5.For-Cause Challenges and Juror Qualification Rulings
60 linesTHE COURT: Good afternoon, everybody. So we'll run through the jurors we've seen and have not already dealt with. First one is 83.
MS. CLARKE: No motion.
THE COURT: No motion.
MR. WEINREB: No motion.
THE COURT: Now, I have to keep getting my list of those that have been cut out. 84.
MR. WEINREB: Your Honor, the government moves to excuse Juror No. 84. She made it quite clear that imposing the death penalty is just an entirely theoretical consideration for her. She made -- she said pointblank she would never sentence anyone to death, and she's preventive as well as substantially impaired.
MR. BRUCK: No argument.
THE COURT: Okay. She's out.
I think we excused No. 85 early by agreement.
MS. CLARKE: That's correct.
MR. WEINREB: Yes.
THE COURT: 86 was done this morning. 87 was done this morning. 88 was done this morning. 90.
MS. CLARKE: I think that was also agreed.
THE COURT: Was it here? That's right, yes, you're right. She will be out.
92.
MR. BRUCK: No motion from the defense.
THE COURT: No?
MR. WEINREB: No motion.
THE COURT: Okay. 92 is in.
94 was previously excused; 95; 97. That brings us to 98.
MR. BRUCK: The defense moves to excuse this juror. I recognize that he gave the -- eventually came around to the legally appropriate responses. But we think, on consideration of all of the evidence, this juror should be excused. He filled out his questionnaire to say that he thought the defendant was guilty and further thought the defendant was -- should be sentenced to death. He later said he's an engineer, and he can put all that aside. Someone who thinks that somebody should be put to death based on their opinion of guilt has a very strong opinion of guilt. This is not a casual opinion, whatever he may say about it here. He also described an example of the sort of case that he believed the death penalty should be for. It's basically the government's case in here, the government's allegations for death in this case.
And so we think penetrating the -- all of the verbiage surrounding his voir dire, we really think that he is -- just has too much of an opinion. He tried to minimize his sheltering in place by saying, Well, I was working at home anyway that day. Sorry. Bear with me.
(Discussion held off the record.)
MR. BRUCK: Right. And that was also a juror -- I think part of our grounds for disqualification is that I was not permitted to ask a Morgan question in light of all the circumstances disclosed by this juror's questionnaire in his other answers. And I was also not permitted to ask the Skilling question, which is, What stands out? What do you remember? And try to get at some sense of the content of what caused him to have the opinion not only that this defendant was guilty but that he should also be put to death. So under the totality of the circumstances, we move that he be excused.
MR. WEINREB: Your Honor, the government opposes the motion. This was a juror who seemed to understand perfectly the difference between having an opinion based on rumor and just things you hear in the press, or I think the way that he put it was that he didn't even follow any of the news but that he was basing his opinion on what he called popular opinion, what he heard in the hallways. He understood completely the difference between that kind of judgment and the judgment that you're required to make in a courtroom. There was no need to probe more deeply into exactly what he heard or when he heard it because he made it quite clear that he had not heard much. And he gave no indication whatsoever, through his demeanor or any other thing, that he couldn't be taken at his word about his ability to be fair and impartial.
THE COURT: Yeah, I essentially agree with that. I think, based on not only what he said but, as you say, his demeanor. And I think he was asked and, I thought, satisfactorily responded that he would consider all the evidence in the case, and he could foresee being persuaded to vote in favor of the death penalty. And he could also foresee being able to vote for life imprisonment instead of that. I think he was fairly straightforward about that, it seemed to me. So I don't think he should be excused for cause.
Let me just parenthetically say about the so-called Skilling question, there was a question in the Skilling case that was paid attention to in the decision. The decision doesn't require that question to be asked in another case. The Skilling case was a very different kind of facts, very different kind of offenses charged. And it may have some relevance as a guidepost, as anything the Supreme Court says can be a guidepost. But it's -- I just want to note that it's not at the level of Witherspoon, Morgan questions. Just a -- close parentheses.
So 98 would be in.
99 was previously excused. We, I think, excused -- agreed on excusing 100 today on his exam.
Number 102, I think, is the next one to be considered.
MR. BRUCK: No motion from the defense.
MR. WEINREB: No motion.
[REDACTED]
MR. WEINREB: I believe the answer is that the Court's entitled to have these proceedings move forward in an ordinary fashion. And one way to ensure that is these kinds of issues should be addressed before the day begins, when the juror is here; and if the juror is here and the information is still not available, then it's possible to inquire of the juror. But to have the request be made, you know, during -- while the process is going on, you know, with the expectation that it's going to be handled during the lunch hour, that's not an appropriate or orderly way of --
MS. CONRAD: I noticed this last night. I raised it with Mr. Chakravarty first thing this morning, is my recollection. [REDACTED]Instead, we're relying on a handwritten notation that says "negative" as opposed to whatever printout was produced. I'm just asking for the printout. I asked that yesterday. We had that same --
THE COURT: What kind of printout gets produced when somebody doesn't have a record? Suppose somebody ran my record?
MS. CONRAD: It has the information, identifiers and so forth. Could I have that back? I'm not done. Thank you.
Kind of inconsiderate of the court reporter now.
When you run a record, you get a printout. If there's no record, it has the person's name, identifier. Then it will just have no entry. Sometimes it will have a restraining order or something of that like.
THE COURT: Are there records of that type, blank records, for people who don't have records?
MS. CONRAD: I mean, I don't know if the government printed them out?
THE COURT: In other words, does the Bureau of Probation have a record on me that would be blank?
MS. CONRAD: I think on a query they would get a printout result that would say no entries or something like that.
THE COURT: It would probably say don't know the person, don't recognize the -- do they have every person in the world in there? That just seems odd. You would have to come to the attention of the Bureau of Prison -- I mean the Board of Probation, B.O.P., in some way for the record to be created, I would think. Do we have any state prosecutors here? Yes, we have a state -- former state prosecutor.
MR. CHAKRAVARTY: A former state prosecutor as well as I've kind of asked the FBI to run these records. The instructions were, if there's no record -- and B.O.P. does not maintain a record unless there's some information that's input into B.O.P., which comes in a state court proceeding, either from a restraining order or from a criminal arrest or something else.
In some cases, like a clerk's hearing, for example, in the state system, they may have created a record, but there's nothing -- there's no data that actually makes it onto the record even though there was a record of -- you know, Al Chakravarty might have a printout, but there's no entry underneath it because perhaps the clerk never issued a criminal complaint. So there is identifying information without actually any substance.
If, in this case, the FBI, who ran criminal records checks for everybody, they first, in some cases, had to identify whether the juror was a particular person with whom a record was associated; and to do that, they looked at motor vehicle information amongst other things. So often there is a motor vehicles -- Registry of Motor Vehicle printout accompanying -- as I think your Honor has seen, accompanying a B.O.P. record and, in some cases, an NCIC or III, the Interstate -- the record.
In cases where there were no NCIC or B.O.P. positive hits, there was no paper generated to provide to the prosecutors or that we would provided to the defense.
THE COURT: So there is a RMV record if the person has a license?
MR. CHAKRAVARTY: There's a record of the --
THE COURT: Do those records link to each other? In other words, does the RMV record refer to a --
MR. CHAKRAVARTY: No. It's purely for identification. And along the same lines, it's not like the RMV record is a history of surchargeable events. It's rather just this is who this person is. It's used to help the data entry person identify that this is, in fact, the person with whom this record is associated.
With regard to this particular individual, this morning, Miss Conrad and I did have a have brief conversation, she recognized, as I have from time to time, we'll see that somebody reports on Question 40 that they have some involvement and then we have no record. There could be a variety of explanations. I think there was one person yesterday, and I think Miss Conrad mentioned there was somebody today. There were several individuals who had criminal records today, but in this morning's proceeding, they all washed out with the exception of one who, I think, was the person who called in sick or was unable to come today. It was at that time that Miss Conrad recalled that this was a person that was somebody who listed a record on her Question 40 but for whom we did not have a printout. So, in practicality, we really didn't have time to go back and look.
I think what it suggests is, if there's a situation like this, that if we have advance notice before the juror is here, before the day begins, as Mr. Weinreb was explaining, we would be happy to spend the extra time to go do it. But afterwards it seems like it's just a recipe to create some issue with the juror when they forewent the opportunity to interview the person while they were here.
THE COURT: So my problem is that if you had raised this while she's still available, we could have asked her about if and cleared it up.
MS. CONRAD: But -- may I?
THE COURT: In other words, we could have said, You reported this incident.
MS. CONRAD: Do you know why there's no CORI record of it?
THE COURT: No. Just tell us about what happened. She might, in her nonprofessional, non-legal professional way, describe, for example, a clerk's hearing at which no process issued, which is, I think, not an implausible scenario for this.
MS. CONRAD: Okay. Point taken going forward. However, I still think that the request that the government -- there's a possibility that the recording on the spreadsheet in handwritten -- I've got a copy of it here if the Court wants to look at it -- "negative" could be an error given the number of people we're talking about. So it doesn't seem asking too much for the government to provide the printout.
THE COURT: Yeah. Run it again.
MS. CONRAD: Thank you.
THE COURT: Let's try to raise issues that can be followed up with -- when the juror is still here.
Apart from -- I forgot where we were with this juror. No challenge, right? She's in.
103 was previously excused; 105; and 108 we dealt with by indication. 109 is the one, I guess, who had the flu, is that -- Jim?
COURT CLERK: She is still --
THE COURT: And so Jim is handling that. When she's able to come in, we'll have her in.
MS. CLARKE: 110 is gone.
THE COURT: Yes. Let me just -- there was something I was going to bring up I thought related. Anyway, go ahead.
MR. WEINREB: So the government had a proposal, which I believe defense concurs in, which is, the process this morning was very productive in the sense that the Court's proposing a list of jurors who appeared like they might be excused, especially for hardship, sort of focused the parties' attention on those and led to a lot of agreement.
If we could get a list like that from the Court in time to get back to the jury office and get the -- our agreement to them so that the jurors could be called off, then we wouldn't have to bring them in.
THE COURT: Right. We're going to try to do that. On that, I have two for tomorrow, two and a half. So 114 appears to be a full-time student. And in an advanced sense, 125 is also a student who says he has to defend his Ph.D. dissertation on March 11th. I thought we ought to let him prepare for that.
So those are my two suggestions. You might take a look -- these are people that -- I just -- they're not the same. They're not clear hardship or self-employment, but the totality led me to think there might be a high likelihood you might agree on it. And that would be 122 -- I think that's it, just 122. So those are the ones that will be in tomorrow's pool.
We're going to try -- actually, I'm thinking of ways successfully to push this out over a longer horizon to reduce those that are in this category that are a clear hardship, clear financial burden, and so on and propose those. But to then sort of, I guess, bring in for consideration those pools that are free of those people and that I think it may help us pick up the pace because the likelihood of someone being chosen or not increases, it seems to me, when the people don't have these -- when the pool doesn't have people with these kinds of qualifications in it. In other words, we're going to kind of make it -- as a general matter, each day's pool will be more plausible jurors than having these people in, these kind of people. So that's a project we're going to work on. Yeah.
MR. WEINREB: Just one other thing. Go ahead.
COURT CLERK: No. Go ahead. And I'll say my idea after.
MR. WEINREB: With the Court's permission, we were intending, at least for the time being, not to submit written requests for follow-up questions.
THE COURT: Yes. That was the other point I was going to try to make. In light of the fact that we've now been allowing the follow-up questions, I think that's sufficient. As I went through in the first couple of panels and tracked both of your submissions, I'd say 90 percent of them were things I had already noted. Occasionally, there was something I had overlooked, and it was brought to my attention. But I think it's, frankly, a waste of your time to be compiling documents like that when we're pretty much focusing on the same things. And to the extent I have missed something, you see it in the questionnaire and want to focus on it, we can do it that way. So, yes, I don't think you should have to do those filings anymore.
Jim?
COURT CLERK: I think entirely different than attorneys think, so I just want to point out, for example, the judge mentioned three jurors for attorneys to look at. They're in my next group of 20 people. If the attorneys agree to strike those, our pool now gets down to 17. Does your Honor -- I assume you want 20 people in. I know how you guys think. You guys think of blocks of 20. You might want to look out a few more. I would assume, if we want 20 people in, we would call in 137, 138, and 139.
THE COURT: I guess my reaction is wait a day on that. I want to think through and maybe play with the questionnaires a little bit to see how things look. I don't know the answer to the question from my own perspective. My hope would be that as we -- again, as we get more experienced with this process, we may be able to even, even with respect to the people we have here, you know, move the process forward a little faster. But I'm not sure exactly what it's going to look like.
But there was another point that I thought you were going to make, and that is, with respect to the people for tomorrow, if you could let Jim know this afternoon so he can tell those people they don't have to come in rather than have them come in.
And if you, independently of our process, see other people, say, for tomorrow, that you, on reflection now, think you could jointly agree to, if you could give us that list so I could look at it since I want to have the last word on it. And if there was anybody that I thought I might disagree, we'd bring that person in. The others also could be excused. So if you want to take a look at tomorrow and see if there are people like this morning's people that could be eliminated beyond the ones that I've identified.
And then -- at some point, obviously, if we're just bringing in nine to eleven, that's not satisfactory. We should have more than that. But I want to see -- I want to get things stabilized a little bit on this new regime before we fully commit to that. Thank you. Take the rest of the day off.
(Whereupon, at 2:35 p.m. the trial recessed.)