3.Individual Voir Dire — Initial Juror Examination (Part 1)
368 linesCOURT CLERK: Ready? Juror No. 138.
JAMES MCALEAR: Juror 138.
COURT CLERK: Sir, over here, please. Have a seat. Make sure you speak into the mic so everyone can hear you.
THE COURT: Good morning.
JUROR: How are you doing?
THE COURT: Good. When you left last time you were here, I had instructed everyone to avoid any discussion of the subject matter of the case with anybody. You could talk about coming here, obviously, but -- and also to avoid any exposure to media articles about the case.
Have you been able to do that?
JUROR: Yeah, I haven't looked at anything.
THE COURT: Keep your voice up so everyone can hear you.
JUROR: Yeah. No, I haven't talked to anybody about it.
THE COURT: Okay. Tell us what you do for employment.
JUROR: I work for the City of Peabody. I'm in the water department.
THE COURT: What do you do?
JUROR: I'm in the distribution. I work out in the street doing water breaks, services, fixing all the mains.
THE COURT: And what is the basis of your compensation? Are you salaried or hourly or --
JUROR: I'm hourly.
THE COURT: What would happen if you were on this case for an extended period of time? Would you be paid?
JUROR: Yeah, as far as I know I'm getting paid. Yes.
THE COURT: Even though you'll be here?
JUROR: Yes.
THE COURT: And is that -- you say as far as you know. Is that because you talked with higher-ups about it?
JUROR: My foreman actually was picked for jury duty like a month ago, and he served on a case for a week. So he got paid for the week. If they stop that after a certain time or what, I could find out.
THE COURT: You haven't specifically asked anybody?
JUROR: No.
THE COURT: Let me ask -- we asked you a little bit about social media, and you said you use Facebook?
JUROR: Yes.
THE COURT: I guess you post to it once or twice a week but you check it every day or something like that?
JUROR: Yeah. We drive around in the city truck. If I'm not driving, I'm sitting in the passenger seat just playing on my phone unless we're working. But other than that, I don't really -- I'm not posting on it or talking to people on it.
THE COURT: What's the nature of your use of it? Is it essentially personal, social-type things?
JUROR: Yeah.
THE COURT: Do you comment on public affairs or anything like that?
JUROR: Yeah, I see what my friends are doing and comment on that.
THE COURT: Anybody commenting about this trial?
JUROR: No.
THE COURT: Could we cut the audio for a minute and excuse the reporters?
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
(In open court:)
THE COURT: That is the questionnaire you filled out, so we may refer to some of the questions and it might help you to take a look at it. I'm looking at page 19, Question 74. We asked did you have a reaction when you received the summons to possibly serve on this case, and you said "interested."
Can you tell us what you were thinking when you wrote that; what you might have meant by that?
JUROR: I wasn't sure what to really expect at all. I didn't expect it to be like anything I'd ever done, so I was curious, basically.
THE COURT: Did you have a reaction one way or the other in terms of it would be interesting to serve or just interested to find out and then get excused or what was your --
JUROR: More like to see what it was all about, I guess. I mean, like interested in what would be going on, not like looking to get out of work for a month or nothing like that.
THE COURT: Okay. On the next page, Question 77, we asked people if they had from any source, media or otherwise, formed an impression about whether the defendant was guilty or not or whether he should be punished in a certain way or not, and you answered "no" to all of those questions.
JUROR: Yeah. I wasn't going to make any decisions until I'd seen everything that was presented, basically, in front of me.
THE COURT: In other words, if you were a juror, you would wait to hear what the evidence was before making up your mind. Is that what you're saying?
JUROR: Yes. Yes.
THE COURT: In any criminal case -- you may know, but I'll lay it out, the basics anyway -- in any criminal case a person accused of a crime under our system is presumed to be innocent, or not guilty --
JUROR: Yes.
THE COURT: -- unless and until the government proves otherwise by evidence at trial, and convinces the jury that the person is guilty by proof that leaves them with no reasonable doubt.
JUROR: Uh-huh.
THE COURT: Do you have any concern or hesitation about your ability to -- if you were a juror to ensure that the government proved any crime beyond a reasonable doubt?
JUROR: Yeah, if the evidence was there, yes, I'd be able to make the right decision.
THE COURT: But if it wasn't there, is really I guess what I'm asking, would you then accept that the government had failed and that the verdict should be not guilty in that circumstance?
JUROR: Yes, I would be able to go both ways, whether it's right or wrong.
THE COURT: We asked a series of questions about attitudes or beliefs concerning the death penalty. That's on page 23. It's kind of -- a general question in 88 asks if you have any views in general, what are they, and you said "none." Is that --
JUROR: Yeah. I mean, I've never really -- I don't know. Other than seeing anything on, like, movies or TV shows, I've never really known much else about the death penalty. And -- I don't know. I mean, it never really interested me too much but...
THE COURT: Okay. The next question we asked a slightly different question which was on a scale of 1 to 10 from strongly opposed to strongly favor -- do you -- and you selected 8 indicating -- so you're sort of on the favor side of the weighing there of the death penalty but not quite at the highest level.
JUROR: Yeah, I'd say I'd be more going on the circumstances of the event or -- what happened for, like, each individual, like, that would be that -- the death penalty would be addressing.
THE COURT: You heard me explain this morning the penalty phase where there would be consideration of things --
JUROR: Yes.
THE COURT: -- that might aggravate the seriousness of the offense and things that might mitigate the punishment that should be imposed?
JUROR: Yes.
THE COURT: You've heard about that?
On the next page we asked in Question 90 for you to indicate which of a number of possible statements was closest to your view. You circled E which says, "I'm in favor of the death penalty but I could vote for a sentence of life imprisonment without the possibility of release if I believed that sentence was called for by the facts and the law in the case."
Does that represent your view?
JUROR: Yeah. Yes.
THE COURT: So you would be able to, after hearing all the evidence, consider carefully the alternatives that were available and decide based on your evaluation of the evidence?
JUROR: Yes.
THE COURT: Is that what you're saying?
JUROR: Yes.
THE COURT: You would be open to either? You're not predisposed -- or precommitted, I guess --
JUROR: Yeah, I'd be open to either. Earlier you mentioned something if he is to -- or we do decide to say he's guilty, you said that we would be presented with more evidence.
THE COURT: Yes.
JUROR: Why would we be given more evidence after we make our decision depending on --
THE COURT: Because the first decision is actually whether he committed the crime, he's proved guilty of the crime, okay? That's the first stage. It doesn't consider what penalty might be imposed; it just asks whether you are persuaded by the government's evidence that he has -- he is guilty of a charged crime.
JUROR: Uh-huh.
THE COURT: The second phase is then to consider what the penalty should be for that crime having found him guilty of a capital offense. It would typically be -- or for -- not typically, but an example of a capital offense of which he would be convicted would include an intentional murder, okay?
Once the jury had concluded that the government had proved that, the jury would then decide what penalty should be imposed between two alternatives: the penalty of death or the penalty of life without possibility of release, okay? And in that phase the government would present factors -- evidence about what we call "aggravating factors" that make the crime more serious than other crimes of intentional murder and argue that -- the government would argue that would mean the death penalty is appropriate.
The defense would present evidence about the events or about the defendant himself or other things that might mitigate the punishment and lead the jury to think that the death penalty was not appropriate for him but life imprisonment was better as a penalty for him, okay?
Are you following that?
JUROR: Yeah, yeah, it's that --
THE COURT: So that's why we ask what your disposition is. Are you open to the consideration of either alternative depending on your evaluation of the evidence? That's really the question.
JUROR: Yeah, yeah, yeah. Yes, I am. I'm not more in favor of one way or the other; it would all depend on the outcome of everything presented.
THE COURT: Not to belabor this too much, but let me ask you to look at page 25 at the bottom. Question 95 we ask if you found the defendant guilty and you decided the death penalty was an appropriate punishment, could you conscientiously vote for the death penalty, and you said, "I'm not sure." And if you go to the next question, sort of the other alternative is asked: If you found him guilty and you decided life imprisonment without possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment, and you voted that "I'm not sure." So you gave "I'm not sure" to both. I just want to --
JUROR: I think you kind of answered my question. We were just talking about it would all factor on how everything is presented to me how I would make my decision with that.
THE COURT: So earlier, I think with respect to the question -- we were looking at Number 77, we asked whether you had an opinion about whether he was guilty and what the penalty should be, you said you were reserving until you heard --
JUROR: Yeah, I don't really have an opinion as of now.
THE COURT: Is that the same thing you were saying here?
JUROR: Yes, basically. I would have to wait.
THE COURT: Okay. Follow-up?
MR. WEINREB: Just a bit. Good morning.
JUROR: How are you?
MR. WEINREB: My name's Bill Weinreb. I'm one of the prosecutors in the case. I just wanted to follow up with you very briefly on the questions the judge asked about the death penalty.
So as the judge just explained to you, if the jury were to find the defendant guilty of a crime that is potentially punishable by death, then -- in a capital case, then it's up to the jurors to decide what the penalty should be.
JUROR: Yeah.
MR. WEINREB: The law doesn't require one penalty or the other; each juror has to make a decision.
JUROR: Uh-huh.
MR. WEINREB: Have you thought about, at all, what it would be like to sit on a jury in a capital case and decide whether someone lives or dies?
JUROR: Yeah, it's a pretty serious situation.
MR. WEINREB: And although you've never been in that situation, having to make that decision, do you believe that you could sentence someone to death if you thought that that was the appropriate sentence given the circumstances of the case and the characteristics of the defendant?
JUROR: Yeah, I guess I could -- I can't really say for sure until I would know all the facts in front of me, but if I had to -- if that was the right decision to be made, then I would make the right decision, yes. If that was what I had to do, that's what I would do.
MR. WEINREB: Okay. And just so I'm clear and I understand you, you're using "if I have to." You understand that you would never have to, it would be up to you. You'd make the decision one way or another.
JUROR: Yeah, I'd be able to make the decision. Yes.
MR. WEINREB: All right. Thank you.
JUROR: Yup.
MS. CLARKE: Good morning. It's over here now. My name is Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev.
JUROR: Uh-huh.
MS. CLARKE: And I had just a few follow-up questions.
The judge asked you about your answer to Question 74, if you want to take a look. It's at page 19.
THE COURT: 19, yeah.
MS. CLARKE: And you talked to him about that. I wondered if you would take a look at 75. You indicated that a few people were jealous. Can you explain that to us a little bit more, talk to us a little bit more about that?
JUROR: I think it was right around Thanksgiving I had mentioned it right when I got the whole packet about having to come here, and a few people just mentioned that I was lucky, in their words, and they wished that they got the chance to be here. That was basically it. And I just told -- I was saying that I wasn't really sure how I felt about it yet, it all just came on so quick, so...
MS. CLARKE: Feeling lucky because why?
MR. WEINREB: Objection. I don't know why it's relevant what other people felt.
THE COURT: Well, did other people explain to you why they thought you were lucky?
JUROR: No, it didn't really go much further than that. I really wasn't too interested in talking about it. It was like a family dinner, so we were, like, eating.
THE COURT: So these were family members who were saying it?
JUROR: Yes.
THE COURT: Okay.
MS. CLARKE: What did you take that to mean?
MR. WEINREB: Objection. Same objection.
MS. CLARKE: I'm just trying to get to the --
THE COURT: No, you could answer that, what you thought --
JUROR: I mean as --
MS. CLARKE: Lucky because?
JUROR: I'm not sure. I mean, these weren't like close family members; these are like distant cousins and stuff. It wasn't people I see and interact with frequently. But I'm not -- it's maybe something that they were more interested in than I was or --
MS. CLARKE: So you took no meaning from them saying "Hey, you're lucky you get to go. I wish I could go"?
JUROR: My uncle is -- the only thing I could see him saying --
MR. WEINREB: Your Honor, objection. This is asking him to speculate about what other people felt. He's already said that he --
THE COURT: No, go ahead. Go ahead. Tell us what --
JUROR: I think he's more interested in, I don't know, I'd say like -- I don't know how to put it. I'd say more interested in, like, more action-type things and like excitement, and he'd be more, like, locked in and like more interested in everything that would be going on. Like he would take a lot of interest in this type of stuff, I think.
MS. CLARKE: One more question about that: Was it clear to you that the conversation was about this case coming up?
JUROR: Yes.
MS. CLARKE: For this case?
JUROR: I just assumed it was because a few days before I had noticed on the news that this case was -- the jury selection for this case was supposed to start January 5th along with Hernandez's case. And so that was just what -- I was going under the assumption that it was for this case.
MS. CLARKE: If I could take you to Question 19 on page 8. Are you with me?
JUROR: Yes.
MS. CLARKE: And apparently your sister has a role in your life, right?
JUROR: Yes.
MS. CLARKE: And have you talked to her about the jury summons?
JUROR: Not that I recall. I mentioned it to her, that was about it. I don't recall anything other than her just knowing that I'm here and stuff.
MS. CLARKE: Have you talked to her about the Boston Marathon bombing?
JUROR: Yeah, that was more closer to the event and the time. Nothing recent or since that other than being picked for this.
MS. CLARKE: And did you express any opinion to her about it?
JUROR: No.
MS. CLARKE: Then or now?
JUROR: I'd say then I was more interested in what was really going on and curious to see how everything was going to turn out.
MS. CLARKE: What do you mean?
JUROR: The whole, like, few days -- everything was going on at the time of the event, like. That was about it.
MS. CLARKE: Where were you on that marathon Monday?
JUROR: I was at work. I was right at the end of my day. We leave work at three, so we're usually back a little before -- like 2:40 or so -- watching TV.
MS. CLARKE: And did you watch the events unfold on TV?
JUROR: Yeah. Yes.
MS. CLARKE: And the 19th of April, the last day of the week when Mr. Tsarnaev was arrested, where were you then?
JUROR: We were still working. I think I was -- I think I worked every day that week. I'm trying to remember.
MS. CLARKE: Let me ask this: Did you follow the events on TV or radio?
JUROR: Not really a lot. I mean, here and there I would catch bits and pieces of it, but it was mostly watching for the weather-wise.
MS. CLARKE: Okay. I'd like to ask a couple of follow-up questions about Question 21, your Honor.
THE COURT: Fine. We'll cut the audio, please.
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
MS. CLARKE: I had some public follow-up.
THE COURT: I'm sorry. We'll go back on the audio.
(In open court:)
THE COURT: We're back on? Okay. Go ahead.
MS. CLARKE: If I could take you back to page 25, Question 93, you answered that life in prison without the possibility of release is less severe than the death penalty, and your explanation was that someone being allowed to live their life after taking someone else's life is not always fair. Can you elaborate on that a little bit?
JUROR: I guess it would be more -- I guess it would be more of how the person took the life, it wouldn't be as fair -- if somebody's suffering -- if somebody is killed and they're suffering the whole time, I'd feel that -- I'm not really sure. The death penalty seems like sometimes it could be an easy way out, how it would -- it could go both ways, I guess, but I'm really not sure.
MS. CLARKE: Well, I guess one of the questions is -- and only you know --
JUROR: Yeah.
MS. CLARKE: -- is are you looking solely to the crime itself or something else?
MR. WEINREB: Objection. I don't understand the question.
THE COURT: Yeah, I think it's too vague a question.
MS. CLARKE: The judge has explained that there are two phases to a capital case, the first phase where the jury makes a determination of whether or not the person is guilty beyond a reasonable doubt of the capital crimes.
JUROR: Uh-huh.
MS. CLARKE: And that means, and I think the judge has explained, that you would never get to the penalty phase unless the person were found guilty of the crime, an intentional murder.
JUROR: Yes.
MS. CLARKE: Not a self-defense, not a duress, no excuse.
JUROR: Uh-huh.
MS. CLARKE: Intentionally kill, okay?
JUROR: Yes.
MS. CLARKE: So I'm wondering if that's where you stop in making your determination of whether somebody should get the death penalty or not or whether you want to know more.
JUROR: Yeah. I mean, I can't really say I have a certain line of where I'm going to make my decision or not. It would more depend on the outcome of how everything was presented to me and what -- how everything, like, really played out.
MS. CLARKE: Let me ask it this way: If you made a decision that the person was guilty of an intentional murder, no excuses, in the penalty phase would you be giving consideration, meaningful consideration, to the fact that someone may have had a bad childhood?
JUROR: Yes.
MR. WEINREB: Objection.
MS. CLARKE: Would that make a difference?
MR. WEINREB: I don't think it's appropriate to ask particular mitigating factors.
THE COURT: I think we've ruled that out before. I mean, I think we can keep coming at this. I think the witness has expressed his disposition -- the witness, the juror. I keep calling him "the witness."
MS. CLARKE: Mr. 138. Thank you.
THE COURT: Anything else? You're done?
Anything else?
MR. WEINREB: No.
THE COURT: Okay. Thank you, sir.
COURT CLERK: Right this way, sir.
JUROR: Thank you.
(The juror is excused.)
COURT CLERK: Juror No. 139.
JAMES MCALEAR: Juror 139.
COURT CLERK: Sir, over here, if you would, please. Have a seat. Make sure you speak into the mic so everyone can hear you, okay.
JUROR: Sure.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Have you been able to follow my instructions the last time about not discussing the case with anybody or try to avoid any --
JUROR: Correct.
THE COURT: -- avoidable contact with media stories about this?
JUROR: Correct.
THE COURT: Tell us what you do for a living.
JUROR: I'm an IT professional. So I work for a large computer manufacturer developing platforms for cloud solutions.
THE COURT: And how long have you been doing that?
JUROR: I've been in this role for two and a half years. I've been with the company for about 30 years in the IT space working on different technologies around Microsoft.
THE COURT: And sort of in the hierarchy of employment in the part of the company that you work in, where would you be? Fairly senior in at least longevity. Is that senior in rank as well?
JUROR: Basically I've been staying in the engineering curriculum of my work. I'm fairly high up. I'm at an expert level in the group. I lead the day-to-day activities as a tactical lead. So I have nine engineers and developers that work under me, under my guidance of doing the R&D planning for the product.
THE COURT: That, by the way, is your questionnaire that you filled out, and we may refer to it from time to time. So I just wanted to -- if you look at it on page 5, we asked you whether it would be a significant hardship for you to participate in the case. You said you thought it would be difficult from a work perspective.
Could you tell us a little bit about why you think that's the case?
JUROR: The concerns I would have is really around my active role in the day-to-day management of the products and such. I've had to, you know, alert my management on the potential risk of duration for this trial and concerns around the financial aspects that had to go up through our legal department to get clarity on due to the length of the case. Typically, you know, their policy goes to three weeks, but this is kind of an exception to that.
THE COURT: And have they made an exception --
JUROR: Yes, they have.
THE COURT: -- if you were called to serve?
JUROR: Yes, they've provided that guarantee to me.
THE COURT: Okay. With respect to your use of social media, I see you use LinkedIn, I guess. Do you do anything else? Facebook?
JUROR: Occasionally Facebook for family. I'm not particularly a person who enjoys social media. You know, I use LinkedIn professionally.
THE COURT: Right. Question 33 you said you had a son who was an intern with the U.S. Marshals Service?
JUROR: Correct.
THE COURT: Where was that?
JUROR: Where?
THE COURT: Where, yes.
JUROR: In Washington, D.C. He went to the Washington Center as part of an internship, and they offer various internships. And he was offered one at the U.S. Marshals.
THE COURT: Was he in college or something?
JUROR: Yes.
THE COURT: So this is part of his --
JUROR: Part of his academic.
THE COURT: -- college career?
JUROR: Correct.
THE COURT: Where was he in school?
JUROR: He's at UMass Lowell.
THE COURT: So he's been -- I guess this past fall?
JUROR: Correct. He was actually responsible for managing the -- the detectors that we walk through in the courts, doing the paperwork, managing that. Not particularly exciting but that's what you get as an internship.
THE COURT: I have to ask the question. He didn't have anything to do with this case in any way, did he?
JUROR: No, they would not have that level of privilege or access.
THE COURT: Right. Right. Is he back at school now?
JUROR: Yes. And I apologize for my handwriting. I spend most of my time on the computer and not by pencil.
THE COURT: We've seen worse.
JUROR: Thank you.
(Laughter.)
THE COURT: I guess that was a compliment.
JUROR: I'll take it as a compliment.
(Laughter.)
THE COURT: On pages 17 and 18 we asked a few questions about issues that might arise in current affairs or international matters and so on related to the War on Terror, so-called, and attitudes towards Muslims and Islam and so on and so forth, and you answered those at the time. I just wanted to follow up because since you filled out the questionnaire there have been some incidents it Europe, particularly the Paris shooting.
Are you aware of that, what went on in Paris?
JUROR: I am aware. I've been trying to minimize my watching of headline news.
THE COURT: Even of that? Okay.
My question was going to be whether anything you knew about that would affect or change any of the answers you gave in this section of the --
JUROR: No, they would not.
THE COURT: Would you look at Question 65? It's on page 18. We asked whether you had any beliefs, attitudes or opinions regarding Kyrgyzstan, Russia, Chechnya or Dagestan or the people that live there, and so on, that might make it difficult for you to be completely fair and impartial, and you said you had some concern about that.
Would you tell us what you meant by that?
JUROR: I think in the headline news, those states have been, you know, related to radicalization, so there is some concern there. I haven't studied that. But, you know, in fairness of disclosure, that would be something that I would have to understand.
THE COURT: Where have you read about radicalization in connection with those areas?
JUROR: Just in the headline news you hear about, you know, things that are happening and where some of this radicalization may happen. I don't have any expertise in that area nor have I done much study. But, you know, in full disclosure, there's some concern.
THE COURT: Okay. Would you look at page 19 and Questions 74 and 75. I actually can't read the fourth word in 74.
JUROR: "The significance of this case."
THE COURT: Okay. So you expressed some concern about that as an issue -- you've translated it for me now, the significance of the case and its visibility and so on. Tell us what your concerns are and what -- perhaps a little bit about what strengths they are; how concerned are you?
JUROR: Well, to be frank, I haven't had an opportunity to be a juror before. And, you know, this is kind of going to the other end of the spectrum from doing a trial where, you know, it's not of noteworthy news information. So it is a big case, the concerns to be a part of that as an individual.
THE COURT: I guess I'm trying to get to the nature of -- are you concerned that you won't be able to do a good job at it, are you concerned that people will be watching you and perhaps critical of you? What's the content of the concern, I guess is what I'm getting at?
JUROR: As a professional, you know, you have an expertise within the work you do. Here, this is outside of my wheelhouse, so it's all new to me. There's this general lack of understanding of what happens in the process, the etiquette, the rules, understanding.
THE COURT: So it is -- and correct me if this is wrong. I'm just trying to translate it. Is it your concern that you don't know what's coming and you don't know whether you'll be ready for the unknown?
JUROR: That's a fair assessment, yes. In my job I have to be prepared to, you know, give leadership, give decisions, give quick action. Here, this is a completely different set of circumstances where I believe as a juror I don't get to ask questions and get feedback; it's all presented to me, and I have to internalize that. So it's -- you know, my concern is just more not knowing, you know, the process, not being told the process before.
THE COURT: Okay. Let me ask you about the next page, page 20, Question 77. We asked in this part of the questionnaire whether based on what you'd seen or learned in the media or otherwise you had formed an opinion whether the defendant was guilty and then whether you had an opinion about what the penalty might be, and to Part A of that question you said yes, you had an opinion about whether he was guilty, and to Part C you said you were unsure with respect to the penalty.
So let me focus on the first of those, the opinion about whether he's guilty or not.
JUROR: Part A?
THE COURT: Yeah. It's understandable that people in this case have some impressions about what they think the facts of the case are from the news. If a person is selected to be a juror, that person would hear the evidence in the case presented by both parties and make the decision on the basis of that information base rather than prior --
JUROR: Correct.
THE COURT: -- reporting and so on.
In a criminal case, every defendant under our system of justice is presumed to be innocent, or not guilty, of the charge made against him unless and until the government proves otherwise, proves him guilty at trial by the evidence to a level of proof that leaves the jury satisfied that they have no reasonable doubt about his guilt. We ask jurors to focus their attention on the evidence presented in the case and make their judgment on that. The burden is always on the government to prove that a person is guilty of what he's charged with; a defendant never has a burden to prove he's not guilty or explain away the charge.
If you were a juror in the case would you be able to apply those principles to your own deliberations?
JUROR: Can I embellish a little bit just to explain?
THE COURT: Yes.
JUROR: I think the way I had to answer A was based on subjective news information I had formed an opinion. So I am not necessarily the ideal juror in the sense of true impartiality in that sense. But if I was in this role, I understand the role and I understand the responsibilities of focusing on the presentations, the evidence, presentations from both sides and that, you know, I would have to follow -- or remove those preconceived subjective notions and look purely at the objective process.
THE COURT: And one possibility for somebody who comes into a case with an idea about it, you know, before you've heard any of the evidence, is that you might sort of give the government a head start on that and reduce its burden of proof in practice if not in theory.
Do you think that would be a danger for you?
JUROR: It's certainly something that, you know, weighed into how I had to hit that check box. But, again, I believe it would be my responsibility in this role to become much more objective and take that preconceived notion away.
THE COURT: So if, with respect to any of the charges, after hearing the evidence you thought the government had not proved its case, would you be in a position and would you vote to acquit under those circumstances?
JUROR: That would have to be the case.
THE COURT: On the next page we asked whether you had any participation in various events after the bombings. You say you may have family members who contributed to the One Fund or something else, you just don't know. Have you inquired after filling out the questionnaire knowing we were interested in that, whether anybody had done it?
JUROR: Well, I believe I was under instructions not to talk about any of the questions, so I instructed my family on that and that did not come up. I personally don't know if, you know, there was a check box during charging something in a store or if I donated or anything like that, but there's nothing of significance that I can remember personally, and that's as best I can answer that question at the time.
THE COURT: Okay. Let's go to page 23, Question 88. We began a series of questions here about your attitudes or beliefs concerning the death penalty. Question 88 is a general one. It says basically if you have any views in general, what are they. And you said you're not sure of what your position is.
Is that an accurate reflection of where you are on that as a general matter?
JUROR: Yeah. Yeah, I mean, it's not something I've had to face before other than, you know, talking in a casual setting, you know, on something. But the reality is that it would be a difficult decision just to, you know, go through that process and make that decision, so I would have to take that through a deep thought process.
THE COURT: You're talking about if you had to do it in a particular case. This question I think is a little more -- is a little broader than that. It's sort of do you have any policy views about it in part, the propriety of it, either as a policy matter or as a philosophical matter or anything like that?
JUROR: It is sort of in my Christian views of, you know, life that, you know, I'm generally against it, but in the court setting, again, it would have to be weighed in.
THE COURT: Okay.
JUROR: I'm not -- I'm not saying -- you know, it's undecided at this point based on where I am in this process.
THE COURT: The next question we asked you to provide us some idea on a scale where you were from strongly opposed to strongly in favor, and you have a 6, kind of in the middle.
JUROR: Yes. At this point it kind of goes to the unsureness. It's a neutral position at this point in my views. I'm not strongly for it, I'm not strongly against it.
THE COURT: Okay. We came back at it another way, the next page, Question 90, where we asked you to indicate which of the suggested statements reflected most closely your own assessment, and you selected C, "I'm opposed to the death penalty but I could vote to impose it if I believed the facts and the law in a particular case called for it." Is that --
JUROR: Yes, I could make the decision based on the situation.
THE COURT: And you could not just come to the conclusion that it was appropriate but you could actually vote that the person at the bar would be sentenced to death? You could actually cast that vote?
JUROR: Yes. If that's the decision, then I would have to support that decision.
THE COURT: Well, it would be your decision.
JUROR: Correct. In the context of me making that decision, I would support my decision.
THE COURT: Follow-up?
MR. MELLIN: Very briefly, your Honor.
Good morning, sir. I'm Steve Mellin. I'm one of the prosecutors on the case.
Just if we could follow up a little bit with the death penalty questions. And we all appreciate we gave you this questionnaire and kind of hit you out of the blue when you came in to fill it out.
Having had a little bit of time to think about your answers in the questionnaire and kind of what was going to happen today, do you still kind of put yourself really kind of right in the middle of the road?
JUROR: I probably would be more towards the right, more decision-based on that based on the evidence and understanding of that. So I don't think that would be an impediment to my decision-making process of my own personal values based on what I'm being asked as a juror to do.
MR. MELLIN: Okay. Maybe I didn't understand. When you said "more to the right," what did you mean by that?
JUROR: More towards being able to make a decision and, you know, back that decision.
MR. MELLIN: Now, the judge talked to you this morning a little bit about the process. And do you understand that if the jury finds the defendant guilty of one of these capital offenses, the jury would then decide between life imprisonment and the death penalty. Do you understand that?
JUROR: Right.
MR. MELLIN: And in that process the jury is going to receive information from the government about what we call aggravating factors or reasons why we think it's appropriate, and the defense has the opportunity to put on evidence why they believe the death penalty is not appropriate.
You understand that, right?
JUROR: Yes.
MR. MELLIN: Okay. So in weighing those, though, there really is no objective kind of engineering kind of boxes that you checked, you appreciate that, that that's ultimately going to be a personal decision for each juror?
JUROR: Yes, it will be very subjective. And I believe at that point as a jury we need to come to some consensus.
MR. MELLIN: Right. You're also going to have to come to your own conclusions, right?
JUROR: Right. And advocate to the jury what my conclusions are, if I understand my role correctly.
MR. MELLIN: Okay. And you believe that in going through that process, that if you did believe that the aggravating factors supported the death penalty and outweighed the mitigating factors, that you yourself could vote to impose the death penalty?
JUROR: Yes.
MR. MELLIN: Thank you.
MR. BRUCK: Good morning. I'm David Bruck. I'm one of the attorneys for Mr. Tsarnaev, and I just have a very few questions to ask you, if that's okay.
JUROR: Sure.
MR. BRUCK: You put in the questionnaire that your wife has a degree -- a master's degree in social work?
JUROR: Yes.
MR. BRUCK: And is employed now as a social worker?
JUROR: Yes.
MR. BRUCK: Can you tell me what sort of work she does?
JUROR: She works in -- she goes out to houses and works with families in crises. She usually has one individual child that she's working with, but her focus is to assist the family in working through that crisis. If it's, you know, attempted suicide or an addiction or something like that, she'll work with that family to give them the support and structure to work through that.
MR. BRUCK: And what is the structure of her employment? Does she work for a government agency, is she self-employed and have referrals, or how does it work?
JUROR: She works for a private agency that is paid through -- I think it's Mass. Health, so it's part of an insurance process that their agency, you know, bills for their services.
MR. BRUCK: I see. And it mostly has to do with child services or children --
JUROR: Yes, her role would be in the youths. It could be a young child or a teen. She specializes in teens right now. She's, you know, just finished her -- graduated in the spring, and now she's several months into this employment.
MR. BRUCK: Okay. And what sort of work -- did she work outside the home before she had gone back to school to --
JUROR: Yeah. She was a life coach in kind of a private setting for years as she, you know, brought up our children, and then she decided to progress more into the social-worker skill from there.
MR. BRUCK: I see. Judge O'Toole told you in the instructions -- and I know there was a lot of law coming at your group all at once, but one of the things he told you was that a verdict for the death penalty has to be unanimous.
JUROR: Yes.
MR. BRUCK: Did you catch that?
JUROR: Yes.
MR. BRUCK: And if you do the math on that, that means -- it's not even math, it's logic -- that each juror has to make an individual decision if the death penalty is going to be imposed.
JUROR: Yes.
MR. BRUCK: So that while the jury deliberates and talks and shares their opinions, in the end it comes down to each individual juror.
JUROR: Correct.
MR. BRUCK: You've talked about you have a role in life and in work which involves leadership and giving direction to others. Do you think -- recognizing that -- let me back up.
The decision that you make -- and I think Mr. Mellin talked to you a little bit about this. In the end at the penalty phase, the sentencing phase when a case gets that far, is, as you say, a subjective decision.
JUROR: Correct.
MR. BRUCK: Right?
And it's inevitably a moral decision.
JUROR: Yes.
MR. BRUCK: People differ --
MR. WEINREB: Objection, your Honor. This a lot of instruction with no question attached.
MR. BRUCK: I'm getting to my question.
THE COURT: Let's get to it.
MR. BRUCK: Do you think you could make your own moral choice based on your own values and your own view of the evidence?
JUROR: I would have to make my own choice first.
MR. BRUCK: And by the same token, do you think everyone else on the jury would be entitled to make their own moral choice?
JUROR: Yes.
MR. WEINREB: Objection, your Honor. This is not fairly characterizing what goes on in the jury room, or what should go on in the jury room.
MR. BRUCK: Asked and answered.
THE COURT: It's a hypothetical but he's answered that anyway.
MR. BRUCK: I think on the questionnaire you said you had seen a lot of media coverage.
JUROR: Of the marathon? The incident's been out for several years.
MR. BRUCK: Right.
JUROR: In my engineering role, I am more of a critical thinker, so the information I'm seeing in breaking news in sound bites is not particularly factual enough in nature to make any decisions.
MR. BRUCK: Judge O'Toole asked you, I think, whether the information that you had been exposed to, like a lot of people have been exposed to, did that give -- I can't remember the phrase, but it was, in effect, would that help the government with its burden of proof on the issue of guilt, and you said no, you could put that aside.
JUROR: Yes.
MR. BRUCK: Do you remember that?
JUROR: As a role of a juror, it would be my responsibility to take my preconceived notions and look straight at what's being presented to me.
MR. BRUCK: Well, I want to ask you the same question about the more subjective issue, as you've described it, of the sentence and penalty phase if you were on the jury and it got to that point. You've been exposed to a lot of information. Do you think that that -- the information that you've received would give the government some momentum with respect to the more subjective question of the death penalty, in your mind?
JUROR: I believe if that's really a separate phase of the trial the conclusions are going to be heavily weighted on the decision we make at the first -- at the sentencing phase, I believe is --
THE COURT: No, the first phase is the phase that determines whether he's guilty of any of the crimes or not.
JUROR: The determination of guilt, that would set the stage to -- looking at what's coming in that sentencing phase.
MR. BRUCK: Sure.
JUROR: Again, I don't -- you know, I've never been through these mechanics, so it's, you know, what I'm thinking the process would be like.
MR. BRUCK: Well, understanding -- if you were instructed that -- if you got to the sentencing phase, the scales would be rebalanced, in effect, there would be no assumption -- presumption that the death penalty should be imposed, would you be comfortable with that given everything you know?
JUROR: I don't understand the question in terms of rebalancing because -- you're saying new information is coming in and I have to reassess based on that information. What's --
MR. BRUCK: Right. Well, it's a separate question. There's an issue of guilt or innocence and that gets decided, and then there's an issue of penalty at the second phase. And I think you said that the second-phase decision would have to be largely based on the first. That's what I'm questioning you about.
MR. WEINREB: Your Honor, I object to this because --
THE COURT: Yeah. I think as the juror has suggested, he's talking about a course of events he's unfamiliar with, and it's a little hard to press him, I think, on matters he's really hearing about for the first time this morning. So I think it has to be a broader approach, I guess, to what you're getting at.
MR. BRUCK: If the -- if the defendant were convicted -- if you were on the jury and he was found guilty beyond a reasonable doubt of, in effect, the charges involving the Boston Marathon, the ones you heard about from Judge O'Toole, could you still go in to the penalty phase with an open mind about what the penalty should be?
JUROR: Yes, I would -- I would be given instructions by Judge O'Toole how to proceed into that.
MR. BRUCK: Yes.
JUROR: And I would follow those processes that had been asked for us. And if part of that is coming in with an open mind similar to the first phase, then that's how I would proceed.
MR. BRUCK: Okay. What do your sons study at college? What are the fields they've gone into?
JUROR: One is in business and the other is criminal justice/political science, but he tells me he wants to be a salesperson, so I don't know what that means.
MR. BRUCK: Very good. Well, I appreciate your bearing with me with these questions. Thank you very much.
JUROR: Hopefully I was clear, but it's a little difficult under the circumstances.
THE COURT: I just noticed a couple of things I missed and I wanted to ask you about. If I'm reading this right, Question 25, way back on page 9, it says you are currently a night student?
JUROR: Correct.
THE COURT: What are you studying?
JUROR: I'm taking -- you know, in my 30 years, I have never completed my bachelor's, so I'm pursuing that.
THE COURT: Where?
JUROR: That's also at UMass Lowell.
THE COURT: Okay. That was really it. I just wanted to follow up on that. Thank you. Leave the questionnaire right there.
JAMES MCALEAR: Right this way, sir.
(The juror is excused.)