3.Voir Dire Rulings on Death-Penalty Questions and Presumed Guilt
14 lines(SIDEBAR CONFERENCE AS FOLLOWS:
MR. BRUCK: Thank you. First, your Honor, we would like to register an objection and move that the Court not permit further questioning along the lines that are found at yesterday's transcript at 7-98 and 7-99. Counsel for the government asked a juror, "Can you -- my question is simply can you imagine yourself on the jury thinking about whether this person sitting at the table should live or die? Would you be able to if you thought it was the appropriate punishment? Would you be able to sentence him to death?"
We think that that is asking for a commitment not to be able to impose the death penalty in an appropriate case but a commitment to sentence this defendant to death. It is, in effect, conditioning the juror to render that verdict, and we think that goes much too far. If ever there was a stakeout, that's it. It's one thing to ask whether or not, in an appropriate case, the juror could actually impose a death sentence, making clear that the question is general, but not, Look right over there, you know. Look that man in the eye. Can you sentence him to death? That is a commitment. Granted, it's a conditional commitment, but we think it's highly prejudicial and improper, and we don't think the question should be asked.
MR. WEINREB: So, your Honor, the proposition the government is trying to establish in asking that question is simply whether the juror can only consider imposing the death penalty as a hypothetical matter or whether they could actually envision sentencing another human being to death. In asking whether they could sentence this defendant to death is just a way of making that proposition concrete.
But I think Mr. Bruck's objection is -- can be accommodated by the government simply by rephrasing the question by saying, Can you imagine considering whether a human being -- you could sentence a human being to death?
THE COURT: We've had that general question with a couple of jurors -- more than a couple perhaps -- whether the juror could actually take personal responsibility for a verdict that would result in the death penalty for an individual. And I think that focusing particularly on the defendant is unnecessary and should be avoided.
MR. BRUCK: Thank you.
The second matter, your Honor, something happened yesterday that crystallized our objection or our concern about the presumption-of-innocence questioning of jurors who hold an opinion that the defendant is guilty. The Court -- both the government and the Court has been asking jurors whether they -- who hold an opinion of guilt, whether they could, in effect, suspend that long enough for the government to prove its case, if the government can. And jurors will -- some jurors have said, yes, they could do that.
The juror -- I'm missing her number, but it is the juror who is the social worker from Mass. General -- responded to that question by -- you said, "Well, if the evidence wasn't convincing, could you put aside your prior conviction?" And she said -- she answered, "If the evidence was not convincing, where is the prosecution? You're killing me." And there was some laughter in the courtroom. And then she explained later, "But I can't imagine not being convinced by the evidence."
Now, that gets at something very important that is going on here. Jurors who know this case and have -- who know -- are familiar with the enormous volume of information that has been put out and who have personal -- many of them personal experiences with some aspect of the case, have a -- are likely to have a very high degree of certainty in their own minds coming to court that the defendant is, in fact, guilty. So the question, Could you put that aside and require the government to prove the defendant's guilt before you rendered your verdict, asks them to do a very sterile and, in effect, meaningless mental exercise. It's a little bit like saying, to use an absurd example that I think makes the point, let's say a lawsuit -- a case involved the question of whether pigs could fly. And the government's position was that the pigs could not fly. And the juror would come to court and say, Well, I believe that pigs can't fly. The juror was asked, Could you put that opinion aside and weigh the evidence on both sides? And if the government failed to prove that pigs can't fly, would you find that they could?
Now -- and the law requires you to do that, and that's what you're supposed to do. That's how our legal system works. Now, a juror could say, Sure, no problem. I could do that. But they could only do that knowing what the outcome was going to be from the beginning. There would be no suspense. It is not a real question.
And I think that's what's happening with some of these jurors. And this juror, the social worker from Mass. General, really brought that home when she said, "But I can't imagine not being convinced by the evidence." She went one way. Other jurors could say just as easily, Well, it's a theoretical proposition, but, sure, if for some reason the government became catatonic at the start of their case and failed to call any witnesses and the FBI went on strike and there was no evidence presented, sure, I could find Mr. Tsarnaev not guilty. I know it's not going to happen, is what they're thinking, but I could do it. And that is why we really think that these questions do not rehabilitate jurors, and they're unfair for that reason.
For a great many people, the trial of guilt or innocence is over. It's already taken place. It took place in the news media. It took place in their day-to-day lives during the -- in the days after the bombing and the months after the bombing. And they can tell you anything and be honest and be truthful. But it has no legal meaning. It has no real factual significance.
And that's why we think that these rehabilitating questions are simply inadequate to do the job. There may be jurors who really don't have a strong opinion, but for the ones that do, we think that what is happening here is simply not adequate to assure a fair and impartial jury.
MR. WEINREB: So, your Honor, I disagree with Mr. Bruck. It seems to me that what he is -- he is calling into question the adequacy of a criminal justice system in which people drawn from the community are called upon to decide the guilt or innocence of their fellow citizens. The Supreme Court has made it quite clear that there is no problem with seating jurors who have knowledge of a case and who have formed an opinion about a case. And, in fact, they have -- the Supreme Court has said repeatedly that, in a situation where you have a highly publicized case, any intelligent member of the community is likely to have formed an opinion and possibly a strong opinion.
The goal is simply to ferret out those who can go through the exercise of suspending that preconceived belief and deciding the case on the evidence from those who can't. And that's the process we've been undertaking here. And the most important part of that process is the Court's ability to observe their demeanor and hear their answers and size them up as whether they're both being honest about it and whether they really -- what they're saying can be trusted and is reliable.
And the government sees no evidence that that hasn't taken place in this case. There's nothing particular about this juror that I would submit exposed anything, any weakness or problem in the process. This is an example of the process working. This is a case where follow-up questioning, probing questions by the Court and the parties helped elicit the strength of this particular juror's beliefs and her ability to do one thing or another and the -- this is the proof that the process is, in fact, working.
So to the extent that Mr. Bruck is arguing that anybody who says they have a preconceived opinion about the defendant's guilt or innocence cannot lawfully sit on the jury, the government believes that's incorrect.
MR. BRUCK: That is not our position. By the way, it's Juror 90, is the juror to whom I was referring. Mr. Weinreb says, it's a question of whether the juror can suspend their opinion -- opinion. That is not the test. It's a presumption of innocence. It's a frame of mind which truly regards the defendant or is able to regard the defendant as not guilty, not simply entering into a mental exercise, a sort of a make believe in which we're going to pretend until our opinion -- until my opinion is confirmed by evidence that he's not guilty, and then I'll go back to thinking what I thought before. That's not a fair trial and that is not the presumption of innocence.
There are -- I don't -- we do not contend that every juror is the same. We do contend this case can't be tried in Boston. Of course, we have made that motion several times. Certainly nothing that has happened causes us to retreat from that conviction.
But assuming we're going to try to get a jury here, and that's what we're here to do, there are jurors who have different levels of conviction. I'm thinking about -- there's a -- about jurors who say not only that they believe the defendant to be guilty and think he should be sentenced to death but that they come to court having filled out a questionnaire that says they cannot put that opinion aside. And then they are questioned according to these formulas and say, Well, I think maybe I could or, Yes, I think I could. That's where the problem is, or that's an example of where the problem is.
THE COURT: This is a matter that may vary in degree from case to case, but it doesn't vary in kind. It's a problem that we face commonly, particularly if there's been a good deal of publicity in cases. My experience has been that jurors can be examined about their self-assessment of their ability to do what is required of them, to listen to the evidence in the case, and to make a decision based on that evidence. Of course, I've seen publicized cases where the jurors come out contrary to the public pressure because that's what they've done. They've set aside whatever impressions they may have had and focused on the evidence that they actually heard in the case.
We can keep debating this. As I have said on a couple of occasions, we use the presumption of innocence as a term of legal art to describe the requirements of the justice system in proving somebody guilty of a criminal offense. Jurors are not likely to understand it in the technical sense that we typically use it but rather in some lay and perhaps even idiosyncratic sense.
This is not a -- there's no scientific way to answer the question whether a juror can -- who has some impressions will stick to them or will be open to changing, altering, even rejecting them at trial. The best we can do is ask jurors for their honest self-assessment when asked to do what they will be asked to do at trial. Can they focus on the evidence that is presented, consider the instructions of the law regarding the offenses and then make a verdict -- deliver a verdict that resolves factual issues and applies the law? Can they do that faithfully without requiring the defendant to prove that he's not guilty?
We ask them to tell us. And as we assess what they tell us, it's not simply the words they use but the manner in which they say it, the context in which they say it and so on. So it's not simply focusing on a particular segment of their answers, but it's an assessment of them as a person who sits here, has expression and so on.
MS. CONRAD: Your Honor, may I say something about this?
THE COURT: No. Well, let me finish.
MS. CONRAD: Sure.
THE COURT: Anyway, so I understand your view on it. I think the way we've been handling it is proper. Miss Conrad.
MS. CONRAD: Thank you, your Honor. Sorry. I thought you were done. I apologize.
Yesterday Mr. Weinreb said something that really struck me. And this is, I think, on Page 20 of the transcript. He said, "The Court has been simply asking," and then he stopped himself and said, "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."
It seems to me that is not where our inquiry should be focused. It should not be focused on instructing them and getting them to promise that they will follow those instructions. It should first be focused on truly exploring the strength of their belief in Mr. Tsarnaev's guilt, the strength of their belief that he should receive the death penalty, and why they said they would be unable, when they said that, to put that aside even when they said they would be able to.
It seems to me the focus of voir dire should be to probe the jurors' preconceived ideas and presumptions of guilt, not to simply elicit from them or instruct them that they must put those aside. And I was disturbed when Mr. Weinreb said that. He went on to say, "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. The best way to begin the process to do that is by approaching the task of questioning them in that way in a way that is consistent with that goal."
The goal of voir dire is not to extract a promise or to order them to put aside their presumptions. The goal of voir dire is to determine the basis, the extent, and the certainty of that presumption.
THE COURT: Well, I'll only say that I think a juror should understand, if it's necessary to explain it -- and it isn't in every case, but it may be in some circumstances we conduct the dialogue. But to the extent that it's necessary for the juror to understand what we mean when we say the presumption of innocence, I think it's appropriate.
So I think we're ready for the first juror.