading manner, that is, a manner which conveys in the way the -- in both the quickness with which the Court goes to the legal matters after the opinion is expressed by the juror and the way the question is asked, we think it conveys very powerfully to the juror what the juror should say; that is to say, that the Court wishes the juror to be able to say, or to say, that he or she can put his opinions or her opinions aside and follow the law.
There is great social pressure for someone to say, "Yes, I can follow the law." It's hard for someone to say, "No, I can't follow the law. If you tell me to do something, I won't do it. I can't do it." That is hard to do. And it's harder to do it if the questions are posed in a way that invite that pro-social response of, "Yes, I could put my feelings aside."
So we're asking the Court to be mindful of that problem so we could get to where the jurors really are given the exposure -- extraordinary exposure not only to publicity but to direct personal experience of the Boston Marathon bombing and its aftermath.
Then as to the questions that we're asking for, as I say, some of them are the same. We have added the question which we have attempted to ask of some jurors about, "How did you find out about the bombing?" that is Number 2, "Where were you? How did the news make you feel? And what, if anything, did you do?" And then Number 3 is, "Where were you and what did you do on April 19th?" That gets to shelter in place and is particularly appropriate for jurors who say they had no personal contact with the bombing or its aftermath even though they lived in an area where there was a general shelter in place in effect.
We continue to believe that Number 6 is a very appropriate question in some cases, for jurors who seem to be especially non-forthcoming, and raises the question of whether they are curtailing their responses or changing their responses in order to be picked to serve. And then we have rewritten Morgan questions to take into account the government's objection that we don't talk about mitigation before asking jurors whether they could ever vote for a sentence other than death. So we actually give examples of mitigation and then ask the juror whether they could consider mitigating factors and ever meaningfully consider a sentence of less than death in a case involving terrorism with multiple victims, in a case involving the death of a child. Our Witherspoon questions are unchanged.
So again, our overall request is that we prefer the Court to do the bulk of these questions with our being able to follow up, but we appreciate the latitude to ask these questions ourselves should the Court feel that is more appropriate.
THE COURT: Mr. Weinreb?
MR. WEINREB: Your Honor, as a general matter the government objects to these requests. And I say "as a general matter" because I think if the Court were to determine in a particular case that asking one or more of these questions made sense, we wouldn't necessarily object to it. But as a general matter, asking jurors the basis of their opinions I would suggest starts off voir dire in the wrong direction. It gives the jury -- it would suggest to the jurors that all the things that they have heard and seen in the press and the things that they have -- the opinions they formed based on that is the important thing in this case, the important thing going forward, when they're not. The important thing is the jurors' ability to put aside what they have heard and what they might believe based on what happened outside the courtroom and decide the case based on the evidence inside the courtroom.
And I think that that same consideration counsels against asking in detail how you first heard about it, how did the news make you feel and so on. It suggests -- it will suggest to the jurors that all of those things are the essential considerations for them when, in fact, they are not.
And that leads to the third request which I think also -- I think we disagree with the premise of it, which is that the Court has asked leading questions about the jurors' ability to be fair and impartial. A leading question would be, "Now, you can set all that aside and decide the case based on the evidence, can't you?" And "You can apply the presumption of innocence, can't you?"
That's not what the Court has been doing. The Court has been simply asking -- instructing them what the law requires them to do and asking them whether they can follow the law and do it. That is the key question. That is where the jurors' minds should be focused.
They need to begin the process today of putting aside everything they have heard or might have thought about the case and focusing on their duty, their obligation to decide the case based solely on the evidence applying all the legal principles. And we would suggest that the best way to begin the process of encouraging and helping jurors to do that and making sure that they can do it is by approaching the task of questioning them in that way, in a way that is consistent with that goal.
As for the Morgan questions that are proposed, we have the same objections to them that we've had all along. They're very specific about particular factors that will be essentially aggravating factors in this case. They are extremely general and non-suggestive, nonspecific about mitigating factors. The jurors are almost certainly going to hear, if this case proceeds to a penalty phase, a very in-depth, vigorous presentation of mitigating evidence along with lots of argument about why these factors are important and should make a difference. These questions do not even begin to convey any of that.
The jurors know virtually nothing about this defendant or anything that might mitigate the crimes. They may -- you know, the facts of the case themselves tell them a great deal about what might aggravate the crime, and it's simply misleading to ask the questions in this way because it suggests to them that is where they will be at the end of the process rather than, you know, where they are just coming into the process.
So again, we don't think Morgan requires that. It's not about that; it's about predisposition based on general views about the death penalty. And so this would both be unrequired legally and unwise.
MR. BRUCK: If I may respond very briefly, I don't want to prolong this unduly, but I do ask that the Court be mindful of the fact that if to the extent that the voir dire fails to plumb what the jurors are really thinking, the government is advantaged and the defendant is disadvantaged. We do not have an equal stake in this voir dire; and thus, it is unsurprising that the government asks for relatively formulaic probing whereas we are asking for something more.
I hope the Court will be mindful of the fact that we are sailing in unchartered seas. By that I mean that so far as we are aware, there has never been a court that has attempted to seat a jury in a community that has had an experience of the type of the Boston Marathon bombing. If it happened before, we don't know about it. And that means I think the Court must look with particular care at this process of eliciting the biases, the experiences, the opinions, the feelings, the emotions of these jurors. And that is the basis of our request.
THE COURT: Okay. I have your requests in mind. I think by and large the manner in which we've conducted the voir dire has been successful, and I don't think I intend to make major changes in it. We've had the discussion about how to ask the questions about Question 77. I agree with the government with respect to that, that detailed questioning about what the juror thinks he or she knows about the events and the sources places the wrong emphasis for the juror. Many, obviously, have views about this because of the extensive publicity. That's far from limited to the local community. And to emphasize them, I think, misdirects things a little bit.
It's been my experience over the years that jurors take their responsibilities very seriously, including particularly the obligation to hold the government to its proof. I think reminding them of that is not -- and getting their reaction to that task that they will have, knowing what they know, I think is a way of determining whether the juror is prepared to undertake the service that we might ask of him or her.
Jurors tell me from time to time that they can't do that, so it's not an automatic answer, and it's one, of course, that we make observations of the juror as well when he or she is answering that question and can form some judgments about whether that's a rogue answer or a sincere one and a commitment to look forward to the presentation of evidence rather than look backward to the exposure to the events.
So in general I'm satisfied with the course we've been following and, again, subject to adjustment as necessary for each witness -- sometimes we do have to get more specific because of what the juror says. But generally, I think as I say, I'm satisfied with the method we've been using.
So let's call in the first.