8.Juror 60 Reconsideration Motion — Decision Deferred
23 linesMR. BRUCK: Before we get to tomorrow, maybe this is the time to take up our motion to reconsider No. 60, just whenever you would prefer to do it.
THE COURT: I thought we -- well, go ahead.
MR. BRUCK: I have a copy of her --
THE COURT: Yeah, I've looked at it.
MR. BRUCK: -- of her voir dire.
THE COURT: I don't think I brought it in with me.
MR. BRUCK: I've marked up a little of it. This was a juror who said on her questionnaire she thought -- held an opinion that the defendant was guilty, that he should be sentenced to death, and then she wrote in "unsure" next to whether she could change her opinion. And on inquiry, it turned out that what she was unsure about was on the penalty end. So the inference was left that she meant to say on the questionnaire that she could not change her opinion as to -- she would be unable to set aside her opinion as to guilt. That's where she was coming in. There is no juror as yet qualified who has said that they were unable -- in their questionnaire, unable to put aside their opinion of either guilt or punishment except for in this somewhat ambiguous way but not really, this No. 60.
So our point about her is I think she is a little bit of an artifact of the first two days when everyone was feeling their way. And I have my doubts -- I really do doubt that she would have been qualified today. And I'd like to just go quickly through why we think that. I mentioned that she is the juror who most clearly of everybody that has made the cut so far indicated that she could not set aside her opinions, at least on guilt. And she went back and forth on whether -- on the presumption of innocence. The Court questioned her in a fairly brief question on Page 6-34 and 35. And her answer finally was, "I think so," which, granted, it's an affirmative answer, but it's not exactly a ringing affirmation of her ability to set her opinion aside.
MR. WEINREB: I'm sorry. Mr. Bruck, can I interrupt you for a second? Are we talking about Juror 60 or 90?
MR. BRUCK: 60.
MS. CLARKE: Correct, 60.
MR. WEINREB: And you're saying that Juror 60 said she was unable to set aside her opinion in the questionnaire?
MR. BRUCK: In the questionnaire.
MR. WEINREB: On Number --
MR. BRUCK: 77. She has -- I'm sorry. She wrote in "unsure." That's how I should have -- and then that was in turn clarified.
MR. WEINREB: So she changed "able" and then wrote the word "unsure."
MR. BRUCK: That's right. I should have made that clear.
MR. WEINREB: I just want to make sure we have the right juror.
MR. BRUCK: Yeah, you do. And then on inquiry, when Miss Clarke inquired about that, she said she was unsure about the penalty which left the inference that she was not unsure about guilt, which makes sense. I mean, most jurors, I think, are reporting greater bias as to guilt than as to punishment.
Then on Miss Clarke's examination, she acknowledged, "I don't think I can presume him to be innocent, that is to say, today, sitting here in light of..." she said, "I think that's more difficult because of the media coverage." She was, I suppose you could say, rehabilitated by a single question of Mr. Weinreb's, which is the one that we think really does not adequately state the presumption -- the presumption of innocence and the burden of proof. But, you know, it's a shaky record to begin with and a thin record.
And this is also the juror who, on the day that she came to court, was told by her husband, a retired firefighter, that the defendant should have been shot in the head when he was in the boat and presumably knowing that his wife was a juror on the way to court. When that happens in the middle of a trial, it is an extremely serious problem. And the trial began on January 5th. Granted, she hadn't been instructed, and she didn't make the statement. But that is a -- that's tampering.
The -- Miss Clarke reminds me, He should have been shot to save the cost of a trial. Now, she said that he -- she wouldn't -- that she wouldn't pay attention to him and so on and so forth. But this is serious business. This is really serious business. And I think that this juror would look different to us today now that we have seen a much larger array of who's available on this.
Yesterday, you know, the theory on which we are proceeding here is that there are five million people in this division, and there were 3,000 summonses that went out. Both the fairness of the trial and the reputation of this Court, I think, counsels in favor of not having on the jury somebody with all these red flags. So we think this case merits reconsideration.
MR. WEINREB: Your Honor, the government opposes the motion for two reasons. First, we do not believe a motion for reconsideration of a juror should be heard unless there is new information brought to the Court's attention that was not available the first time around. This is simply rearguing the very same things that were argued the last time, maybe in a slightly different way, simply asking the Court to change its mind. We don't think it's appropriate either as a legal matter or as a prudential one. It's not going to contribute to a fair and orderly process for picking a jury.
Secondly, the argument, I would submit, is not convincing. I think that we've had many discussions back and forth about jurors' understanding of what it means to presume someone innocent and that this was a quintessential case where the question was initially interpreted by the juror not in the legal sense but in the sort of lay sense, and then later she understood it in the legal sense and answered it in a way that showed she could be fair and impartial.
As for there being some kind of jury tampering, to say that the trial began on January 3rd --
THE COURT: 5th.
MR. WEINREB: I'm sorry, January 5th -- I think, is not well-taken. It may have begun on January 5th for purposes of 18 U.S.C. 3432, if I cited that correctly, but it did not begin for purposes of these kinds of questions, not to mention that, when the juror was asked whether she would be influenced by what her husband said, she laughed it off in a manner that made it perfectly clear to everybody in the room that it would have zero effect on her. So for all of those reasons, we oppose.
THE COURT: Okay. I'll read the whole transcript of her interview overnight and let you know tomorrow morning. I will say, as to the husband's remark, I'm in agreement with what Mr. Weinreb just pointed out. We saw her reaction to it. The nonverbal part of the reaction was -- I think demonstrated her ability to be independent of anything her husband thought of.
As for going forward, I'm sure that she and other jurors can have the point impressed upon them that they have to keep themselves away from people who would make those kinds of remarks, and people who might should know that and respect their need in that respect.
As to the presumption of innocence, back-and-forth dialogue, I'll look at the transcript and let you know.
I would also say I don't necessarily take an absolutist position about motions to reconsider based on the transcript. I would not think it should be an ordinary course both for procedural reasons perhaps of moving forward but also because it really is harder to assess things on the cold record than it is when the person is sitting right here and you're making judgments as the person is doing that. So I think that the process structurally has some deficiencies that make it probably unwise for it to be a regular thing. That, of course, would go to either side of the case. Okay.
So what I was going to proceed to, if it's time, was my thoughts about some of the people in tomorrow's panel and if you can let us know, you know, so that Jim could call people off tomorrow. I don't think we're going to be in a position to backfill for tomorrow from the next scheduled panel on Monday, but I'm going to see if we can do something so that we can begin to do that next week at some point, if not Monday, soon. That's high on my agenda.
So let me just tell you the numbers that I have and see what you think about them. Some of these are the simple markers that we've done: wage employee, self-employed people whose income depends on their being able to work; scheduled absences from the state or whatever else; and full-time student status. So -- but I have also put in a couple -- I think I have two -- that, when you look at the complex of all circumstances, including some relationship questions, you may agree on them.
So they are the following numbers: 137 -- let me just give you the shorthand, my reason for picking the person. This would be one of the last category I was talking about, multiple potential issues that you should look at. That's 137. 144 is scheduled to be in California for an adoption in the course of the trial. 146 is another multiple-factor possibility. 147 and 154 appear to be wage employees. 155 has scheduled vacations, says two. That's a lot of vacations. And 162 is a full-time student. Maybe you have others.
MS. CLARKE: So that's 137, 144, 146, 147, 154, 155, and 162?