5.Individual Voir Dire — Presumed Guilt and Death-Penalty Views (Part 2)
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THE COURT: So I'd like you to turn to Page 20 and direct your attention to Question 77. In this we asked whether, based on things you'd seen or heard in the media or otherwise, you'd formed an opinion about whether the defendant was guilty or not and, if so, what penalty he should receive, whether the death penalty or not the death penalty. You indicated you did have an opinion about whether he's guilty or not, but you are unsure about the penalty.
So let's focus on the first part. Obviously, there's been a lot of news accounts of the case. The jurors will have to decide whether the government ultimately has proved the defendant guilty of any of the specified crimes in the Indictment beyond a reasonable doubt. And I don't know -- I think you did not have any prior jury service, is that right?
JUROR: No.
THE COURT: In a criminal prosecution, the defendant who is accused of a crime is presumed to be not guilty or innocent of the crime unless and until the government proves that he's guilty beyond a reasonable doubt by the evidence at trial. That requires any juror who's called to sit to set aside for the purposes of the trial any prior thoughts about any of the issues that would be presented and to consider the evidence along the lines that I've just outlined, that is, focus on the trial evidence and see whether the government has fulfilled its burden or not. The defendant never has any burden to prove he's not guilty. That's the default position. If the government can change that by the evidence, then the jurors may convict; but if the government can't do that, then the jury is obliged to acquit. Do you understand that those are --
JUROR: I understand the distinction, yes.
THE COURT: To the extent you have an opinion now that he's guilty of these offenses, would that interfere or prevent you from fulfilling the job of a juror, as I've described it to you, at trial?
JUROR: No, it wouldn't. I would be able to separate whatever personal preconceived notions that I have based on what I was exposed to in the press or when it all went down. I, obviously, like anybody, was watching it as it happened. And that's how that feeling came out. Now, obviously, listening to how you just described it, and I understood that a person in this country is innocent until proven guilty. That would have to be done.
THE COURT: Why are you confident that you could do that?
JUROR: I just feel I -- I have the intellectual capacity to do that.
THE COURT: Let's turn to the second part of the question. You said you're unsure about the penalty that might be imposed. Can you tell us why you answered that that way?
JUROR: I think in one of the questions I was asked about it, and there were several questions about it, where -- you know, trying to get to your feelings about the death penalty. And I'm philosophically --
THE COURT: Actually, why don't we turn to those because you're right. There are several. And we're going to get to those. Turn to Page 23.
So we asked -- beginning with 88, we asked a series of questions about this. 88 was about general views about the death penalty. And you said, generally, you're not in favor of it, but you understand that in certain extreme circumstances it may be warranted. Is that a --
JUROR: That's an accurate --
THE COURT: Would you change that in any way?
JUROR: No. That's how I feel. I think on one question I answered that it's a complex question that -- how did I word it -- can't be really answered in one question because there's so many moving parts to it, and there's so many circumstances that would be involved in considering that particular penalty.
THE COURT: We asked in Question 89 for you to try to give us an idea of the strength of your view by indicating where on the scale, from strongly opposed to strongly in favor on a scale of 1 to 10. And you picked a 7. That's little bit toward favor.
JUROR: Maybe that would be more of a 6. No, I'm not going to change that. It's -- it's just difficult to say one way or the other. It all depends on the situation, so I -- it's just, like I said before, a tough -- a tough answer to give based on one type of question like that.
THE COURT: If you'd go to the next page, Question 90, we asked, similarly, for you to pick one of the proposed statements that you thought closely -- most closely reflected your view, and you picked (c), which is that you're opposed but could vote to impose it if you believe the facts and the law in a particular case called for it. Is that --
JUROR: That is probably -- that is my stand.
THE COURT: And in 91, you said you've become more open-minded regarding it. When you were younger, it was more black and white. In what way was it black and white when you were younger and how -- what's the direction of open-mindedness?
JUROR: I think, with more life experiences, I've probably just seen more, and I understand --
THE COURT: In which direction have you moved, I guess is what -- my question: more in favor or more opposed?
JUROR: Again, I probably -- my view is just more gray as opposed to being black or white. As I've become more open-minded, I'm more open to the discussion of whether something like this should be imposed.
THE COURT: So what I'm --
JUROR: I'm not answering your question.
THE COURT: No. I just want to be sure I understand it. I think what you're saying is, you used to think it was a simple yes-or-no proposition. Now you think it may depend heavily on the circumstances.
JUROR: Correct, where before I wouldn't be as open to hearing all of the story. I would pretty much hear something and then snap to a quick judgment, as opposed to now, I think I'm at a point in my life where I can pretty much freely assess a situation and then come to a judgment about it. I don't know if that makes sense.
THE COURT: Again, the next page -- I think it's the next page -- 95 and 96, which is on the following page. 95, we asked, if you found the defendant here guilty and you decided the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty in this case? And you said "not sure." Then on the next question, we asked you sort of the reciprocal of that. If you found Mr. Tsarnaev guilty and you decided life imprisonment without the possibility of release was appropriate, could you conscientiously vote and you said "yes." So there's a little more certainty, I guess, in your second answer than in your first. I just wonder if you could tell us about that.
JUROR: Sure. Because my view is -- and I answered that in 91. I'm looking at the answer I gave. My view is that death is the ultimate severity in penalty that you could impose on somebody, and I wouldn't have a hesitation about sentencing someone to -- I consider that below a death penalty. So if the instructions were clear, I would follow the instructions to the letter. I mean, if the instructions were clear, from a personal standpoint, would I have trouble doing it? Yeah. But if it was the instructions that I was to do that, I would. I wouldn't let my personal view get in the way of what the instructions were.
THE COURT: Well, nobody is going to instruct you how to vote. You will have to decide yourself how to vote. And -- as I explained briefly and we'll -- if you're a juror, we'll get into it in more detail. But in the penalty phase, when the focus is on the penalty, because the conviction at that time is presumed -- or it's happened in the real course. But for these purposes, it's presumed that -- if we're talking about penalty, you can presume that we're talking about somebody who's been convicted by the jury of a crime that is punishable by death, an intentional murder, for example.
JUROR: Right.
THE COURT: So you have a person like that. And then you'll hear things that say, This is a worst case than the average case, and it really deserves the death penalty. You'll have other evidence that says, There are circumstances here that argue against the death penalty for this case. Life imprisonment is more -- is the more appropriate punishment. You'll have all of that and give that consideration. But then the jury will have to decide that question. It's not a question of being instructed to do something. You then will have to weigh the aggravating and the mitigating.
The question is: Assess it yourself. If you thought that the aggravating circumstances outweighed any mitigating circumstances, making it the death penalty appropriate in a sense, in a general sense, could you vote for it under those circumstances?
JUROR: Verbally -- and I understand where you're going here because some of my answers are contradictory, and I can understand that might lead to a little confusion. But if in -- in the circumstances where you do have extenuating circumstances and it's warranted based on -- and I'm not a lawyer but based on the evidence and based on how the law is explained -- and I guess the word "instructed," I guess I understand we're never going to be instructed to impose a penalty, but we'll have that as -- the answer is no, I would not have a problem.
THE COURT: Would not have a problem, okay. All right.
Follow-up, Mr. Mellin?
MR. MELLIN: Thank you. Good morning, sir. I'm Steve Mellin. I'm one of the prosecutors on the case. If I could just follow up a little bit on what you've been saying. It's a little hard to quite follow you completely on your explanations and that maybe on my fault.
JUROR: No.
MR. MELLIN: When you were saying that it depends on the circumstances, what are you trying to say there?
JUROR: I would imagine that there are extenuating circumstances where it's beyond what normal -- I guess the word "normal" can't be used here but what would be a life sentence versus the death penalty, I feel that the type of crimes that were committed in a situation where you're trying to decide whether it's one or the other, that's where I guess the difficulty could be for any person to make. Where is that line drawn and where do you say this is where the line is crossed? And it would have to be over the course of the trial that you would hear the evidence, and then, as a jury, you would make that decision. I don't know if I'm being clear.
MR. MELLIN: No, no, you are. You've made reference to a lot of moving parts, and I'm assuming that plays right into the explanation you just gave us, is that right?
JUROR: Yes.
THE COURT: As I understand, then, you're saying that you would consider all the evidence, all of the aggravating evidence, all of the mitigating evidence, and then you would come to a conclusion?
JUROR: Right.
MR. MELLIN: If you believed, after hearing all that evidence, that you believed that the aggravating evidence sufficiently outweighed the mitigating evidence, the reasons why the death penalty should be imposed outweigh the reasons why it should not be imposed, would you be able to personally vote to impose the death penalty?
JUROR: Yes.
MR. MELLIN: Thank you.
THE COURT: Mr. Bruck?
MR. BRUCK: Good morning. My name is David Bruck. I'm one of Dzhokhar Tsarnaev's lawyers, and I've got a few follow-up questions if that's okay.
I notice you live in Hopkinton?
JUROR: I do.
MR. BRUCK: That's a big Marathon town.
JUROR: It is. We're five years -- my wife and I downsized from Shrewsbury, where we lived for 20 years before that in Charlton, as we heard, back in the '80s, for a few years as well.
MR. BRUCK: Well, that's a town, of course, where the Marathon starts, so it's identified with the Marathon. Do you have any --
JUROR: No connection really. I live on the outer boundary area of Hopkinton. I know what your question is. Do I have any emotional connection to the fact that the road race starts in Hopkinton? No, I do not.
MR. BRUCK: Have you ever attended any Marathon?
JUROR: I have not.
MR. BRUCK: Do you know any runners?
JUROR: Sure, uh-huh.
MR. BRUCK: Do you know anyone that was running in the 2013 Marathon?
JUROR: I do.
MR. BRUCK: Have you talked to them about it?
JUROR: It was a representative of Blue Cross that we know, was stopped before she got to the -- to where the area that was bombed. But I'm not close with her if that -- you know, we just talked.
MR. BRUCK: Any other personal interactions with people who were affected by the bombing at the --
JUROR: Not really, no, no.
MR. BRUCK: Now, you were asked some questions about the gray areas and the many moving parts, to use your phrase, which is a very good one. It does describe the way the system is set up.
The judge has given a preliminary instruction. He hasn't provided a lot of detail. But I want to make sure we're on the same wavelength. The mitigating factors and the aggravating factors cannot only concern the crime. They can also concern the person who committed it. Are you with me?
JUROR: I am.
MR. BRUCK: In other words, I guess what I'd like to know is, for example, a defendant could be older and have a very bad prior record, or he could be younger and have no prior record. Those are -- can be an aggravating factor. It could be a mitigating factor in a particular case.
You've been referring to the crime meriting the death penalty, if a crime was bad enough. And I guess my question is: If you decided that a crime was bad enough, could you also consider things about the defendant that might make you decide, even though the crime was bad enough, life imprisonment would be the proper sentence?
JUROR: That's a really good question. And I -- I totally -- part of my life experiences knows that there's people behind this and there's people that we're talking about and there's lives that we're talking about. I definitely would -- that would be in the total -- I would put it all into whatever conclusion I came up with. Could I separate the two, meaning the crime from the person and that they -- mitigating versus aggravating?
MR. BRUCK: I guess that's what I ask.
JUROR: I think that's what we were talking about, is that there would be obviously two sides to the trial. And that's what this would all be about, is hearing impartially and fairly both sides. I think I'm a good person. I think I'm able to do it -- to do that and to make the distinction and to weigh all that.
MR. BRUCK: Okay.
JUROR: It's easier said sitting here before it actually happens and you're in the midst of it. I guess that's the challenge before everybody, is trying to figure out that. I don't know if I answered your question.
MR. BRUCK: Since -- you said you were -- I'm afraid our questionnaire was not very well worded. It said, Do you have an opinion about guilt and about the penalty? And then it said, Yes, no, or unsure. And I suppose somebody who works precisely in their job and thinks precisely might have noticed the "unsure" means you're not sure whether you have an opinion. But a lot of people have just interpreted that to mean they're unsure about what their opinion is or unsure about whether the person should receive the death penalty.
I guess, when you wrote "unsure" to the questions about the death penalty, did you mean you were unsure whether you had an opinion or that you are unsure whether he should receive the death penalty or life imprisonment?
JUROR: The latter. I -- you know, I don't think you could ask anyone walking down the street what they think and they'd give you an opinion. But until you're here -- I guess that's where the "unsure" part came from, is that you would have to hear and be part of the trial and get an educated, fully understandable decision that's based on fact where I think the public at large right now is walking around with a bunch of --
MR. BRUCK: Has your thinking about this case changed at all from when you filled out the questionnaire on the 5th of January until today?
JUROR: I've been thinking about it a lot. It's been really heavy on my mind, distracting to the point where I find myself, you know, where I will be thinking about things not to do with this. I find myself thinking about things like this, not the questionnaire and how I answered the questions.
MR. BRUCK: I understand. But the case?
JUROR: The case, the situation.
MR. BRUCK: Can you tell us if your thinking has changed in any way or led you in some direction that was not apparent to you when you filled out the questionnaire?
JUROR: I guess -- I guess my thinking really is more on the fact of how important of a deal this is. This is really important for everybody, I mean, to the community and to all the people involved and to -- to the country. I mean, it's -- this is big stuff. I didn't -- I don't -- my feelings haven't changed in any way. I'm still probably as -- what's the word -- I don't want to use the word conflicted, but I have some reservations, the same ones I had before, about the whole thing as far as how this is going to go, I mean, whether I get selected as a juror or not. I mean, now, whether I'm excused or not, I'll be totally in, like, engrossed in this, watching it, how it goes. And probably from that standpoint, I reflect a little bit on that that I was kind of not as in tune with it, sort of the time element took -- it was a couple of years, so, you know.
MR. BRUCK: I think that's all. Thank you so much. I appreciate it.
THE COURT: Thank you. That's all we have. I appreciate it.
Next would be 115.
COURT CLERK: Juror No. 115.
COURT CLERK: Juror 115.
COURT CLERK: Sir, over here, please. Have a seat if you would.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: When you were last here and we had you fill out the questionnaire and I referred to it this morning and instructed everybody to avoid any discussion of the case or the process or to avoid any exposure to media stories about the case and so on, have you been able to do that?
JUROR: I tried.
THE COURT: Did you succeed?
JUROR: Well, I didn't watch the news much, but, you know, you still hear from --
THE COURT: Obviously, it's -- the real point is you didn't pay in-depth attention to any of the stories?
JUROR: No, I didn't.
THE COURT: So we have some biographical information. We see you were born in Germany.
JUROR: Yes, I was.
THE COURT: Do you still have relatives there?
JUROR: No.
THE COURT: Family?
JUROR: No. My family was Lithuanian, from the war, from World War II, they moved there. I really don't have any relatives.
THE COURT: No ongoing contacts?
JUROR: No.
THE COURT: Tell us about your work -- well, tell us about the work before the work you do now. You seemed to have had a change of career.
JUROR: Yes. I'm no longer working. I'm retired.
THE COURT: Even now. It said "golf course."
JUROR: Since I felt physically fit, I decided to take a job as -- just working 20 hours a week on a golf course so I could play golf for free.
THE COURT: Fair enough. Tell us about -- you worked for New Boston Fund.
JUROR: Yeah, New Boston Fund. It's a real estate development company that -- and I was basically in the commercial property management division. I did some development, but it was mostly commercial property management.
THE COURT: We asked for the last ten years. Had you been in that field before that?
JUROR: Yes.
THE COURT: Real property?
JUROR: That's basically been my career.
THE COURT: Social media of any kind? Facebook or anything like that?
JUROR: No, no. My kids do but I don't. Am I supposed to follow along?
THE COURT: No, not yet. I will tell you when I want to direct you to something.
We did ask on Pages 17 and 18 -- and you can look at that now, I guess -- some questions about attitudes towards some issues in current affairs or international affairs, like attitudes about the War on Terror, for example, or attitudes towards Islam or Muslims and so on and so forth. Do you remember those series of questions?
JUROR: Yes, I to.
THE COURT: You answered them here. Have you followed the news reports about attacks in Paris and so on, in Europe?
JUROR: Yes.
THE COURT: In the last month or so?
JUROR: I heard about it. I really haven't read anything about it.
THE COURT: My question was going to be: Would any of those incidents or anything alter any of the answers you gave to these questions?
JUROR: No.
THE COURT: Now, let me ask you to turn to Page 20, Question 77. In that question we asked whether, based on things you'd seen or read in the newspaper or other news media or what you might know from other sources, whether you had any -- had formed an opinion about whether the defendant was guilty or not or whether -- and then, with respect to whether -- if he was, what the penalty might be, you indicated that you had formed an opinion about whether he was guilty; and as to the penalty, you were unsure. Can you just explain those answers for us?
JUROR: Well, you know, I think, you know, like the death penalty or life imprisonment, I think you have to know a little bit more about certain circumstances and how I feel about it. I think if -- you know, if there's a really horrendous crime or something that -- you know, the death penalty or some kind of lifetime imprisonment would warrant that. But I'm not hard fact on exactly what it would be. I think you have to look at a lot of the circumstances, you know, the victims, how the victims would react, if he was remorseful, you know, a lot of factors. I don't have, you know, just a clear-cut, black-and-white answer on that.
THE COURT: Before we get further into that -- and we'll talk about that a little bit more -- let me ask you about the opinion that he is guilty. That's based on news reports or things like that?
JUROR: Correct.
THE COURT: If you were a juror on the case, of course, the first stage of the case requires the government to prove that he's guilty of what he's charged with. The jurors would be instructed that the defendant is presumed to be innocent or not guilty of any charge that's made against him unless the government proves otherwise at trial and proves it by proof that is -- leaves the jury convinced beyond a reasonable doubt that he's guilty of the offense.
It's not unusual and it's not surprising that people might, in a publicized case, have some ideas going into the case. The question is whether you, notwithstanding those ideas, would be able to follow what is required of a juror to put the government to its proof, not put the burden of proof on the defendant to prove that he's not guilty but to require the government to offer evidence that supports the charges that are made against him and convinces you beyond a reasonable doubt. That's what we ask jurors to do. Could you give us your assessment of whether any opinion you have now would interfere or prevent you from doing that?
JUROR: Well, you know, I think, judging from what I know and the length of time, it -- they would have to change my mind at this point.
THE COURT: Who would have to change your mind?
JUROR: The defendant.
THE COURT: You would --
JUROR: Because what I've -- through the media that I've seen, you know, television, you know, from all different sources, there's film on, you know, certain parts of the bombing, you know. So I think the defense would have to tell me that -- to show me proof. Right now I have an opinion, and -- you know, just based on all the information that was fed to me over the years.
THE COURT: Okay. Thank you very much.
JUROR: Okay. Thank you.
COURT CLERK: Juror No. 116.
COURT CLERK: Juror 116.
COURT CLERK: Ma'am, have a seat right here if you would, please.
THE COURT: Good morning.
JUROR: Hello.
THE COURT: When you were here last, I asked jurors to avoid any discussion of the case and to avoid as much as humanly possible media reports and so on. Have you been able to do that?
JUROR: Somewhat. I mean, it was my birthday that day, so people said, What did you do for your birthday? I said I was in federal --
THE COURT: I said you could say you were here. You didn't talk in-depth about the case, the substance of the --
JUROR: No, no, no.
THE COURT: Your husband is a, you say, HVAC/fireman.
JUROR: Yeah.
THE COURT: Is it a part time --
JUROR: Yeah. The firemen, they work two 24s. He does stuff on the side.
THE COURT: He is a full-time firefighter?
JUROR: Yes.
THE COURT: He also, because of his schedule, is able to do other --
JUROR: Yeah.
THE COURT: How long has he been a firefighter?
JUROR: Maybe, like, 15 years. I'm not sure. Like, 15.
THE COURT: He is an EMT as well?
JUROR: I think so. They have to be trained, I think.
THE COURT: To some degree?
JUROR: In Boston, I think they do.
THE COURT: Does he work in Boston?
JUROR: Yes.
THE COURT: Boston Fire Department?
JUROR: Yes.
THE COURT: Boston Fire Department was involved in response to the events of the Marathon bombing. Was he?
JUROR: No.
THE COURT: Does he have coworkers, co-firefighters --
JUROR: I would assume, yeah. He probably knew a lot of --
THE COURT: Do you know about it, or are you just guessing because it's a big department and he might?
JUROR: We weren't there that day. He wasn't working if that's what you're asking.
THE COURT: What I was getting at, since then, has he talked with people who did take part and hear from them?
JUROR: I would assume, yeah. I don't know, you know, what his conversations are with his people.
THE COURT: Have you talked with him about any of those conversations?
JUROR: No.
THE COURT: And you're employed as a real estate agent?
JUROR: Yes.
THE COURT: That's sort of make your own hours for that?
JUROR: Yeah, self-employed, come and go as you want, make your schedule when needed.
THE COURT: You won't be impacted if you're required to serve on a long case?
JUROR: Well, I can make my schedule, do stuff at night and on weekends.
THE COURT: I guess real estate agents do a lot on weekends anyway?
JUROR: Yeah, they do.
THE COURT: Do you use social media?
JUROR: No, not really, just a little Facebook. I probably have 20 friends on it, not a lot, just sort of see what other people post and --
THE COURT: Do you use it in your business at all?
JUROR: You're supposed -- not really, no, I don't.
THE COURT: At Pages 17 and 18 -- that's your questionnaire you can just look at it -- we asked a series of questions about current affairs issues, issues about international events and so on such as the War on Terror, attitudes toward Islam or Muslims, so on and so forth. Do you remember answering those questions?
JUROR: Yeah, I remember.
THE COURT: Since you answered them, there have been some events in Europe, including shootings in Paris and so on. Have you read about those things?
JUROR: Not really. I mean, I heard about it. I didn't focus on it.
THE COURT: You don't know too much about it?
JUROR: No. It was two brothers. That's all I know.
THE COURT: Would that change any of your answers here to these questions?
JUROR: No, no.
THE COURT: If you turn to Page 20, Question 77, we asked -- we tried to get an idea --
JUROR: 77?
THE COURT: -- whether you had any opinions about whether the defendant was guilty and, if so, what the punishment might be in Question 77.
JUROR: Yeah.
THE COURT: You answered, to Part (a), that, yes, you had an opinion that he was guilty. You didn't answer the Parts (b), (c) or (d). Could you tell us a little bit about your -- first your answer to Part (a)? What led you to say that?
JUROR: That he's guilty?
THE COURT: Yeah.
JUROR: Guilty means that he was there. He was present. That's what that means to me. Yeah, he was there. He was on the streets. He was in a boat.
THE COURT: Right. So --
JUROR: So if you have guilty --
THE COURT: You seem to be suggesting that there's some limitation on what -- I'm not --
JUROR: No.
THE COURT: Some reservation?
JUROR: No, no. I mean, guilty opposed to not guilty? I mean, he was there, so --
THE COURT: So he's charged with a number of crimes in this case. Anybody charged with a crime is presumed to be not guilty until the government, at trial, proves by the evidence that he is guilty of that crime and proves it beyond a reasonable doubt.
JUROR: Right.
THE COURT: The burden is not on the defendant to prove he's not guilty of what he's accused with. He's presumed to be innocent, and the government has the burden of proving him guilty.
The question is: If you were a juror in the case, would you be able to consider and fulfill your obligation -- your role as a juror faithfully to those principles? In other words, would you require that the government prove by the evidence that he was guilty of any of the crimes he's charged with, or would you tend to shift the burden to him to prove that he was not guilty?
JUROR: No. I mean, what I know so much of the case, he was there, and they found him in the boat. So that presumes he was there. He was guilty. If he's not guilty, he wasn't there. Does that answer your question or --
THE COURT: I guess I'm trying to guess -- gauge whether you are committed to that view and would not change no matter what happened at trial. Let me ask it that way.
JUROR: Well, you even said back on January 5th that the choices are life in prison or the death penalty so not guilty is not a choice.
THE COURT: Oh, no. The first -- the first step is that the defendant must be convicted at trial.
JUROR: Okay.
THE COURT: If he is convicted then -- you're right. After that, there is a question of what the penalty should be, and the same jury does it. It's not just a question -- as we sit here today, he's presumed not guilty as far as the law goes.
JUROR: Oh, okay.
THE COURT: The government is required to first prove him guilty before the jury considers what --
JUROR: Okay.
THE COURT: So --
JUROR: I mean, I don't -- are you asking me do I think he's not guilty?
THE COURT: No. I'm asking you if you could consider the evidence --
JUROR: Definitely.
THE COURT: -- at trial and convict him only if that evidence convicted him and not --
JUROR: Right.
THE COURT: -- not your prior opinions?
JUROR: Okay, yeah, once you get all the facts because I don't have all the facts. I just know a few things.
THE COURT: You went to a fund-raiser for the OneFund?
JUROR: Yes.
THE COURT: When was that?
JUROR: Oh, God. I don't remember really.
THE COURT: Shortly after the events?
JUROR: Probably, six or eight months. I don't really recall.
THE COURT: Okay. Any follow-up?
MS. CLARKE: Thank you, your Honor.
MR. WEINREB: No.
THE COURT: Thank you.
JUROR: Should I take this?
THE COURT: Leave it right there.
Why don't we take a break, switch stenographers. We'll take about a ten-minute break.
(Recess taken at 11:02 a.m.)
(After the recess:)
(The Court enters the courtroom at 11:22 a.m.)
THE COURT: I think this is 118?
COURT CLERK: Yup. Juror No. 118.
JAMES MCALEAR: Juror 118.
COURT CLERK: Ma'am, have a seat right here, if you would.
JUROR: Thank you.
COURT CLERK: Make sure you speak into the mic so everyone can hear you, okay?
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: When you were last here I asked prospective jurors to be careful about talking about the process with anybody and to try to avoid any news reports about the case.
Have you been able to do that, by and large?
JUROR: With my family. I said I had to come here.
THE COURT: Sure. That's obviously something you have to tell people. But in terms of the substance of the case, have you had any discussions about the substance of the case?
JUROR: Just that I had to fill out a questionnaire. Substance? Not really, no. I think everybody knows -- or at least I feel like everybody knows what the facts are.
THE COURT: Yeah, okay. Let me -- you lived in Europe for a couple of years?
JUROR: A year and a half.
THE COURT: When and what were the circumstances?
JUROR: 1978 to '79. I was a dental hygienist.
THE COURT: You were working over there?
JUROR: Yeah.
THE COURT: You're now retired from dental hygienist?
JUROR: Yeah. My mom is ill, so I stopped working three years ago to -- I'm also a nurse. I'm her healthcare proxy -- just to take her to appointments and, you know, whatever she needs.
THE COURT: Do you use social media at all, Facebook, Twitter, anything like that?
JUROR: No, I'm not that technically savvy.
THE COURT: We asked a series of questions, if you want to refresh your recollection, at pages 17 and 18 about issues you might call current affairs or international affairs, such as questions about your opinions about possible statements about the war on terror or attitudes towards Islam or Muslims and so on.
Do you remember answering those?
JUROR: Uh-huh.
THE COURT: Have you seen any news reports about terrorist attacks in France in the last month or so?
JUROR: Yes.
THE COURT: Have you followed those stories closely or just kind of generally aware of them?
JUROR: I watch the five o'clock news and listen to 1030 radio. But other than that, I haven't, you know, looked anything up about them.
THE COURT: Would they -- what you know about those events, would that have any effect on the answers you gave here? Would you change any of the answers?
JUROR: I don't think so.
THE COURT: No?
JUROR: No.
THE COURT: On page 20 I'd like you to look at Question 77. We asked questions about whether you had formed an opinion about whether the defendant is guilty and, if so, what his penalty might be. And with respect to Part A, you said you had formed an opinion based on what you had seen.
JUROR: My gut feeling is, yes, that I thought that he was guilty.
THE COURT: Right. You actually had said that earlier in Question 74, that that's a thought that occurred to you when you realized you were summonsed for the case?
JUROR: Uh-huh.
THE COURT: Under our criminal justice system, when the government accuses somebody of a crime, the person is presumed to be not guilty, or innocent, unless the government proves its allegations at trial by the evidence, proves it convincingly so the juror is convinced by that evidence that there's no reasonable doubt that the defendant has committed the crime.
People sometimes have ideas from publicity and so on about the events of the case, but ultimately any juror would be asked to focus on the evidence at trial and to regard that as the basis for judgment and, in particular, to require that the government fulfill its obligation to prove convincingly beyond a reasonable doubt that the -- each of the charges is correct or not, and that the burden is never shifted to the defendant to prove he's not guilty. The law gives him that condition as a presumption, and the burden is always on the government.
If you were a juror in the case, notwithstanding impressions, opinions you might have, would you be able or would you not be able to perform that responsibility to require the government to satisfy its burden of proof and not shift the burden to the defendant?
JUROR: I think I would be able.
THE COURT: And why do you say that? Just give us your self-assessment.
JUROR: I just think I'm an honest person. So if I listened to what they had to say, I think I could -- I mean, I know what I feel now, but, I mean, I think I'm capable of listening to facts and making a judgment. Not that I want to, but...
(Laughter.)
THE COURT: And you could do that without placing the burden on the defendant to prove he was not guilty?
JUROR: Yeah, I think so.
THE COURT: We asked a couple of questions about whether you had participated in various events, you know, after the -- you said you bought a Boston Strong T-shirt for your son.
JUROR: Oh, yeah. At a mall.
THE COURT: When was that?
JUROR: I don't know. It was just in the center of a mall.
THE COURT: Was this shortly after the events occurred or sometime later? When was it, do you remember?
JUROR: I don't really remember. I guess it must have been because it was just in one of those kiosks.
THE COURT: Is that the only --
JUROR: Yes.
THE COURT: -- expression of --
JUROR: Yeah. It wasn't even so much that as it was kind of the cool thing for kids. I don't know that it really -- it was more Boston than --
THE COURT: How old is your son?
JUROR: Twenty-five.
THE COURT: Yeah, okay.
In Question 77 with respect to the questions about the potential penalty, the death penalty or not the death penalty, you answered "unsure."
JUROR: When it comes to that, I have -- I don't want to say a change of heart, but a little bit. I've thought a lot about it. In the past I never really -- I don't want to sound heartless, but I sort of always thought if someone did something horrible, fine, you know, I won't say kill them or whatever. But now having to think about it so much because it's on my mind, I don't like the responsibility, or to think that that would be on my conscience, that I decided to do that. It doesn't sit well with me.
THE COURT: Well, if you turn to page 23, we asked a series of questions directed at your feelings on the death penalty.
JUROR: Sorry about the handwriting.
THE COURT: It starts at Question 88 where we asked generally what your views were, and you wrote that you weren't sure. I'm not sure exactly what -- maybe you can translate.
JUROR: I said I would have to have zero doubt but in general -- yeah, I do agree with this. For me to be in prison for the rest of my life would be much worse. I mean, I look at the death penalty a little bit like going to sleep. That's not really a terrible punishment. So imprisonment would be worse. But the idea that it would be on me, I don't like the idea that it would be on me to have to decide someone else's fate, life or death. That's pretty horrible.
THE COURT: If you look at page 24, Question 90, we asked -- posed a series of statements and asked if you could indicate what might come closest to your view, and you selected D, which is kind of in the middle. It says, "I'm not for or against. I could vote or I could not vote."
Are you telling us that you're sort of thinking -- since you filled this out, thinking about it, it changed your view?
JUROR: Yeah, thinking about it I've changed my view. Mostly, I mean, thou shall not kill. I realize I wouldn't actually be doing it, but I would be voting to say yes.
THE COURT: And are you saying you would be reluctant to do it or are you saying you would be unable to do it?
JUROR: I don't think I could do it.
THE COURT: The second? You would be unable to do it?
JUROR: I think so.
THE COURT: In other words, if it came to --
JUROR: If it came down to me, I would almost feel like I would be bullied into that. Like I don't -- I don't -- I don't know. I just don't want to walk around for the rest of my life thinking that I was responsible for taking someone's life. It doesn't feel right.
THE COURT: So you can't -- could you envision any circumstance in which you could think you would not feel that and would feel okay in voting for a death penalty?
JUROR: I don't think so. I mean, it's...
THE COURT: Do you have anything?
Go ahead. All right.
MR. BRUCK: Good afternoon -- well, it's still morning.
JUROR: Yeah.
MR. BRUCK: I'm David Bruck. I'm one of Jahar Tsarnaev's lawyers, and I want to follow up a little bit on what you just talked with the judge about. You haven't had a lot of instruction about the legal procedures yet from the Court, so I want to be sure we're on the same wavelength.
Talking about the death penalty now, of course a jury only gets to that once the person's been found guilty beyond a reasonable doubt. So you know that?
JUROR: Right.
MR. BRUCK: Okay. So it's -- and then once the -- you get to the sentencing phase, the jury will hear evidence of aggravation, things the government says make the crime worse or especially horrible, make the defendant especially horrible deserving the death penalty, and the defense gets to show the other side from that, things about the defendant that might show that life imprisonment would be an adequate punishment, right?
JUROR: Uh-huh.
MR. BRUCK: And the jury gets to hear all that. And then assuming the government proves it's the kind of case that the death penalty can be imposed for, and it's entirely up to the jury to decide what to do, the death penalty or life imprisonment, the law never requires -- I think Judge O'Toole told you earlier that there's never a situation where you've made certain findings so the law says, Okay. Now you have to sign for the death penalty whether you agree with it or not.
JUROR: But I understood it has to be unanimous.
MR. BRUCK: It does.
JUROR: So that's what bothers me. It's not that -- I don't want to sound callous. It's not that the person -- that they would choose the death penalty; it would be that I would have to --
MR. BRUCK: Right.
JUROR: -- agree with that.
MR. BRUCK: Now, of course you appreciate that serving on a jury is a responsibility that not that many people welcome; it's a duty like paying taxes or --
JUROR: Right.
MR. BRUCK: And you agree that that's an obligation?
MR. WEINREB: Objection, your Honor. This is leading and argumentative.
THE COURT: Yeah.
MR. BRUCK: Well, what I'm getting to, understanding that you would never want to, I think what the questions are really designed to get at is whether, if you found that it was the right thing to do based on your values and your view of the evidence, not would you want to, but could you vote for the death penalty to express what you concluded yourself?
JUROR: I just don't -- deep down I think I would have a hard time living with the fact that I would be responsible for someone's death. It's not -- it's not -- the death penalty itself, that someone -- I mean, this sounds awful, but if someone else did it, it doesn't bother me, but the fact that it would be me, so for the rest of my life having that -- be responsible, it feels bad.
MR. BRUCK: I don't want to belabor this, but I want to be sure -- it would feel bad to a lot of people, don't you agree?
JUROR: Right. Well...
MR. BRUCK: The question is not whether you'd feel good about it or feel bad but could you do it.
JUROR: It's not bad, per se. It feels wrong, like.
MR. BRUCK: Could there never be a case -- I'm not talking about this one. Could there never be a case where even though it felt wrong, you would be able to do it?
JUROR: The only thing I could think of would be if someone killed one of my children. Then I'm not so sure. But that's about all I could think of.
THE COURT: I think we have her views.
MR. BRUCK: Thank you.
THE COURT: Thank you, ma'am.
JAMES MCALEAR: Right this way, ma'am.
(The juror is excused.)
COURT CLERK: Juror No. 119.
JAMES MCALEAR: Juror 119.
COURT CLERK: Ma'am, over here, please. Have a seat.
JUROR: Good morning.
COURT CLERK: Also, make sure you speak into the mic so everyone can hear you.
JUROR: Okay, great. Thank you.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Have you been able to abide by my instructions given previously to avoid discussing the merits of the case?
JUROR: Yes, I have.
THE COURT: And try to avoid any media accounts?
JUROR: I have, yes.
THE COURT: Okay. That's the questionnaire you filled out last time.
JUROR: Yes.
THE COURT: It's there. We're going to ask you some follow-ups about some of the answers you gave.
Generally, you're a dental assistant?
JUROR: Yes.
THE COURT: And you answered a question it wouldn't be a particular hardship for you to serve on the case? You could make whatever arrangements with your employer to work around the time?
JUROR: Yes.
THE COURT: Do you use social media?
JUROR: I do. I have been on Facebook daily, but I do it more -- it's more or less socializing with friends from high school. It's more of a bragging thing with our children, you know, if they're doing something well, you're going to put it on Facebook.
THE COURT: Anything besides Facebook? Twitter, Instagram or anything like that?
JUROR: No. No.
THE COURT: Have you posted anything about your service or --
JUROR: No, not at this time. No.
THE COURT: We asked -- at pages 17 and 18, we asked some questions about current affairs, international events, things like that, such as the war on terror. We also asked about possible attitudes towards Islam or Muslims and so on.
Do you remember answering those?
JUROR: Not really much to answer. I think a lot of my answers were no.
THE COURT: Right. Right. I just want to sort of update. I mean, since you filled out the questionnaire, there's been some attacks in Paris, shootings. Have you read about those?
JUROR: I actually didn't follow it. I really stay away from --
THE COURT: Okay. Just that you know it occurred --
JUROR: Absolutely.
THE COURT: Possibly the same --
JUROR: I have not been watching the news. I really avoid it a lot.
THE COURT: Fair enough.
In Question 74 we asked what was your reaction when you realized you had been summoned for possible service in this case. You said, "Excited and nervous." What were you --
JUROR: Kind of how I feel right now. Excited, nervous, anxious. Overwhelmed. A lot of emotions.
THE COURT: I guess I'm interested in what the "excited" part is. I mean, is this something you're interested in doing?
JUROR: That's a tough question. I don't know. I'm not used to being in front of a panel like this, so being spoken to like this is a little bit intimidating.
THE COURT: Relax.
JUROR: Yeah.
THE COURT: We're fairly normal.
JUROR: Okay. Good. Great.
MR. BRUCK: Speak for yourself.
(Laughter.)
THE COURT: So, no, seriously, is this something that you would actually affirmatively want to do or is it something that if you're called, it would be an exciting thing? I'm trying to get what the phrase meant.
JUROR: When I first filled this out I was very excited. I kind of knew this was going to happen, it was coming when I got the jury paperwork. And, yeah, I'm still ready. I'm ready to do this, yeah.
THE COURT: I think I -- you haven't had previous jury service. Is that right?
JUROR: Locally. Nothing federal like this. I've done district, but I've never actually been called, no.
THE COURT: You've never actually been called --
JUROR: I've been called in and --
THE COURT: -- to the courthouse to be available in other cases?
JUROR: I have been called to the courthouse, but then usually they settle out of --
THE COURT: Right. Right. But how many occasions have you actually been called to a courthouse?
JUROR: You mean as in jury duty, as in --
THE COURT: As a pool. As part of the jury pool.
JUROR: Five times in my whole life I've been. But I've never actually been in jury, but I have been called a lot. It seems my name comes up a lot.
THE COURT: Were they all state summonses, do you know?
JUROR: Yes.
THE COURT: If you look at page 20, Question 77 we ask about whether you've had -- formed some opinions about the case based on what you've seen in the media or otherwise learned.
JUROR: Right.
THE COURT: And first we asked if you had any opinion about whether the defendant was guilty or not, and you checked yes for that question. It's not surprising that people would have some thoughts about this case based on what they've seen and the ample coverage that has been given of the events and so on, and maybe other things that they may more personally or directly know.
In our criminal justice system every defendant who is accused of a crime is presumed to be not guilty until and unless the government proves that he is guilty beyond a reasonable doubt by the evidence at the trial. So the burden is entirely on the government to establish guilt, in the legal sense, by proving it at trial, and a defendant is never required to prove that he is not guilty of what he's accused of.
If you are a juror in this case, would you be able to consider the evidence at trial and find guilty or not guilty based on that evidence and not based on what you might know or think you know from outside the case?
JUROR: I do.
THE COURT: Would you be able to do that?
JUROR: Yes.
THE COURT: And in particular, would you be able to make a judgment without shifting to the defendant the burden of proving that he is not guilty of what he's charged with?
JUROR: I do.
THE COURT: And can you just give us a little sense of why you are confident of that?
JUROR: I feel that you can't turn a blind eye -- when it actually happened -- I mean, the media was just throwing in your face wherever you went. So here we are, you have the prosecutor's team, the defense team, and they both have to bring in what they know, and you have to kind of see if the defense can actually bring forth something different than what the media has brought to us.
THE COURT: Well, see, that's what I was just getting at. You just said the defense can bring that forth. And you may be confused, so let me make it clear we did talk about two different phases of the trial. So the first phase is to determine whether the defendant is guilty of any of the crimes he's charged with. He's charged with a number, and the indictment sets them out.
As to the -- proving the defendant guilty of any of the crimes he's charged with, the burden is entirely with the government, and the defendant has no obligation to explain things or to show that he's not guilty of the offenses.
If he is convicted on that standard by the jury, in the second phase there will be considerations about what should be an appropriate penalty, and both sides will likely present evidence then. And the defendant may seek to show you that there are circumstances we call "mitigating circumstances" that would argue against the harsh penalty of a death sentence and in favor of life imprisonment. So in that sense the defendant has some -- undertakes some effort to convince the jurors to think along the way the defense would like you to think about the mitigation issues. That's different from in the first sense when the defendant has no obligation to show that he's not guilty.
Do you understand the distinction?
JUROR: It's a little confusing.
THE COURT: Yeah, it is.
JUROR: It is.
THE COURT: It's a little technical.
JUROR: There are two parts to it.
THE COURT: But I want to focus on the first part, not explaining away what kind of sentence should be imposed.
He's accused in the indictment of a number of specific crimes, and the government has to prove him guilty of any of those by showing through the evidence to a degree that is so convincing that jurors have no reasonable doubt that it's true that he is guilty. That's the government's burden. And during that phase of proving somebody guilty or not, the defendant does not have a burden to prove that he's not guilty. That doesn't mean there won't be active back-and-forth about the evidence and what jurors should think about, but in the end it's not which side has convinced me; the question is always: Has the government convinced me that he's guilty of this particular crime that he's charged with?
Are you following me?
JUROR: I'm trying.
THE COURT: And the question is whether in that phase, the first phase to determine whether he's guilty or not, whether you would be able to judge that evidence along those lines that I've just outlined, or whether because of some information you have from other sources prior to the trial you would be unable to discharge that responsibility.
JUROR: I think I could go through that and listen to what they have to say and prove their point, prove the first phase of it.
THE COURT: And I guess give us a sense of your confidence, your level of confidence in that.
JUROR: Give my sense of level?
THE COURT: Yeah. I mean, is it just that you think you might be able to do it, or are you confident that you would be able to do it?
JUROR: I think I'm confident I could do that, yes.
THE COURT: Now, let's talk about the second phase, which is the penalty phase. And obviously one of the key questions is -- concerns the possibility of a death penalty. We ask in some questions beginning on page 23 about some of your attitudes towards the death penalty.
In Question 88 we ask in general whether you have some views, and you said N/A, which I guess means not applicable?
JUROR: Not available. Yeah, I just didn't have an opinion at that point.
THE COURT: Okay. In the next question, 89, we ask you to kind of give us, on a scale of strongly opposed to strongly favor, where you might be, and you signaled -- you circled 8, which is a relatively -- relatively on the strongly favor side. It's not the most strong but it tends there.
And this is, again, as a general matter, right? Is that a fair --
JUROR: Yeah. Yes.
THE COURT: -- assessment of how you --
JUROR: Yes.
THE COURT: The next question, instead of numbers, we asked you on a series of statements to indicate which statement came closest to you, and you said -- you circled E, "I am in favor of the death penalty but could vote for a sentence of life imprisonment without possibility of release if I believed that sentence was called for by the facts and the law in the case."
JUROR: Correct.
THE COURT: Is that still your --
JUROR: Yes. Basically, when you asked me that question earlier, I was confused, stating that if the defense comes there and gives more facts.
THE COURT: So, again, I described the process: You'd hear from both sides, the government would have the opportunity to present aggravating circumstances that it said it would contend make this a crime that -- first of all, it would assume somebody that had been convicted, obviously. You don't get to the penalty until you've been convicted of an intentional murder.
So the government would try to produce evidence in support of what it would call "aggravating circumstances or factors" that would call perhaps for a harsher penalty for this offense than for others of the same general nature. The defense would present evidence of mitigating factors: We would say for this case, for this offense or for this defendant, there are things that you should consider that point away from the death penalty. And then the jurors would be asked to weigh all that. That's what I was saying earlier this morning.
JUROR: Uh-huh.
THE COURT: So the question is: Are you predisposed to either side of that, either the death penalty or life in prison without release, or are you in a condition where you could evaluate all that and be open to and prepared to vote for either one depending on how you assessed the circumstances of the case?
JUROR: I would say the second half of what you just said is what I would go with.
THE COURT: Let me just come at it again a little bit. If you look at Question 95, we asked if you found the defendant guilty and decided the death penalty was an appropriate punishment, could you conscientiously vote for it, and you said yes.
JUROR: Yes.
THE COURT: If you'd go over to the next question on the top of the next page, we ask sort of the other side of that, if you found him guilty and decided life imprisonment without the possibility of release was appropriate, could you vote for that, and you said you're not sure?
JUROR: Very interesting.
(Laughter.)
THE COURT: So I guess my question is: Is there a reason why you were a little bit more --
JUROR: I think I'm leaning more towards --
THE COURT: You were certain on the first question and less certain on the second question. Is there a --
JUROR: As of right now because I don't know the facts. I mean, I'm going by what media has told us. So, yes, according to media, yes. But once you hear the full story and all the facts, there could be a change. It just totally depends on the whole story.
THE COURT: Are you committed in either direction?
JUROR: Am I committed? I'm leaning more towards the death, but I -- again, I feel like this happened on U.S. grounds and it's unacceptable, and if it's what happened and it comes forth that he's guilty, then yes, but...
THE COURT: "Yes" what?
JUROR: Then yes the death penalty; however, again, facts.
THE COURT: Okay.
MR. WEINREB: I'd just like to ask a few questions.
JUROR: Sure.
MR. WEINREB: Good morning. My name's Bill Weinreb. I'm one of the prosecutors in the case.
JUROR: Good morning.
MR. WEINREB: So when the judge referred to the government having to prove the case -- that's the people you see here -- it will be our obligation to put in evidence at the trial to prove that the defendant's guilty, so you said that based on what you've heard in the media or, you know, press reports, you formed an opinion that the defendant is guilty, that he did it. Is that correct?
JUROR: Correct.
MR. WEINREB: Okay. So -- but you haven't heard any evidence yet because the trial hasn't begun yet.
JUROR: Correct.
MR. WEINREB: So the question is: I understand you to say, and tell me -- you can tell me if I'm wrong -- that if you have an opinion about something outside based on what you've heard in the media, unless you hear something else, you have no reason to move off that opinion.
JUROR: Correct.
MR. WEINREB: Is that correct?
JUROR: Yes.
MR. WEINREB: Okay. But when the trial begins, what you've heard in the media and all of that, that's not the evidence; the evidence is what will be offered at the trial. And really the question is: Can you put aside what you've heard and decide the case based solely on the evidence, not on anything you've heard in the press?
JUROR: Yes. I just feel like the media -- it just seems like so long ago and things have kind of calmed down a little bit. It was just so crazy when it first happened and it was just thrown at you every which way, and it's kind of quieted down a little bit.
MR. WEINREB: Okay. And going even beyond that, coming into the trial, as the judge told you, the defendant is presumed innocent.
JUROR: Yes. Innocent until proven guilty, correct.
MR. WEINREB: Okay. And that's the state of mind that you would need to be in, that he's innocent unless and until the government can prove him guilty.
JUROR: Yes.
MR. WEINREB: Do you think you would be able to achieve that state of mind?
JUROR: Yes.
MR. WEINREB: Are you confident of that?
JUROR: I think so.
MR. WEINREB: All right. So now let me move on for a bit to the question of the death penalty. If the defendant is proved guilty beyond a reasonable doubt of one of the crimes that carries the death penalty, then the trial enters another phase, as the judge explained, the sentencing phase. And at that phase the jury decides what the penalty will be, a death sentence or a sentence of life without parole, okay?
Now, again, putting aside anything you've heard in the media about this case -- right now you haven't heard any evidence in the penalty phase. There hasn't been a penalty phase. Maybe there never will be one. But assuming there is one, again, can you go into that phase of the trial, put aside anything you've read or seen or heard, and make that decision, the penalty decision, based just on the evidence in the case?
JUROR: Yes.
MR. WEINREB: And during the penalty phase would you be open -- genuinely open -- to considering both penalties, a death sentence or a sentence of life without parole, depending on what the evidence showed you about which sentence was more appropriate in this case?
JUROR: Can you repeat that?
MR. WEINREB: Sure. So you'll hear evidence of what are called "aggravating factors," factors that the government believes make this a case where the death penalty is appropriate, but you'll also hear evidence of mitigating factors, factors that the defense believes make the death penalty -- make life without parole the appropriate sentence.
And those factors -- mitigating factors, like aggravating factors, they're things that relate to the offense itself, how bad or heinous the crime is, and they're things that relate to the defendant, about him as a person, about his character.
Could you go into the sentencing phase with an open mind, open to hearing evidence of aggravating factors and mitigating factors, and genuinely weigh them and consider which is a more appropriate sentence, a death sentence or a sentence of life without the possibility of release?
JUROR: I could, yes.
MR. WEINREB: Are you confident?
JUROR: Yes.
MR. WEINREB: Thank you.
JUROR: You're welcome.
MS. CONRAD: Good morning. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
I think you said something about the media was thrown in your face. What sticks out in your mind about what you heard, read about this case or about the events?
JUROR: The day it occurred there was no school, obviously. It's a holiday. And my son and I went to lunch that afternoon. And I didn't really pay attention to what happened at that time.
I think it was later on during the week when some other incidents had happened where I followed a little bit more, not so much on the -- Boston itself but out of Boston, the Watertown. That's when everything just started coming together.
So I think I focused more on that, the whole Watertown incident. But other than that...
MS. CONRAD: And how old is your son?
JUROR: He will be 15 in March. He's a freshman in high school.
MS. CONRAD: But about -- you said that you focused more on the Watertown?
JUROR: I think just because it was -- at the time it happened, nobody really knew what was going on, and then later on as the week went on, just so much -- just the constant -- just constant media.
MS. CONRAD: And were there any particular facts that stand out in your mind as you sit here today?
JUROR: Not necessarily, no.
MS. CONRAD: Well, you said that based on what you've read and heard you've formed an opinion that Mr. Tsarnaev is guilty. So what were the facts that you read or heard that caused you to form that opinion?
JUROR: The capture of him. The day of the capture.
MS. CONRAD: Anything in particular about that --
JUROR: Sure.
MS. CONRAD: -- that stands out?
JUROR: Hiding in the boat. I think that's the biggest thing that sticks in my mind, is the whole town being closed down and looking for the individual.
MS. CONRAD: Were you personally affected by that?
JUROR: No. No.
MS. CONRAD: And you said originally when Judge O'Toole was asking you some questions that, you know, you would have to wait and see if there was -- there was evidence that changed your mind about his guilt.
What kind of evidence would you look for?
MR. WEINREB: Objection.
THE COURT: Yeah, I think that's too speculative, so...
MS. CONRAD: If you didn't hear anything different from what you already know, would you then find him guilty?
MR. WEINREB: Well, I'll object just to the way that's phrased. If the evidence at trial is -- coincides with what's been in the press, is that the question?
THE COURT: Well, even that formulation I think is problematic.
MS. CONRAD: Can I try it a different way?
THE COURT: Yes.
MS. CONRAD: If you didn't hear anything different from what you've heard in the press, would you find him guilty?
MR. WEINREB: No, I think I'll object because it's too --
THE COURT: The problem I have with asking what the finding would be, what we're trying to determine is the open-mindedness of the juror to follow the instructions and so on and so forth. That's the -- to say what -- you suggest a scenario of particular facts and ask now for what the jurors' vote on the verdict would be I think is inappropriate.
MS. CONRAD: Well, what would you -- what would you -- if the defense did not offer any evidence, would you rely on what you've already -- on the opinion you've already formed?
JUROR: I would have to also hear the other side, the prosecuting team versus the defense team. I'm not going to go by just media.
MS. CONRAD: Well, I guess the question I have, then, is: If the government produced evidence, but the evidence at trial by itself was not enough to convince you beyond a reasonable doubt, would you find the defendant not guilty or would you go back to what you had heard before in your previous belief?
JUROR: If we were only just going by what I heard before, then guilty like I had put in my paperwork here.
MS. CONRAD: So you would not be willing to find the defendant not guilty even if the government's evidence did not prove his guilt beyond a reasonable doubt?
JUROR: I misunderstood you. Can you please explain that?
MS. CONRAD: That was confusing. Let me try again.
JUROR: Yeah, you're throwing all this at me. I just...
MS. CONRAD: If the government's evidence, just what you heard at trial, was not enough to prove his guilt beyond a reasonable doubt --
JUROR: Good question. Tricky.
MS. CONRAD: -- but you have --
JUROR: Correct.
MS. CONRAD: -- in your mind a previously formed opinion, would you find him guilty or not guilty?
JUROR: I would have to go by what I know from the media and whatever they have come forth with.
MS. CONRAD: So that would still be there?
JUROR: I think so, yes.
MS. CONRAD: And you said that when you received the summons, you were excited and nervous, right?
JUROR: I didn't know it was for this case, though. I had no idea.
MS. CONRAD: Right. So my next question is: When you realized it was for this case -- and I don't know when that was or how that was.
JUROR: The day of.
MS. CONRAD: When you came in to fill out the questionnaire?
JUROR: Yes.
MS. CONRAD: So at that point how did you feel, realizing that it would be for this case?
JUROR: A little nerve-racking sitting here because I knew there would be some procedures to get through to this point, and it's -- I'm not really a public speaker. And being in front of all these people, it's a little intimidating.
MS. CONRAD: You're doing fine.
JUROR: Thank you.
MS. CONRAD: And what about the excited part?
JUROR: Just the excitement of being in front of a court, because I've never been to something so big. I mean, I'm like the country bumpkin up at home, so...
MS. CONRAD: Did you feel more or less excited when you realized what case it was?
JUROR: About the same.
MS. CONRAD: And you said you're ready to do this. What do you mean by that?
JUROR: Financially, hardship-wise.
MS. CONRAD: Okay. Is there a financial hardship?
JUROR: No. No. No.
MS. CONRAD: I see.
JUROR: Sorry.
MS. CONRAD: On Question 93, if you could just turn to that, I think it's page 25, you wrote in a response there that "I just feel with the particular case if he gets life imprisonment he will still be treated better than other inmates, solitary confinement, et cetera."
JUROR: Yeah.
MS. CONRAD: Explain what you meant by that.
JUROR: I just feel that if he gets life in prison he's going to get special -- special -- I don't know what the word that I'm looking for -- privileges, maybe?
MS. CONRAD: And why do you think that?
JUROR: I don't know.
MS. CONRAD: Has someone told you that?
JUROR: No, just something...
MS. CONRAD: What kind of special privilege?
JUROR: I don't know. Would he be with the general public?
MS. CONRAD: Do you think that would be better or worse?
MR. WEINREB: Objection, your Honor.
MS. CONRAD: Also, it's based on the question.
THE COURT: No, you can have that.
JUROR: I think he should be with the general public just like everybody else. If we're treating this and doing a case and -- with the jury, just like any other particular person.
MS. CONRAD: Why would you think being with the general public would be worse than being separated?
JUROR: I don't know. Good question.
MS. CONRAD: Do you think he would be more at risk with the general population?
JUROR: More at risk?
MS. CONRAD: At risk.
JUROR: Possibly.
MS. CONRAD: And you think that would be something you would want to see happen?
JUROR: Not necessarily.
MS. CONRAD: Do you think solitary confinement is a privilege?
MR. WEINREB: Objection. This is going on too long.
THE COURT: Yeah, I think --
MS. CONRAD: Okay. I'll move on, your Honor.
When you put down on Question 96 that you were not sure whether you could vote for life imprisonment, could you tell us what you were thinking?
JUROR: To be honest with you, at the time it was -- the whole packet was overwhelming. It depends on the case. I don't know at the time I checked that off. I guess it depends on the whole -- situation as a whole.
MS. CONRAD: But you told us that sitting here today you're leaning more towards the death penalty?
JUROR: Slightly, yes.
MS. CONRAD: And you said when I think the judge was asking you questions and explaining about the penalty phase, you said you would look to what they have to say and whether they proved their point. Are you talking about the defense there?
JUROR: Both sides. And I -- actually, at the time I wasn't aware that it was two phases. So if that's the second phase -- I was a little confused when he was explaining that to me earlier, the judge.
MS. CONRAD: Okay. So understanding that the first phase would be the guilt or innocence phase, whether or not the government had proved the defendant guilty beyond a reasonable doubt, if you and the rest of the jury had concluded that he was guilty beyond a reasonable doubt and then you moved to the penalty phase, would you automatically conclude that he deserves the death penalty if he were found guilty of this crime beyond a reasonable doubt?
JUROR: So you're saying second phase he was found guilty?
MS. CONRAD: Right.
JUROR: If he was found guilty through the whole process?
MS. CONRAD: Yes.
JUROR: Yes.
MS. CONRAD: You would automatically impose the death penalty?
JUROR: No. Impose? I'm sorry. No.
MS. CONRAD: I'm sorry. Vote for the death penalty?
JUROR: Yes.
THE COURT: What's the distinction between "impose" and "vote for"?
JUROR: It sounds --
MS. CONRAD: It was my poor phrasing.
THE COURT: Well, no, it sounded like the witness understood it as creating different options.
JUROR: I thought she meant impose as in I were against it versus if I would vote for it. I kind of got a little confused with her questioning.
THE COURT: You're thinking of opposed -- "impose" was the word.
JUROR: Oppose?
THE COURT: "Impose" and "vote for" might be the same.
JUROR: Okay. I didn't hear her correctly. I'm sorry, the wording.
THE COURT: Why don't you ask the question again making that clear.
MS. CONRAD: I'll try.
JUROR: I'm sorry.
MS. CONRAD: No problem. My fault for not being clearer.
If you were a member of a jury that found Mr. Tsarnaev guilty beyond a reasonable doubt of the crimes he's charged with, would you, once you got to the penalty phase, automatically vote for the death penalty?
JUROR: Yes.
THE COURT: Anything else?
MR. WEINREB: Yeah, can I ask with two quick follow-ups?
THE COURT: All right.
MR. WEINREB: Let me just follow up on that. So the question is if the defendant is found guilty beyond a reasonable doubt of the crimes charged in the indictment and the case moves to a penalty phase, would you automatically vote for the death penalty or could you wait till the end of the penalty phase, first listening to all the aggravating factors and all the mitigating factors, and then make a decision whether to impose the death penalty?
JUROR: Yes, I agree with that. I could wait until the end.
MR. WEINREB: And secondly, on the case -- the issue of the presumption of innocence, if the government puts on its case but fails to prove the defendant guilty beyond a reasonable doubt, so the evidence doesn't convince you beyond a reasonable doubt that he's guilty, would you find him guilty anyway?
JUROR: Not necessarily, no.
MR. WEINREB: Well, you say "not necessarily." Is there any chance you would --
JUROR: So you're speaking just on the government's side. If you came --
MR. WEINREB: Right. So there is no defense side. The defense has no obligation to put on any evidence at all. Do you understand that?
JUROR: Yeah.
MR. WEINREB: Okay. You're not a lawyer, so you're not expected to know these things. That's why we're saying them ahead of time, so you understand sort of what the ground rules are. So the ground rules are you walk into the courtroom, you don't know anything about the case. Anything you've heard in the media and so on shouldn't be influencing you.
JUROR: Right.
MR. WEINREB: The government goes first and it has to produce evidence at the trial to prove the defendant's guilt beyond a reasonable doubt. The defense has no obligation whatsoever to offer any evidence to try to prove him innocent because he's presumed innocent. He walks in there innocent unless and until he's proved guilty.
Are you with me on that?
JUROR: I'm trying, yes. Yes.
MR. WEINREB: Okay. The question is: If the government went through its whole case, put on evidence in court, but it didn't convince you beyond a reasonable doubt that the defendant was guilty, would you find him guilty anyway?
JUROR: Good question.
MR. WEINREB: I just want your honest answer. There's no right or wrong answer.
JUROR: If you weren't able to prove it? Again, just going by what was told through the media and what I have known from the past, I look at guilty again. But, again, the media's vicious. They tell us too much.
THE COURT: Okay. All right. Thank you.
JUROR: Thank you.
THE COURT: Just leave the questionnaire there.
JUROR: Sure.
(The juror is excused.)
COURT CLERK: Juror No. 126.
JAMES MCALEAR: Juror No. 126.
COURT CLERK: Sir, come over here, please. Take a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since the time you filled out the questionnaire, have you been able to avoid talking about the substance of the case, the facts or anything about the case with anybody?
JUROR: Yes.
THE COURT: And have you been able to avoid media accounts concerning the case?
JUROR: Yes.
THE COURT: Okay. So that is the questionnaire you filled out. We're going to ask you some follow-up questions about it.
Let me cut the audio for a minute, and I want to look at page 5.
MR. DOREAU: Video is cut.
THE COURT: Thank you.
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
MS. CONRAD: And how do you get to work?
JUROR: I get a ride.
MS. CONRAD: I guess this goes into Question 10, so I don't have anything further on that question.
THE COURT: We'll continue back on the audio.
MR. DOREAU: Audio is back online.