10.Cause Challenges and Juror Qualification Rulings

MR. WEINREB: So we have a motion on him, your Honor. [REDACTED], is, again, somebody who seems like the quintessential example of somebody who, if not prevented, then is certainly substantially impaired about his opposition to the death penalty.

He is, again, somebody who indicated quite clearly he did not want to appear to be an absolutist but, as a practical matter, could not imagine a real-world situation where he would impose the death penalty. And I think that really his views were very neatly encapsulated by his answers to Miss Clarke's last two questions to him. She asked two nonleading questions that were, nevertheless, fashioned in such a way as to elicit from him an affirmative answer to the question whether he could actually impose the death penalty if -- in a real-world situation. And the best he could muster at the end was "perhaps." And that's not a qualified juror under Witherspoon and Witt.

MR. WEINREB: So, your Honor, the government has a motion on [REDACTED]. We acknowledge he's not a clear-cut case like [REDACTED]. Nevertheless, I think this is a quintessential case that somebody, with the Court's ability to observe his demeanor, his manner in answering the questions, is crucial in the realization that he is substantially impaired in his ability to impose the death penalty.

He gave many, many nonverbal cues through his hesitancy, his seeming uncomfortableness, his -- his almost visceral dislike of having to even think about the death penalty, let alone having to focus on the possibility of him imposing it. That betrayed, I think, so much of a reluctance to do it that he is fairly considered substantially impaired.

He said, about the death penalty, I wish there wasn't one. What does it even accomplish? And when asked whether he could actually impose it, he said perhaps there's a situation but said it in such a way that suggested that it was really more of a theoretical proposition for him too. When asked pointblank, could you impose it?, he said, "Yeah, I think I could."

But I think that that -- merely uttering those words should not, in general, and certainly not in this case, be enough to cross the line to establishing that as somebody who can genuinely perform the duties of a juror in a capital case. You have to be somebody who actually could give it meaningfully consideration and impose it in a case where the facts and circumstances show it as being appropriate. And this individual just gave every situation that he's either not that kind of person or is so uncertain whether he's that kind of person that he's not a qualified juror.

MR. WEINREB: Your Honor, we oppose the motion. With respect to the question of hardship, this was not a juror who seemed to have any issue stating his mind on any topic. He was asked specifically in the beginning about whether this would be an undue hardship for him, and then Miss Conrad pursued the matter at some length.

He said that he was someone who initially was reluctant to serve and was among people who were discussing ways to get out of it but then that he decided he was someone who did not want to. So, obviously, it's not something that he feels -- he's too shy or too reluctant to even consider the possibility of asking to be excused. He thought about it. He thought it over. He said he talked it over with his wife. His wife is a lawyer. They're a dual-income family. He -- not working nights or certainly not working on Fridays and Saturdays, he said he might be able to retain some income there. He's a manager. He could easily have said that, as the manager, I'm indispensable. They can't do without me. But he didn't go there.

He's just given every indication that a person can give that a jury service is a sacrifice for everybody, for some people more than others. But he gave every indication a person could give that he understood what the sacrifices would be, and he was prepared to make it, and it wouldn't be an undue sacrifice for him.

With respect to the IED issue, he said that it was his cousin who had been injured but that the cousin had suffered no lasting injury physically. And whether he was asked whether he had any lasting injury emotionally, he wasn't even sure about that.

Those types of questions, whether you have experienced anything in your life that you may be hearing evidence about in the case, a "yes" answer to those kinds of questions is never automatically disqualifying. The question is always whether the fact of the coincidental -- the coincidence of fact would prevent you from being fair and impartial. And he was asked that. He was asked whether it would creep in, whether it would interfere. He was asked in several different ways. Each time he gave it some thought, and he said confidently that it would not.

He also, in response to Question No. 87, which warns jurors that they will be seeing graphic injuries -- graphic photos of injuries and other things, said that it wouldn't disturb him, indicating that he's not somebody who is easily upset or made emotional by reminders of what may have happened to his cousin.

The fact that he served on a murder case 18 years ago --

MR. WEINREB: I'm sorry, was a witness in a murder case 18 years ago, and when he thinks about it today, he still feels some emotion about it, I would argue, is a mark in his favor. We don't expect jurors to be emotionless. The kind of emotion that a juror needs to show during voir dire to warrant excusing them is the kind of emotion that overtakes them, overwhelms themselves, and suggests that, if something triggered that same emotion during the trial, they wouldn't be able to give attention to the evidence or decide the case on the evidence. He gave no indication whatsoever of that. The fact that he got emotional over the murder of a child just means that he's a normal person. Anybody would.

[REDACTED]The idea that -- the fact that he said he wasn't aware that a child was killed, Miss Conrad seems to suggest that the lack of exposure to pretrial publicity somehow means that there's something implausible about him as a juror, and that can't be. He's someone who said he doesn't read the news. He doesn't like to look at it. He's got a three-year-old at home. He doesn't turn that kind of thing on at home. That was certainly sufficient explanation for that answer.

I would just say, in general, with respect to that juror, it's perfectly understandable why the defense would like to strike him. But the truth is that he is somebody who has a lot to recommend him as a juror. He's somebody who candidly admitted that when he was younger, he made some bad decisions. [REDACTED]But he obviously now has a very responsible position in his job. He's married. He has a young child. He obviously cares a lot about that child. He cares about what he's exposed to at home. He's an admirable guy. And he seemed to think hard about the questions the Court asked and struggled to give honest, candid answers. He's someone we should welcome onto the jury.