7.Individual Voir Dire — Further Juror Examination (Part 2)
469 linesCOURT CLERK: Juror No. 143.
COURT CLERK: Juror 143.
COURT CLERK: Sir, if you would, please, have a seat.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Between the time you left us last and now, have you been able to abide by my instructions to avoid discussion of the subject of the case?
JUROR: Yes.
THE COURT: And to try, as much as you can, to avoid any exposure to media articles about the case?
JUROR: Yes.
THE COURT: Thank you.
JUROR: You're welcome.
THE COURT: Tell us about your work.
JUROR: I work at the Harvard Film Archive, and what I do is oversee the public screenings that we do. We show films four nights a week to the general public, semi-tech-type programming. So it's mostly retrospectives of the work of various directors, overviews of national cinemas from various parts of the world. That is to show either old films or contemporary works that isn't going to have a theatrical release.
THE COURT: Four days a week?
JUROR: Yes.
THE COURT: That's a lot of films.
JUROR: Yes. It's a lot of work and it's a small staff.
THE COURT: Where do you show them?
JUROR: Where?
THE COURT: Yeah.
JUROR: At the Carpenter Center for the Visual Arts. It's on Quincy Street. There's a theater in the basement. It seats 200 people.
THE COURT: And you've been doing that for some time?
JUROR: Yes. Well, I've been at Harvard for seven years. Before that I did a similar job in Los Angeles.
THE COURT: Okay. I note that you indicated that you'd spent a year in France.
JUROR: Yes.
THE COURT: Would you tell us when that was and what the circumstances were?
JUROR: Sure. It was 1992. It was almost exactly a year, from August of 1992 to August of 1993. I was there as a graduate student. I got a stipend to go and take courses, although I had actually already finished my coursework for my degree. So it was mostly just a chance to live in Paris for a year.
THE COURT: You occasionally publish reviews of films and articles about film?
JUROR: Yes, not that often, but I do occasionally, not -- yes, mostly small reviews of documentaries for a magazine called Cineaste. That's most of what my recent publications have been.
THE COURT: How many a year?
JUROR: One or two.
THE COURT: We asked -- again, that's your questionnaire if you want to review it.
JUROR: You want me to follow along?
THE COURT: We're following up on some of the answers you gave.
JUROR: Sure, sure, sure.
THE COURT: This is at Page 10, 29 at the bottom. 29 and 30 were about your use of social media. This one was whether you blog or post messages or opinions on websites. Describe that. You say, "Personal and political things on Facebook occasionally."
JUROR: Yes.
THE COURT: Just amplify on that a little bit.
JUROR: I realize that one of the things I tend to do when I'm on Facebook is pontificate on my ideas about various political events. It's true.
THE COURT: Have you talked about this case?
JUROR: No. Well, not since I -- I did blog about the events at the -- not blog. I did post things about the events on Facebook at the time.
THE COURT: As they were unfolding, you mean?
JUROR: Yes, yes. Since I started jury duty, no, nothing, ever since I was summoned here.
THE COURT: Right. But -- so during the week of the events, were you in Cambridge during that time?
JUROR: Yes, yes.
THE COURT: I don't know what you -- we did ask at one point whether you sheltered.
JUROR: I did shelter in place.
THE COURT: We'll come back to that, I guess.
So you posted what? On Facebook some comments about what was going on?
JUROR: Yes. It was mostly -- not about the Marathon, not about the bombing itself. It was mostly the shelter-in-place order as I recall.
THE COURT: Well, let's actually talk about that as long as we've gotten to it. It's on Page 21 and it's Question 81. You say you were asked to shelter in place and had to reschedule an important event at the film archive that evening.
JUROR: Yes.
THE COURT: The 19th, which was the Friday, I guess.
JUROR: Yes. We had brought a filmmaker to Cambridge to present his work that night, and because the university closed for the day, we had to cancel the screening and bring him back another time.
THE COURT: Do you remember when that was?
JUROR: When we brought him back?
THE COURT: Yeah.
JUROR: It was last -- I don't remember exactly. It was probably later in 2013, or it might have been last year. I can't remember to be honest with you.
THE COURT: Does that occurrence -- would it -- does it affect you in any way that would affect your service as a juror in the case?
JUROR: I don't think so personally.
THE COURT: I assume you were annoyed by it.
JUROR: Yes, yes, yes, yes.
THE COURT: The question is whether that's a current issue for you.
JUROR: Oh, no, no, no. It's been resolved now.
THE COURT: You don't have any holdover feelings about it that would creep into the case? That's what I'm wondering.
JUROR: Oh, right. No.
THE COURT: What kinds of things did you post? Did you complain about having to do that or something?
JUROR: Yes.
THE COURT: You were linking your posting that time to the --
JUROR: Well, that was -- when you asked if I talked about events relevant to this case on Facebook, it was mostly I felt that the shelter-in-place order seemed like a bit of overreach by the government and set a bad precedent.
THE COURT: So did you post anything after April 19th about the case?
JUROR: I don't --
THE COURT: Let's do a very broad time. From April 20, 2013, until the day you got the summons in this case.
JUROR: It would have been maybe in the week or two after the event. It's not something that I lingered over. I mean, my opinion hasn't changed since then.
THE COURT: Do you have some, even if it's imprecise, recollection of having done so?
JUROR: Of having posted? I'm pretty sure. I think I did.
THE COURT: Do you know what it would have said?
JUROR: Like I said, I think I complained that -- about shutting down the entire city for a manhunt and about the fact that, in fact, Mr. Tsarnaev was apprehended once the shelter-in-place order was lifted. And so, like I said, it seemed to me sort of a dangerous precedent to disrupt everyone's life.
THE COURT: So your focus of any postings, at least as you now remember it, was mostly about the sheltering in place?
JUROR: Yes.
THE COURT: Rather than the events of the bombing or the pursuit or anything like that?
JUROR: Yes. I may have posted something on Facebook after the -- right after the bombings to say I was safe because a lot of people were posting things like that. But I don't remember if I did -- I don't remember if I did or not.
THE COURT: But, say, in the last year or so?
JUROR: No, no.
THE COURT: We asked some questions on Pages 17 and 18 about general views about some things, including the War on Terror and attitudes towards Islam and Muslims and so on. You answered all those at the time.
You had some -- looking at 61 and 62, you think that the War on Terror unfairly targets Muslims and is overblown and exaggerated?
JUROR: Yes.
THE COURT: I don't know how --
JUROR: Do you want me to expand?
THE COURT: Yeah. Tell us a little bit about that.
JUROR: I mean, I don't know if -- 62, I mean, I definitely believe that there are interests -- there are powerful interests that are invested in instilling fear in the general population and in ways that I think are harmful for a society but benefit certain political interests, certain industries, that kind of thing. I mean, I think the fact that there was one attempted shoe bombing and we have to -- we had to take off our shoes for 12 years. In other countries, when you get on a plane, you don't have to do that. I definitely have opinions, yes, about the War on Terror.
THE COURT: You're aware of some recent events in Paris, shootings and so on and so forth?
JUROR: Yes, of course.
THE COURT: How closely have you followed that?
JUROR: Fairly closely. I mean, I have friends who live in Paris. I go back there every year or so.
THE COURT: You do.
JUROR: Yeah. The last time I was there was April of last year, staying not that far --
THE COURT: Are these social events, or are you going in connection with your work?
JUROR: It's mostly social, social and just vacation and a little bit of work related stuff as well, yeah.
THE COURT: Those events have occurred since you filled out the questionnaire.
JUROR: Yes, that's true.
THE COURT: Would you add anything to what you said in the questionnaire or change anything in the questionnaire as a result of thinking about those events?
JUROR: I don't think so. I have very complicated feelings about those events, but I think that, for the most part, no, I don't think I really -- I don't think I need to change anything on the questionnaire because of those events or because of what I know about those events.
THE COURT: Do you think those events would affect you in any way if you were called to be a juror here? In other words, is there anything about them that's -- either given you some new idea or insight or changed your evaluation of --
JUROR: No. It's caused me to sort of go over my ideas, I think, but I don't think they've changed much. I have thought about them, but I haven't really changed them.
THE COURT: Were any of your friends in Paris affected by them in a personal way?
JUROR: No.
THE COURT: Are they near anything or --
JUROR: I take that back. I have one acquaintance who I heard from another person who lives quite near -- who heard -- who actually heard the shooting apparently.
THE COURT: That's not somebody you've talked to, though?
JUROR: But I haven't talked to him directly.
THE COURT: Let me ask you to turn to Page 70 -- wait a minute.
JUROR: Question 70 or Page 70?
THE COURT: I don't know. What did I say? 20. I meant to say 20.
JUROR: Question --
THE COURT: Question 77.
JUROR: Yes.
THE COURT: We asked on this -- in this question whether, as a result of things you'd seen and learned about from any source, the media included, you had formed an opinion whether the defendant was guilty or not and, if so, what might be an appropriate penalty. Did you -- you checked "unsure" to all of those.
JUROR: Yes.
THE COURT: Would you tell us what you were thinking when you made that choice?
JUROR: Sure. I mean, based on what I -- based on what I've heard about the case, it seems to me that the defendant certainly participated in the bombing. I guess my question was I don't -- whatever argument there might be about mitigating circumstances, that --
THE COURT: Let me try to separate it so we don't cross wires on some of these issues. Let's focus first on the (a) and (b), which is the question of guilty or not guilty.
JUROR: Right.
THE COURT: We'll come back to the penalty issues, mitigating and aggravating. The first one is whether he's guilty or not.
JUROR: Right.
THE COURT: As I'm sure you appreciate, in our criminal justice system, when a person is charged with a crime by the government, he's presumed to be innocent, or not guilty, unless the government proves at trial by the evidence that he is, in fact, guilty and convinces the jury of that fact beyond a reasonable doubt.
People may come to a -- jurors may come to the beginning of a trial having some impressions from the media about things, but we ask them to set those aside and pay attention to what is presented in the case and make a judgment of guilt or not based only on the evidence in the case.
JUROR: Right.
THE COURT: Respecting that the government has the burden of proof.
JUROR: Right.
THE COURT: The defendant has no burden to prove that he's not guilty. It's entirely on the government. Then we ask the jurors to consider that evidence and tell us whether it has convinced them that the defendant is guilty of the crime charged or has failed to convince them.
JUROR: Right.
THE COURT: So the question is: How would you evaluate your ability to approach issues in this case in that way if you were a juror?
JUROR: I believe that I could be impartial, I mean, as impartial as anybody who lives in Cambridge could be. I mean, I think that the presumption of innocence is a really important part of our criminal justice system. And so, I mean, you know, I wanted to be clear on this questionnaire about my political ideas, my ideas about the case, et cetera. On the other hand, I believe that I could be impartial.
THE COURT: So that if -- there are a number of different charges in the case.
JUROR: Yes, exactly.
THE COURT: The jury will be asked to make a judgment about each of them.
JUROR: Exactly.
THE COURT: If, with respect to any of them, you thought the government had failed to produce sufficient evidence of guilt to lead you to be satisfied beyond a reasonable doubt, would you be able to vote for not guilty under those circumstances?
JUROR: Yes.
THE COURT: Now, with respect to the penalty, where, as you heard this morning, it's a separate phase. It starts with the premise, the precondition really, that the person has been convicted of an intentional murder.
JUROR: Right.
THE COURT: And then proceeds to consider the question: What is the appropriate punishment for that given the two alternatives, which are death penalty or life without possibility of release. And that's where the aggravating and mitigating factors come in.
You probably didn't know all that when you said you were unsure here about the penalty, but maybe you can tell us what you were thinking about and --
JUROR: Sure. The reason I put unsure is because I am opposed to the death penalty, as I think I indicated elsewhere on the questionnaire. At the same time, I've never been in a position of having to decide in a particular case whether or not it's applicable.
I'd like to think that my beliefs could stand up to that, but I didn't want to make that assumption. And for that matter, I think that I have strong feelings about the failings of our penal system, and so I feel that life imprisonment without the possibility of release is also a dire sentence.
THE COURT: Let's turn to Page 23. This begins a series of questions about your attitudes or beliefs regarding the death penalty. Question 88 is a general question. If you have any views about the death penalty in general, what are they? And you wrote, "I believe strongly that the government should not execute people."
JUROR: Uh-huh.
THE COURT: Could you maybe flesh that out a little?
JUROR: Sure. Well, I think that my opposition to the death penalty is the same as most people who are opposed to the death penalty, which is that, I mean, for one thing, I have a problem with the state taking -- the right to take someone's life because that is, to me, a punishment of a considerably different order than imprisonment, even imprisonment without the possibility of parole. I also believe that the criminal justice system shouldn't be about revenge but precisely about justice. And so the death penalty seems to me to be, you know, a case of an eye for an eye, tooth for a tooth. And I think that, as a society, we should be on a higher moral standing than people who want to take away someone's life because of disagreements with them. Is that --
THE COURT: Okay.
JUROR: Okay.
THE COURT: Well, no. You're the judge of that.
JUROR: I guess, I mean -- I suppose I could keep going. I think at a certain point I'll start repeating myself or pontificating.
THE COURT: Look at the next question. There we ask you to kind of indicate the intensity, if I could say it that way, of your feelings.
JUROR: Yes.
THE COURT: On a scale of 1 to 10, where strongly opposed, No. 1, reflects the belief that the death penalty should never be imposed. You selected 2, which is a little bit lesser than absolute perhaps.
JUROR: Like I said, there's this pragmatic side of me that wanted to -- I didn't want to be dogmatic, I guess. So that's why I put a "2" as opposed to a "1." I do oppose the death penalty. At the same time I realize that this would be a test of those -- of what have been primarily philosophical ideas for me.
THE COURT: Let's turn to the next page, Question 90. Here we ask you to select one of the proposed formulations that best matched your view.
JUROR: Yes.
THE COURT: You selected (b) that said, "I'm opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it."
JUROR: Uh-huh.
THE COURT: Can you amplify?
JUROR: Again, I think there was -- I was -- I was trying to avoid appearing overly dogmatic but at the same time wanting to signal the depth of my opposition to the death penalty.
THE COURT: Letter (b) says you would have a difficult time. That's in contrast to letter (a), which says "would never."
JUROR: Right. It's hard for me to imagine myself voting for the death penalty.
THE COURT: Well, that was going to be my next question. You said "difficult time." Can you in some way think of a real-world situation where you could think that the death penalty was the right punishment to be imposed and vote for it?
JUROR: Not -- no, not to date. Like I said, no. The reason I put (b) as opposed to (a) is simply because I never had to actually sit through the evidence, et cetera, I mean, so no. My opposition is deep-seated and long-lasting.
THE COURT: So is it just a hypothetical or theoretical possibility that you could vote for it and not a real one? Is that -- that's what we're getting at.
JUROR: Right.
THE COURT: Is there a real possibility that in a given case, in an appropriate circumstance, you could weigh that and you could decide, yes, this is a case for the death penalty?
JUROR: Perhaps. I'd like -- like I said, I'd like to think that my ideas wouldn't be changed by the evidence in a case, et cetera.
THE COURT: Let me just have you turn to the next -- I think it's the next page, Question 95. We asked you there, "If you found this defendant guilty and decided the death penalty was appropriate, could you conscientiously vote for it?" This is a slightly different take. And you said "not sure." I guess, given what you've said, that's a little different from what -- you might have said "no" instead of "not sure." The "not sure" suggests sort of an openness to the possibility.
JUROR: Yes. I guess, in that case, I mean, I'm trying to err on the side of a sense of not having prejudgment.
THE COURT: Okay. I think that's what I have.
Miss Clarke?
MS. CLARKE: It is morning. Good morning.
JUROR: Just about.
MS. CLARKE: My name is Judy Clarke. I'm one of Mr. Tsarnaev's lawyers. Let me just go straight to the death penalty views because I certainly appreciate the position that you've expressed.
I guess what we're really trying to figure out is how to compose a jury that has both pro and con views, right?
JUROR: Uh-huh.
MS. CLARKE: Because I don't think the Court wants to seat a jury that is all in favor of the death penalty or all opposed to the death penalty, right?
JUROR: I would hope so.
MS. CLARKE: Right. So we need to figure out whether somebody who's opposed to the death penalty can actually give it consideration in a given case.
JUROR: Right.
MS. CLARKE: Right? So I hear you, as a policymaker, you wouldn't have it. You would not vote for the death penalty as a policymaker.
JUROR: Oh, no, no. I mean, one of the things that I admire about Massachusetts is the fact that it doesn't have the death penalty.
MS. CLARKE: Certainly. So here's the question: If, in a particular case, knowing that you do not ever have to vote for the death penalty, could your conscience allow you to consider -- if you thought it was appropriate, could your conscience allow you in that case to impose the death penalty if you thought, given those facts presented to you, it was an appropriate punishment?
JUROR: Yes. If I understand the question, I think I could answer that yes.
MS. CLARKE: The question here will be, at a penalty phase, there's evidence of aggravation.
JUROR: Right.
MS. CLARKE: And evidence of mitigation.
JUROR: Right.
MS. CLARKE: And the jury is instructed to weigh those factors and then come to a conclusion. The question is: Can you give fair assessment to the penalty of death in a particular case if you thought it was the appropriate punishment?
JUROR: Yes, I think so.
MS. CLARKE: And if you thought it was the appropriate punishment and could give fair consideration to it, could you actually vote for it in a given case because that's what the law would require you to be able to do?
JUROR: Yes, I know. That would be difficult for me.
MS. CLARKE: Could you do it?
JUROR: I don't know. Perhaps.
THE COURT: Okay.
MR. CHAKRAVARTY: Your Honor, some follow up?
MS. CLARKE: Thank you.
MR. CHAKRAVARTY: Good morning. I'm Al Chakravarty, one of the prosecutors in the case. I'd just like to follow up on some of the questions.
Just as a matter of housekeeping, there were several questions on the questionnaire which you answered "no" to if you didn't have a response to, but there were several which you didn't answer at all. Was it because you didn't have a responsive answer, or was there some substance there that --
JUROR: I think -- I'm not aware of any questions that I didn't answer. There may have been times when there was space to elaborate that I didn't take advantage of it.
MR. CHAKRAVARTY: We don't have to go through every one, but I'm just thinking of Question 9, Question 11, Question 23, 31, 32, 43 through 47.
JUROR: I see. I'm sorry. Those are all -- I mean, for instance 9 is like a -- it's basically a no. I don't believe that I have any of those things.
MR. CHAKRAVARTY: Going to the series from 44 through 46, that's on Page 14.
JUROR: Uh-huh.
MR. CHAKRAVARTY: These refer to, you know, just views of counsel, amongst other people. You left these blank. But you told us a little earlier that you did actually have some strong views about maybe government overreaching particularly in terms of the shelter in place.
JUROR: Yes.
MR. CHAKRAVARTY: Are there other types of experiences that would have been responsive to these questions?
JUROR: No. Other types of experiences? You mean experiences that I've had with the law or with the legal system?
MR. CHAKRAVARTY: Or observations, anything that would be positive or negative.
JUROR: No. I feel my disagreement is with the policies and not necessarily with the people who enforce those policies because I know that there can be sometimes some distance between those, that sometimes -- it's somebody's responsibility to enforce something that he doesn't or she doesn't personally support, et cetera. So that's why I left all of those things blank.
MR. CHAKRAVARTY: And for 51, also left blank, is it -- have you participated in any kinds of organizations that have issues particularly related to the issues in this case, like prisoners' rights or human rights or things related to, you know, the penal system?
JUROR: No. When I was younger, I was active to some extent in -- with the Queer Nation in Los Angeles, active around AIDS, AIDS activism, and that sort of thing, but I'm not active in any of the kinds of groups that are listed here. I may have on occasion given money to, like, the ACLU or something like that.
MR. CHAKRAVARTY: Let's -- on the death penalty question --
JUROR: Yes.
MR. CHAKRAVARTY: -- is it fair to say that for you to impose a death penalty would go against your own moral compass as to what is an appropriate penalty in our society?
JUROR: Yes.
MR. CHAKRAVARTY: Thank you.
THE COURT: Okay. Thank you, sir.
JUROR: Thank you.
THE COURT: Just leave the questionnaire right there.
COURT CLERK: Juror No. 145.
COURT CLERK: Juror 145.
COURT CLERK: Ma'am, step up here, if you would, please.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Barely.
JUROR: Okay.
THE COURT: Since you were here to fill out the questionnaire, have you been able to abide by my instructions to avoid any discussion of the substance of the case or any exposure to the media reports about it pretty much?
JUROR: Media only when there's football talk, I guess, and it kind of falls into that. So it's information that just happens to be there.
THE COURT: Right. I'm talking about information about the case.
JUROR: No, no.
THE COURT: Any reports about the case.
JUROR: No, no.
THE COURT: Okay. There is a lot of football news, I guess, lately.
JUROR: Yeah.
THE COURT: So you are -- according to the form that you filled out -- and it's there for you to refer to as we go through some of these. You describe yourself as a stay-at-home mom but also self-employed as an accountant. You say --
JUROR: Correct.
THE COURT: If you want to look -- this is on Page 10, Question 27, you describe yourself actually as a full-time mom but also self-employed.
JUROR: I work out of my house and take care of my children at the same time.
THE COURT: Right. Is the accounting business sort of a part time or is it -- do you consider -- I'm just focusing on you said full-time mom. I'm wondering if you mean full time applies to the accounting as well.
JUROR: Oh, no. I am, No. 1, a full-time mom. I do work for somebody that allows me to work out of my home to do accounting work. That's basically at my leisure when I have the time available to do that.
THE COURT: The reason I'm interested in it is whether it would be difficult for you to serve on the jury because it would mean you would have to forego perhaps some income that comes from that. You had said to the questionnaire -- question about hardship that it would not be a hardship. I just want to follow up on that.
JUROR: My work is the type of work that -- from what I understand, court would be over by 4:00 in the afternoon. So it's something where I could go home and complete my work at night.
THE COURT: Might be something you do anyway because you've got the kids during the day?
JUROR: Correct, exactly.
THE COURT: I just wanted to be sure about that.
JUROR: Thank you. Yes.
THE COURT: Tell us about your use of social media, if any.
JUROR: Yeah, just Facebook, more like I "like" things as opposed to posting things. It's basically just to keep up with friends. I'm not one of those people though that rants and raves.
THE COURT: Okay.
JUROR: It's more out of boredom, just kind of flipping through a little bit.
THE COURT: Do you do more looking than posting?
JUROR: Correct, yes, looking.
THE COURT: And I assume you haven't posted anything about the case?
JUROR: No, not at all.
THE COURT: If you want to take a peek at Pages 17 and 18, we asked some broad questions about attitudes towards events, current events, international matters, and so on and so forth, such as the War on Terror and perhaps any attitudes towards Muslims or Islam and so on and so forth. You answered those at that point.
Since you've answered those, there have been some events which could be characterized as terrorist events in Paris, for example. Have you read about or seen about those?
JUROR: Briefly on the news, yes.
THE COURT: You say "briefly." You haven't followed it particularly?
JUROR: No.
THE COURT: Would what you know about what happened in Paris or anything like that affect any of the answers you gave?
JUROR: No, not at all because I don't know enough. I don't turn the news on to indulge myself in that type of activity, so --
THE COURT: Okay. On Page 19, look at Question 74.
JUROR: Yup.
THE COURT: We asked what your reaction was when you got a summons, and you said you were honored to be possibly part of the proceedings.
JUROR: Correct.
THE COURT: Tell us a little bit more about that feeling.
JUROR: Well, previous to being called to federal, I had gotten state a couple of times in the mail. You call in and they tell you you don't have to go, and I was kind of bummed out a little bit. I think more so for me, it's a day out of the home so --
THE COURT: This is going to be several months out of the home.
JUROR: Exactly, I know. That's okay. So, yeah, I vote for a reason, and this is expected. So my time has come.
THE COURT: So I guess -- it's my understanding, when you got the state summonses, you were kind of disappointed that you didn't get a chance to --
JUROR: To go, yes.
THE COURT: Was it about jury service principally or was it about this case principally?
JUROR: Well, if I may elaborate a little bit on this case, I didn't even realize -- and I say this in here -- that my summons had anything to do with this case until the day prior to arriving here. We'd been out of state for two weeks in North Carolina, so they don't have things like this on the news there, whereas they do more so here. And I just happened to be watching TV and they were talking more about this particular case. And all of a sudden I just kind of connected dots that that's where I have to go tomorrow. So it was kind of a little shocking to me at first. Like, wow, of all the people who are registered to vote and I'm the one that's getting to go. So I kind of just got over that a little bit and set my alarm clock and showed up.
THE COURT: Okay. On Page 20, would you look at Question 77?
JUROR: Page 20, 77. Okay, yup.
THE COURT: In that question we asked whether -- on the basis of things you'd seen or read in the media or perhaps learned from other sources, whether you had formed an opinion about whether the defendant was guilty or not and then what the penalty might be. Let's talk about first the guilt or not part.
JUROR: Okay.
THE COURT: You answered Part (a) of that question "yes," you had formed an opinion.
JUROR: Based on the media, yes.
THE COURT: You understand that in our criminal justice system a defendant who's charged by the government with a crime is presumed innocent of the crime unless and until the government proves that he's guilty by evidence in the trial that the jury finds acceptable and persuasive so that they can -- the jury can decide that the government has satisfied its burden of proof.
JUROR: Yes.
THE COURT: And on that basis find the person guilty. And, of course, the related point is that, if the jury is not satisfied that the government has done that, it's obliged, actually, to find the defendant not guilty if the government hasn't proven guilt beyond a reasonable doubt. Do you understand those principles?
JUROR: I do, yes.
THE COURT: If you were a juror in the case, understanding you may have some opinions from the media, would you be able to fairly and impartially judge the evidence in the case notwithstanding what you might have heard beforehand?
JUROR: Absolutely, yes.
THE COURT: Would you -- you understand the defendant never has a burden to explain himself or to prove that he's not guilty? The burden is always with the government?
JUROR: Correct.
THE COURT: Would the fact that you might have some ideas before the case, do you think lead you in any degree to expect the defendant to explain things, or would you be able to focus on the government's discharge of its burden, if you understand the question?
JUROR: His lawyers were speaking on his behalf?
THE COURT: Sure. There's -- two sides participate in the trial.
JUROR: Yes.
THE COURT: But the question is the burden of proof is always with the government. Do you understand that? The defendant doesn't have to --
JUROR: Okay, yes.
THE COURT: Doesn't have to prove he's not guilty.
JUROR: Okay.
THE COURT: Do you understand that?
JUROR: Understood, yes.
THE COURT: The question is whether, knowing something or thinking you know something before the case, whether that would interfere with your ability to hold the government to its responsibility without putting any burden on the defendant.
JUROR: Repeat the question.
THE COURT: The government has the obligation to prove a defendant guilty of a charged crime, beyond a reasonable doubt, by evidence at trial.
JUROR: Okay.
THE COURT: The jurors are instructed that if, after consideration of the evidence, they have some reasonable doubt or even considerable doubt about whether the government's case is convincing or not, then the defendant is entitled to the benefit of the doubt and is to be found not guilty.
JUROR: Okay.
THE COURT: Another way of describing that principle is to say that the burden of proof is on the government, meaning it has the responsibility to succeed in persuading the jurors that the defendant is guilty by the evidence.
JUROR: Okay.
THE COURT: Or failing to succeed. If it succeeds, the jurors are authorized to find the person guilty. If the government fails to succeed in convincing them of the person's guilt beyond a reasonable doubt, the defendant must be found not guilty.
JUROR: Understood. Okay, yup.
THE COURT: So the question is: If you were a juror in the case, would you be able to be faithful to those principles?
JUROR: Yes.
THE COURT: Another question we asked is -- at the bottom of Question 77 is asking maybe what I've been asking but in a slightly different way. To the extent you have any opinion from the news accounts or whatever, do you think you would be able to -- able or unable to set aside that opinion if you were a juror and focus only on the evidence presented at the trial?
JUROR: Yes, I would be able to do that.
THE COURT: On the next page, in answer to Question 82, I just want to understand. A friend of yours was running in a race that was going to raise money for the One Fund, and you donated through that mechanism, is that --
JUROR: Correct.
THE COURT: Do you remember to what extent?
JUROR: The amount of money?
THE COURT: Yes.
JUROR: $25.
THE COURT: Any other expressions of support for the OneFund or Boston Strong or anything like that?
JUROR: No.
THE COURT: Let's turn to Page 23, Question 88. Beginning with Question 88, we ask a series of questions about your beliefs or attitudes towards the death penalty.
JUROR: Yes.
THE COURT: 88 is a general question. It says, if you have any views in general, what are they? You said "none."
JUROR: Correct.
THE COURT: Does that accurately summarize?
JUROR: Yes.
THE COURT: Then in the next question, we asked to circle where you were on the spectrum, from strongly opposed to strongly in favor, and you picked No. 5, which is pretty much right in the middle.
JUROR: Uh-huh.
THE COURT: Does that reflect "none"?
JUROR: Well, I've got to know all the facts so I can make a decision. So it's --
THE COURT: Yeah. There are two ways of thinking about this question. One is, in a particular case, what would you do? Another is, as a general matter, as a matter of policy --
JUROR: Okay.
THE COURT: -- is it a good idea that the death penalty is available as a punishment, or is it a bad idea? Some people have views about that. For example, someone who's a 1 would strongly oppose the use of the death penalty, maybe ever and vice versa. There might be somebody at strongly favor at No. 10 who would think that maybe any time somebody is convicted of murder they should have the death penalty. This is kind of gauging where you think --
JUROR: I understand.
THE COURT: Kind of as a policy matter first.
JUROR: So I guess to the degree -- I mean, I don't know previously, like, where the death penalty has ever gone through to that degree of level as to why it happened. So I guess I would have to see all the reasons why the death penalty was in place.
THE COURT: You mean in the factual context of particular cases?
JUROR: Correct, yes, to know the degree as to why the death penalty was given because I don't -- I don't have that thought process to understand, from one murderer to the next, as to why one is guilty and why does one get the death penalty.
THE COURT: I think I understand. As a general matter, you don't feel well enough informed about --
JUROR: Yeah.
THE COURT: -- about the circumstances under which it might or might not be imposed?
JUROR: Circumstances, yes. You could have two people commit the same type of murder, but one gets the death penalty and one gets life in prison. Why does one get one and one gets life in prison. That's why I'm a 5 because I can -- case by case, I suppose.
THE COURT: Okay. All right. So let's go to Question 90. Here we asked you to tell us which among the several proposed statements seemed to match your view about the death penalty in a case with somebody who has been proven guilty of murder. Of course, that's the premise. We don't get to talk about whether there should be a death penalty unless the person has been convicted of intentional murder. That's sort of the given. And then the question is --
JUROR: Yes.
THE COURT: -- what might be the penalty. You say you're not for or against. You could vote to impose it, or you could vote to impose a sentence of life imprisonment without possibility of release, whichever you thought was called for in that particular case, I guess.
JUROR: Yes, going back to what I just previously said, yes.
THE COURT: So you're prepared, I guess, depending on how you hear and evaluate the evidence, on the one hand perhaps, if that's the way you were led, to vote in favor of the death penalty; and on the other hand, if that's the way you heard the evidence, to vote in favor of life imprisonment --
JUROR: Correct.
THE COURT: -- without any --
JUROR: Show me --
THE COURT: -- pre-commitment to either --
JUROR: Yeah.
THE COURT: -- tendency.
JUROR: Walking into the room, you mean, and have my mind made up already?
THE COURT: Not even made up but tending partially to one or the other.
JUROR: No, I'm not.
THE COURT: Okay.
MR. WEINREB: Just briefly, your Honor. Just -- good afternoon.
JUROR: Good afternoon.
MR. WEINREB: My name is Bill Weinreb. I'm one of the prosecutors in the case. I just want to ask you two quick follow-up questions.
You mentioned that when you received the summons you felt honored that you might be able to perform jury service, and you also mentioned that a couple other times you were summoned but you were disappointed because you didn't get picked.
JUROR: Correct.
MR. WEINREB: Have any of your feelings about receiving the summons or not being picked in the past and so on, have those feelings -- do those feelings influence the way you answered any of the questions on the questionnaire?
JUROR: No.
MR. WEINREB: You didn't shade your answers one way or the other?
JUROR: No.
MR. WEINREB: And the second question is: Sounds like, when it comes to the death penalty, just whether it should exist or not, do you have a view on that, whether it should exist or not, as a possibility in some cases?
JUROR: Yes, of course.
MR. WEINREB: What's your view?
JUROR: I mean, if it's there as an option, I mean -- and that's why we're here today so -- I just have to take what's in front of me in that moment and use the resources, I suppose, to -- or evidence to decide either way.
MR. WEINREB: Okay.
JUROR: I hope I'm making my point --
MR. WEINREB: I asked a bad question.
JUROR: -- understandable.
MR. WEINREB: My question was too vague. I guess what I was asking is, if it were up for a vote whether there should be a death penalty at all or not in any case, have you given that --
JUROR: Well, who's voting?
MR. WEINREB: You are.
JUROR: Me and -- okay.
MR. WEINREB: It's up to you.
JUROR: Oh, yes, I mean, yes, yes.
MR. WEINREB: Since you learned that this case that you might be selected for involves the death penalty, have you given any thought, not with respect to this case in particular but just in general? If you were on a jury and the jury had to decide at the end of the case whether the defendant should live or die, whether if you concluded that a death sentence was the appropriate sentence, whether you could actually do it, whether you could vote for it? Have you given that any thought?
JUROR: No, because I -- this is where I'm at today in the process. So I've just come to this point, and I just need to live the day to day and then just deal with what's in front of me at that time. I can't -- I don't want to think too far ahead at this point.
MR. WEINREB: I appreciate that it's hard to predict how you would behave in any future situation, and I'm certainly not asking you to predict what you'll do in this case if you're picked as a juror. But I am -- this is our last time to ask you questions.
JUROR: Okay.
MR. WEINREB: And we're -- one of the things we're trying to figure out is whether -- is what to make of some of the answers in the questionnaire. And so let me just ask you to give it some thought, if you would, and imagine yourself, you know, in a situation where you have to make a decision about whether somebody should live or die. You've heard the evidence. You've weighed the evidence, and you've decided that this is a case where the death penalty is an appropriate sentence.
But now there comes a separate step where you've not just decided that that's the appropriate sentence. Now you actually have to do it. You have to --
MR. BRUCK: I'd like to object to this unless it's been made clearer than it has been that Mr. Weinreb is not asking about this case.
THE COURT: I think he said that, but if you want to emphasize that.
MR. WEINREB: I want to emphasize I'm absolutely not asking you to make any prediction about how you would vote in this case. You haven't heard any evidence in this case.
JUROR: Correct.
MR. WEINREB: Some other hypothetical case where you've heard all the evidence and you have personally weighed all the evidence, the factors that the judge has told you are important to weigh, and you've come to the decision that this is the kind of case where the death penalty is an appropriate sentence. Could you do it? Could you vote for it knowing that you were sending someone to their death and you couldn't take that back?
JUROR: As a juror, yes.
MR. WEINREB: Thank you.
THE COURT: Mr. Bruck?
MR. BRUCK: Good afternoon.
JUROR: Hi.
MR. BRUCK: My name is David Bruck, and I'm one of Dzhokhar Tsarnaev's lawyers, and I have a few more questions, if you don't mind, if that's okay.
JUROR: Of course.
MR. BRUCK: You remember, when Judge O'Toole talked to the group of you earlier today, and I think maybe also when you first came to court, he said that if you -- what he wants from everybody is to say how you really and truly feel. And if you do that, you will be doing your duty as a citizen and a juror, no matter what you say. Are you with me?
JUROR: I'm with you, yes.
MR. BRUCK: So I want to drill down a little bit.
JUROR: Okay.
MR. BRUCK: Because sometimes people feel like they're supposed to say something.
JUROR: Okay.
MR. BRUCK: And that's not what we want.
JUROR: All right.
MR. BRUCK: We want to know what's really there. When you came to court and you saw Dzhokhar Tsarnaev, what did you feel? What did you think?
MR. WEINREB: I object.
THE COURT: Sustained, yeah.
MR. BRUCK: I'll ask you a different way. You said that you had the opinion, based on everything you've heard, read about the case, that he should receive the death penalty. You filled that out on your questionnaire, No. 77.
JUROR: Based on media, correct.
MR. BRUCK: Right. Understanding that it was based on -- not on evidence at trial, you know, being a juror. It was based on whatever it was based on. My question is: What was it based on? What -- why did you feel that way?
JUROR: What did I hear in the media that made me form that opinion?
MR. BRUCK: Exactly.
JUROR: Everything, the death of the four people and the actions that were taken to make the unfortunate happen.
MR. BRUCK: Can you tell me a little more about that?
MR. WEINREB: I object.
THE COURT: I think that was a full answer.
MR. BRUCK: Okay.
THE COURT: As full as we require, I guess I should say.
MR. BRUCK: And that led you to conclude that -- based on those facts, that the death penalty would be appropriate?
JUROR: Yes.
MR. BRUCK: Okay. And if you were on the jury and the jury convicted Mr. Tsarnaev and you went into the penalty phase, having reached that conclusion based on the publicity that's been -- that you've heard, been exposed to, do you think that you might still be leaning in favor of the death penalty rather than against it?
MR. WEINREB: Objection. I think that's too confusing.
THE COURT: Yeah. I think it is a little. Try again.
MR. BRUCK: Okay. You said you formed the opinion, based on what you heard, that the death penalty was appropriate. And now I'm asking you to assume that you're on the jury. The jury has convicted him, has found that he committed the Boston Marathon bombing or played a role in it. And you're now with the rest of the jury going in to make the decision about what the punishment should be. The only options are life imprisonment without release and the death penalty.
Based on the fact that you have already formed -- that you already formed an opinion, do you feel like you are -- you would, when you reach that point, already be leaning in favor of one decision or the other?
MR. WEINREB: I object.
THE COURT: Go ahead. You can answer that.
MR. WEINREB: It's not relevant.
THE COURT: No. Go ahead.
JUROR: I think, going back to my previous comment is that, based on the evidence, I don't know as to what gravity a crime needs to be committed to then have someone have the death penalty. So I can't give an honest answer right now because I don't -- nothing has been given to me to have -- to say, yes, I would go with the death penalty or, no, he should have life in prison.
MR. BRUCK: I guess the question -- I understand that you haven't made a final decision. I guess my question is: Given the opinion that you said you had on the questionnaire, whether you -- whether the government is ahead in your mind, whether you lean one way rather than the other?
MR. WEINREB: Your Honor, I object because the question is not making it clear that there will be a whole penalty phase where evidence will be presented both for and against the death penalty. Given that --
THE COURT: Well, take that into --
JUROR: Can I add to that a little bit?
THE COURT: Yeah, go ahead.
JUROR: If the facts are there and I've given thought to it and it's in that -- it's crossed that line where, yes, there should be death penalty, then that's what it is. If it hasn't crossed that line and it's life in prison, that's what it is. I'm not against it, and I'm not for it.
MR. BRUCK: You have two very small children, and you're a full-time mom.
JUROR: Yes.
MR. BRUCK: Are there child-care arrangements you could make if you were on this trial for four months?
JUROR: Yes. It would be difficult, but I would have to make it happen.
MR. BRUCK: Okay. Excuse me just a moment.
In deciding whether to impose the death penalty, the jury not only considers the facts of the crime -- I think Judge O'Toole told you a little bit about this -- but also considers mitigating factors, which might include the age of the defendant or things like the age of the defendant, whether he had a prior record, what his family record is. Are those things, for a person that commits an intentional murder, that could ever -- could you give meaningful consideration to those factors for someone who has beyond a reasonable doubt committed an intentional murder?
JUROR: Are they factors that are going to be presented during the trial?
MR. BRUCK: If they were.
JUROR: Then if they're part of the trial, then I would have to go along with that as part of the trial in my decision.
MR. BRUCK: Okay. We need to check with everybody to see if they have a Twitter account. Do you?
JUROR: No.
MR. BRUCK: Okay. Have you had a Twitter account?
JUROR: Never.
MR. BRUCK: Okay.
THE COURT: All set?
MR. MELLIN: Can I just ask one other area that nobody has talked about yet?
THE COURT: Okay.
MR. MELLIN: Ma'am, could I have you look at Page 25, Question 93? And we ask you there to kind of describe if you believe life without release is more severe or less severe than the death penalty. Do you see that list of questions or boxes?
JUROR: Yes.
MR. MELLIN: You checked "more severe than the death penalty." Can you just explain your selection?
JUROR: Kind of basing it off my explanation, I don't know what kind of captivity he's going to be in, if he is in, like -- if it comes that he has life in prison. Someone of this stature, like, what kind of imprisonment is it? Is he with the public or is he not? Is it going to be worse? If he's with the general public, then maybe that would be less severe than the death penalty. But if there was a captivity involved, then maybe it would be more severe than the death penalty so -- and I don't know. Maybe I'm just naive with all of this.
MR. MELLIN: No. That's fair. We kind of catch you off-guard. I apologize. I'm one of the prosecutors as well. We kind of catch you off-guard with these questions.
If the judge were to instruct you, if you're on the jury and we get to this penalty, that between the two punishments, the death penalty is a more severe punishment than life imprisonment, would you be able to follow that instruction?
JUROR: Yes.
MR. MELLIN: So you would understand that, when you're weighing these options, that the more severe of the two would be the death penalty?
JUROR: Yes.
MR. MELLIN: Okay. Thank you.
JUROR: I understand the question. Yes.
THE COURT: Okay. Thank you.
JUROR: All set?
THE COURT: Yes. Just leave the questionnaire.
JUROR: Thank you.
THE COURT: Before the next person comes in, which is 152, I think, could we cut the sound, cut the audio?
(SIDEBAR CONFERENCE AS FOLLOWS:
[REDACTED]
MS. CONRAD: I'm sorry?
THE COURT: It seems consistent with his answer.
MS. CONRAD: Yes.
THE COURT: So no inquiry about it?
MS. CONRAD: Correct.
THE COURT: That's all. Now we can go back on.