9.Individual Voir Dire — Final Juror Examination (Part 4)
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(In open court:)
THE COURT: Okay. On pages 17 and 18 we ask some questions about -- you might call it current events or international events and so on, a couple of questions dealing with the War on Terror, some questions about attitudes towards Islam or Muslims and so on and so forth. Do you remember filling all that out?
JUROR: Yes.
THE COURT: Let me have you look on page 17, 61 and 62. We asked whether you thought the War on Terror unfairly targeted Muslims and whether you thought it was overblown and exaggerated, and there are marks for yes or no and you added "don't know." Can you just tell us what your reason for that was?
JUROR: Well, very rarely do I watch anything on the news or read the paper or -- I stay away from a lot of media, so I don't know much about the issues here. I don't know much about War on Terror or Muslims or -- I'm, unfortunately, very uneducated in that category.
THE COURT: Okay. On page 20, Question 77 near the top we asked based on what you'd seen or read in the news or maybe from any other source, whether you'd formed an opinion about various matters: first, in A and B, whether the defendant was guilty or not guilty; and then second, in C and D, what the penalty might be.
Let me ask you about A and B first. Well, let me ask you about all of them. All four you checked you're unsure.
JUROR: Correct.
THE COURT: Can you tell us why you thought that was the appropriate selection?
JUROR: I'm unsure because I don't know all the facts of anything really. I know a little bit of what the media tells you, which I don't necessarily believe in the media. I believe that I'm unsure unless I hear all the facts from both sides.
THE COURT: So you've participated as a witness in a criminal case --
JUROR: Correct.
THE COURT: -- right? A serious criminal case, I guess.
JUROR: Right.
THE COURT: So you understand that in any criminal case a defendant who is accused of a crime is presumed to be innocent --
JUROR: Innocent.
THE COURT: -- unless and until the government proves that he's guilty beyond a reasonable doubt.
JUROR: Correct.
THE COURT: Right? The burden is always with the government and the defendant never has any burden to prove that he's not guilty. He can oppose the government's case, obviously, but in the end the question is not which side has convinced me but has the government convinced me the defendant is guilty.
Do you understand all of those principles we apply?
JUROR: I do.
THE COURT: And would you as a juror be able to faithfully apply those principles if you were a juror in this case?
JUROR: I believe I would.
THE COURT: To the extent you have any ideas about whether the defendant was guilty or not from other sources before the case commenced, would you be able to put those aside and concentrate only on the evidence or would those ideas intrude in some way as you listen to the evidence in the case?
JUROR: I would like to believe that they would not intrude. I believe that I could be objective, I guess -- or, you know -- but I don't know. I'm not currently in that position under those stresses or circumstances.
THE COURT: We're talking about something that is off in the future and it's under conditions we don't know exactly what's obtaining, but this is really in part a question about you rather than about the evidence.
JUROR: Right.
THE COURT: Would you be able to focus your attention on what's in the trial and put aside other things, or, again, would you think you would find those other things filtering in and affecting and being a problem for you in trying to focus only on the --
JUROR: No, I believe I could stay focused.
THE COURT: If you'd turn to page 23, beginning with Question 88 we asked a series of questions about the death penalty. And in 88 there was a question in general, "What do you think of the death penalty?" And you said, "Do not know."
Do you want to perhaps expand on that or tell us what you were thinking when you wrote that?
JUROR: Sure. Let me just read through the question one more time --
THE COURT: Yeah. Take your time.
JUROR: Thank you.
(Pause.)
JUROR: Well, I've never --
THE COURT: Let me just make sure that you understand we're trying to find out what your views are, okay? So -- the question literally is asking for what you thought when you wrote that. I want to let you know if you think something different since you've written that, we should know that too, okay? So I just want to -- if, for example, you didn't know then but now you have a better idea about what you think, then we want to know.
JUROR: I think that's probably the case. I think that, you know -- at the time I never had to think about the death penalty before. It's never been a topic or a subject that I've ever had to consider or think about, so I don't know what my views are or were. I think now that with some reflection -- I think that maybe that would have been -- would be an applicable punishment for something. I don't know what that something is but there's -- I'm sure at this point there's, you know, a level of heinous crime that may deserve that. So does that help?
THE COURT: Okay. So let's look at 89. We asked you to locate on a scale where your opinion might be from 1 to 10, 1 being strongly opposed to the death penalty and 10 being strongly in favor, and you selected 6. Would that still -- as you've now explained your further thinking on that, would that still be where you would place that assessment or would you change that?
JUROR: Yeah, I was using 6 as slightly above somewhere in the middle, I guess was my thought process there.
THE COURT: Right.
JUROR: You know?
THE COURT: And I guess my question is now that you've thought further about the issue since you filled out the questionnaire, would you still put it in 6 or would you put it someplace else?
JUROR: I think I would leave it in 6, somewhere in the middle.
THE COURT: On the next page, Question 90, here we ask you instead of putting it on a numerical scale, we asked you to try to find the statement that came closest to what you might think about it. You circled E which is, "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."
Why don't you just -- because you've had some development in your thinking, why don't you just read through that entire question and see if that still represents the view you would -- whether that's the best choice to represent your views.
(Pause.)
JUROR: Again, I believe that D would be the 5 mark for me, and I guess I'm a 6. I'm slightly in favor of and could, if needed to, if I felt that was the right punishment for a crime. So slightly above --
THE COURT: So it says, as you want to put it, slightly in favor of the death penalty?
JUROR: Uh-huh.
THE COURT: But despite being slightly in favor, you could vote for a sentence of life imprisonment instead of the death penalty if you thought that was the appropriate sentence on all the facts of the case?
JUROR: Correct.
THE COURT: And then if you'd go to 25 and 26 -- 25 at the bottom, 95, this is really two paired questions. 95: "If you found the defendant guilty and decided the death penalty was the appropriate punishment, could you conscientiously vote for it?" and you said you're not sure. Then if you look at 96, it was kind of a companion question. "If you found the defendant guilty and you decided life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment without the possibility of release?" and you said you're not sure.
So in other words, you said "not sure" to both of those options.
JUROR: Right.
THE COURT: Could you maybe tell us what you were thinking?
JUROR: I think the way that I feel is that it was very difficult for me to make that decision without knowing whether I'm really for or really against or somewhere in the middle. I've never been in that situation to know whether I could. You know, I'm not sure if I --
THE COURT: And that's sort of the question. If you had the idea that -- for example, if the death penalty was appropriate for this offense and this offender and you were on the jury and it was not just a statement of opinion but it was something that would actually result in the imposition of the death penalty and your vote would be part of that process, would you be able to conscientiously vote for that?
JUROR: I believe I could.
THE COURT: And the same for the life imprisonment?
JUROR: Correct.
THE COURT: Mr. Mellin?
MR. MELLIN: Thank you, your Honor.
Good afternoon, sir. I'm Steve Mellin. I'm one of the prosecutors in the case.
JUROR: Good afternoon.
MR. MELLIN: Let me start with what you just said. You said you thought you could. Now that we're kind of drilling down to really this issue of -- you know, it's no longer really a theoretical question just kind of floating out there, there may come a point in time where you're going to be asked that question.
When you say you think you can, is there a reason why there's the hesitation that you kind of expressed?
JUROR: I think the hesitation is because I haven't -- I haven't had to think about something like that ever before, you know, whether I could or would do something like that. I'd like to say, you know, I have -- I'm a man of character and I make good decisions now -- obviously, after -- my record doesn't show I made great driving decisions, of course -- but I'd like to say that I make educated decisions and critically think about things.
And I believe at this point, you know, the "not sure" is because I hadn't critically thought about how I would answer questions. And I think, you know, that's kind of the "I'm not sure," you know, part of me going: I haven't thought about this. I don't know. I've never been in that position. I don't have all the facts. I don't know all the details. I've stayed away from all information regarding any of this.
So I think that that's why -- you know, where the "I'm not sure" would come from, you know? I think after hearing all the facts, then I would be able to critically think and make the right decision, if that makes any sense.
MR. MELLIN: No, it does. And we appreciate that we're asking you something that people don't typically talk about, people don't typically think about, and then we're asking you something that comes with a substantial burden which is deciding whether or not someone is going to live or die. We're just trying to get a sense if you are in that position, would you be somebody who is able to do that and is not morally opposed to it or something along those lines?
JUROR: I think that I could.
MR. MELLIN: Okay. On Question 93 on page 25 there's a list of boxes that talk about life imprisonment relative to the death penalty, and you checked the box that life in prison is more severe than the death penalty. Do you see that?
JUROR: I do.
MR. MELLIN: Can you just explain to us kind of why you checked that box?
JUROR: Like I wrote, I could not spend the rest of my life in prison. I think, and maybe this is bad to say, but I'd almost rather have the former -- or latter, or however you want to say it. I think that -- I think being locked up forever is worse, personally, for myself, anyway.
MR. MELLIN: Right. If the jury were to get to this stage where the jury's deciding life or death, would you be able to follow Judge O'Toole's instructions that the death penalty is the more severe --
MS. CONRAD: Objection.
MR. BRUCK: Objection.
MS. CLARKE: Objection.
MR. BRUCK: The death penalty is or is not the worse punishment.
MS. CONRAD: That is not the law.
THE COURT: I think it is.
MR. MELLIN: It is the law.
THE COURT: I think the law regards the death penalty as the more severe punishment.
MS. CONRAD: I object to that, your Honor. I mean, it's a personal decision to the juror.
THE COURT: Do you know the case?
MR. MELLIN: I don't know the case off the top of my head, your Honor, but I know that is the law. I'm happy to provide.
THE COURT: I'm sure I've read it.
MS. CLARKE: You've just had three people on this side of the table objecting, so...
THE COURT: No, I understand.
Go ahead with it.
MR. MELLIN: Would you be able to follow the instruction and consider that the death penalty is the most severe of these two possibilities?
MS. CONRAD: Objection.
THE COURT: Let's put it this way: If you were instructed that that was the law, contrary to what -- you might have your own assessment, would you be able to follow the instruction?
MS. CONRAD: Your Honor --
THE COURT: There's a debate as to whether it's the law. So on the hypothesis that it is -- that the law would have a way of ranking these as which is worse than the other, or which is more severe than the other, and you were told that and it went against your instinct, would you be able to go against your instinct and follow the law?
MS. CONRAD: But, your Honor, excuse me. If I may, that suggests that the law would instruct the juror as to which penalty to choose --
THE COURT: Correct.
MS. CONRAD: -- as opposed to it being a question of individual conscience and --
THE COURT: I understand. That's why I'm phrasing it as a hypothetical: If that's the law. We'll find out whether it's the law. If he were to get an instruction to that effect, that's all.
MS. CONRAD: But that would not be outcome determinative even if that were the law.
MR. MELLIN: Your Honor, the reason why this issue has ever even been brought up is because defense attorneys in other cases claim there's penalty inversion that goes on if the jurors don't --
MR. BRUCK: I'd object to this, your Honor. This is not proper.
THE COURT: You can have the hypothetical question as -- do you want to say it or I'll repeat it?
MR. MELLIN: Your Honor can repeat it. That's fine.
MS. CONRAD: Note our objection.
THE COURT: Okay. So you could see there's a dispute about whether the law has a position on that and we'll solve it, okay?
JUROR: So is the --
THE COURT: So on the hypothesis, which is just that, that the law has a ranking and ranks death penalty as more serious than life imprisonment as a consequence for some purpose, and that was inconsistent with what your own personal assessment might be, would you be able to follow the instructions?
JUROR: I could certainly follow instructions and follow the law if that's -- if that's the law. Just because something is the law doesn't mean that you have to agree or approve, but you do have to follow it. So if the law says that that is, then that is.
THE COURT: That, of course, doesn't -- I think part of the concern on the other side of the table is that doesn't mean that you have to necessarily make a choice in favor of or against either of the possibilities. This is just a question of whether you would be committed to following legal instructions. I guess that's really what it is.
JUROR: Yes, I'm committed to follow legal instruction.
THE COURT: I don't know if that's --
MR. MELLIN: Thank you. That's fine, your Honor.
And then let me jump back to the case where you were a witness. How were you treated in that case by the prosecutors?
JUROR: I'm not sure how you mean. How was I treated?
MR. MELLIN: Yes. Is there anything about that that you felt as if you were forced to testify? Because there was a little bit of -- I sensed the little -- even emotion to this day when you were talking about that, and I was just wondering what's the genesis of that emotion.
JUROR: I was not forced to testify. I was asked, not forced. I was not under duress. There is emotion. She was one of my friends. And, you know, I now have a child and he killed his child. So it does bring up emotion. But at the time I was happy to testify, if that makes --
MR. MELLIN: Sure. Understood. Was there anything about that process that you hold either against the prosecution or defense attorneys in this case?
JUROR: No, sir.
MR. MELLIN: Okay. Thanks.
MS. CONRAD: Good afternoon.
JUROR: Good afternoon.
MS. CONRAD: I'm Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
Following up on the last question, I understand this is an emotional subject for you, but am I understanding correctly that it's not your experience of testifying but the underlying facts of the case about which you were testifying that is emotional for you?
JUROR: Correct.
MS. CONRAD: And how old was the child?
JUROR: Just a couple of months old.
MS. CONRAD: And how long ago was this?
JUROR: Oh, my God. 18 years ago, if I remember correctly.
MS. CONRAD: And you mentioned that you have a child now?
JUROR: I do.
MS. CONRAD: And you know that in this case one of the things that's at issue is the death of a child. How would your experience in that case, your experience being a father, affect you in listening to testimony and seeing evidence about the death of a child?
JUROR: Well, I was not aware that there was a child involved, first off. I'm, again, not familiar with all of the facts of the case. I saw very limited coverage. And in my house that stuff does not go on TV. I have a three-year-old at home, so we don't watch things like that. So I was not aware that there was a child involved.
Would it affect me to see details about that? Of course. I think it would affect anyone to see details of that.
MS. CONRAD: Would that affect your ability to be impartial in evaluating the evidence or would you think your emotions, which of course are understandable, would make that difficult for you, especially if you were to see graphic images of an injured or dead child?
JUROR: I think the whole process would be difficult but I don't think it would inhibit my ability.
MS. CONRAD: Do you think in a case where one of the deaths that occurred was the death of a child you would be able to consider a sentence of life without parole or life without possible release.
MR. MELLIN: Objection.
MR. WEINREB: Objection.
THE COURT: Yeah, I think -- yes. It's too isolating.
MS. CONRAD: Okay. I'll go to something else and then I'll think of a different way to ask something similar but not exactly like that.
You said that your cousin, I think it was, who you're close with, was in combat and spoke with you about that?
JUROR: Yup.
MS. CONRAD: And that was in Afghanistan, I think you said?
JUROR: Correct.
MS. CONRAD: And how -- can you tell us a little bit about how he was affected by that experience? I'm assuming it's a he.
JUROR: It is a he. You want to know about the incident that happened while he was there?
MS. CONRAD: I didn't know there was an incident but --
JUROR: Well, that's what he told us about, our family. He came home injured. An IED hit his Hummer and blew up in the front seat and flipped it over. He came home with shrapnel in his face and in his arm, and was attacked. So he saw actual combat and injury and was sent home.
MS. CONRAD: Does he still have physical injuries to this day?
JUROR: No.
MS. CONRAD: What about emotional?
JUROR: I don't believe so. Again, we're not as close now as we used to be. Again, we lived side by side for most of our life, but since he has a family and I have a family, we're not as close. So I honestly couldn't tell you if he has emotional or --
THE COURT: Could I just interject, when was the incident in Afghanistan, do you know? What year?
JUROR: Oh, boy. I'm terrible with time frames and days but I would have to say it was five, six -- five or six years ago. He just came home now from his second tour. He just came home last month, so I would have to say it was five years ago?
THE COURT: Okay. All right. Go ahead.
MS. CONRAD: And I'm not sure if you're aware of this, but you may -- the jury in the case may hear evidence that a motive for the bombing was -- had to do with American involvement, military involvement, in Afghanistan and Iraq. Do you think that your cousin's experience and your relationship with your cousin would affect your ability to listen to that evidence or would you have an emotional reaction to that?
JUROR: I don't believe I would have a problem listening to those facts or have an emotional reaction.
MS. CONRAD: Turning to Question 77 on page 20, and the judge asked you some questions about this --
JUROR: I'm sorry. What page did you say?
MS. CONRAD: Page 20.
JUROR: Okay.
MS. CONRAD: When Judge O'Toole asked you about this, you said, well, you'd have to hear all the facts. So the question -- or at least my question here is: As you sit here today, do you have an opinion about whether Mr. Tsarnaev is guilty or not?
JUROR: Yes, I guess I do have an opinion.
MS. CONRAD: And what is that opinion?
JUROR: My opinion is that he's innocent until proven guilty.
MS. CONRAD: My question is not what the legal requirement is but based on what you've heard about this case through the news media or from talking to other people, whether you have an idea in your mind -- not a legal decision, but an idea in your mind -- about whether he's guilty or innocent?
MR. MELLIN: Objection, your Honor. Asked and answered.
THE COURT: Go ahead. You could answer.
JUROR: Okay.
I'm not exactly sure how to answer it. I believe that he had involvement and was involved in what happened. I do not know to what extent. So I guess if the involvement itself is -- means that he's guilty, I guess that would be a yes. I don't know to what extent his involvement is.
MS. CONRAD: If the government presented evidence that showed his guilt but was not enough to show his guilt beyond a reasonable doubt of some or even all of the charges against him, would you be able to return a verdict of not guilty?
JUROR: Yes. If they could not prove beyond a reasonable doubt that he was guilty?
MS. CONRAD: Right.
JUROR: Then yes.
MS. CONRAD: And would you be concerned about how others would react to that?
JUROR: No.
MS. CONRAD: Do you have an opinion as you sit here about whether he should receive the death penalty if he is found guilty?
JUROR: No, I do not have an opinion on that.
MS. CONRAD: You said in response to -- I think this is on page 19 -- that someone said to you that it would be awesome if you were picked for this case?
JUROR: Uh-huh.
MS. CONRAD: And how did you respond to that?
JUROR: I think the response was, "Awesome for who," you know? I stayed away from talking about or questions. I basically deflected, you know, the questions or any comments, so...
MS. CONRAD: On 74 you said you didn't know that the summons was for this case?
JUROR: Correct.
MS. CONRAD: How did you feel when you realized it was?
JUROR: I was definitely in shock. I was surprised, you know, that that was the case. I mean, I've had jury duty for very small things, and just what are the chances, was my feeling. What are the chances that I was picked for this? This is a major thing. That's how I felt. I was surprised that I was part of that pool, I guess, so far away from where I live. You know, that would be my answer.
MS. CONRAD: Were you hoping you would get picked?
JUROR: You know, I have to be honest. In the beginning, no. I was hoping that I would not be picked.
MS. CONRAD: What about now?
JUROR: Now I kind of am. When I was in the first room and everybody was saying how they were going to do everything they could not to get picked, and I was kind of ashamed of most people at that point and ashamed of myself for feeling the same way. And I said, Do you know what? Somebody has to sit and do this. Somebody has to be a part of this. And so now I definitely have changed my mind as to whether I would want to be a part of this.
MS. CONRAD: And why would you want to be a part of this?
MR. WEINREB: Objection. I think we're taking this --
THE COURT: Yeah, I think so. I think we'll just leave it at that.
MS. CONRAD: Can I turn for a minute to your job. You said you would not be able to go there on the Monday through Thursday days, and you only may have some Friday days as well. So would you still get paid?
JUROR: I don't know. That's a major fear for my family, actually, what would we do. You know, those are the only conversations that I've had with my wife, you know, is what kind of financial burden would that be if my company didn't pay us -- didn't pay me, you know.
MS. CONRAD: And what is your answer to my question?
JUROR: That is certainly a concern. That is a concern.
MS. CONRAD: And would that be something that would make it be a distraction to you?
JUROR: I would say at a point if my -- if my family was suffering in any way, you know, couldn't pay the mortgage or -- you know, I have a child at home, I'm sure it would affect me.
MS. CONRAD: And do you have personal childcare responsibilities?
JUROR: I have my son on Thursdays, if that's what you mean. My son lives with me. I take care of him every morning. I drop him off at daycare every day because I start later than my wife, I bring him to my mom's house, my mother-in-laws's house.
MS. CONRAD: I didn't mean to get into those details, I was just wondering whether you being here, especially so far away from home, would be -- would create any difficulties in terms of childcare since your child is so young.
MR. WEINREB: Objection, your Honor. I think we can take him at his word about whether it would be a hardship or not.
THE COURT: Yeah. Yeah. Yeah.
MS. CONRAD: You said that -- it sounds like you've given a lot of thought to -- well, at least more thought, I should say, to the death penalty questions since you were last here, and I think you said something like -- please correct me if I've got this wrong -- but that you could see it being appropriate for a heinous crime. Is that more or less what you said?
JUROR: Correct. That's what I said, yeah.
MS. CONRAD: And if the crime were heinous, would that be the end of it for you?
MR. WEINREB: Objection.
MR. MELLIN: Objection.
THE COURT: Yeah, sustained.
MS. CONRAD: There was some discussion about instructions and whether the death penalty is more severe or less severe than life and so forth. And first of all, I just want to make clear that the instructions that you'll get in this case will not tell you --
MR. WEINREB: Objection, your Honor. That's not a question. That's to pre-instruct.
MS. CONRAD: You know, Mr. Weinreb went on at some length to --
THE COURT: Go ahead.
MS. CONRAD: Thank you. I'm just trying to clear up a misunderstanding.
THE COURT: Yup.
MS. CONRAD: Thank you.
You -- it's not like there's a checklist, it's really -- it would be your own personal decision. And would you be able to consider things about the defendant's personal background such as, you know, if he had a difficult childhood or his age or other personal factors in addition to what you thought of the crime in deciding whether or not for you personally the death penalty was an appropriate sentence to vote for?
JUROR: I'm not sure exactly what you mean. In making that decision would I consider...
MS. CONRAD: Things about the defendant or just --
THE COURT: Well, I think it should properly be phrased consistent with my earlier instructions that if he heard -- if there was evidence about those things, that would come into the rubric of what I described as mitigating factors. Remember I told you that in a penalty phase after a person has been convicted of an intentional murder both sides get to present additional evidence that bear on the appropriateness of the punishment options, and the government would presumably present evidence that if they're arguing for the death penalty, to try to show this was the kind of aggravated offense that should qualify for the death penalty; on the other hand, the defense would be likely to present evidence of things that might mitigate against the death penalty and argue instead for life imprisonment.
So I think it has to be put in the context of -- some examples that Ms. Conrad gave, age, background, so on and so forth, could be conceivably mitigating factors which would be part of the mix that you would consider.
MS. CONRAD: But my question is: Would you only focus on the nature of the crime or would you be -- would you consider things about the defendant?
JUROR: I believe before I made that decision I would consider everything. I would consider every -- every detail of the case to make my decision.
MS. CONRAD: Okay. Just to be totally clear --
JUROR: Yes.
MS. CONRAD: -- when you say "detail of the case" --
THE COURT: Well, you know --
MR. WEINREB: Objection.
THE COURT: -- let me interject here.
As a practical matter, the jurors will have a verdict form which will present for their consideration aggravating factors and mitigating factors. It's almost necessary in completing the form that mitigating factors would be considered to some degree. So the question kind of asks -- outside that framework may be misleading. I mean, the juror doesn't know how factors are going to be presented for consideration. I think it's a little unfair to try to get an uneducated answer to it.
MS. CONRAD: Well, what my question, then, is: If you and the rest of the jury had found the defendant guilty of a crime that you considered to be heinous, would you automatically --
MR. MELLIN: Objection again, your Honor.
THE COURT: Yeah. I think we'll leave it where it is. I think -- I understand your point, but I don't think it's getting at it the right way.
MS. CONRAD: Thank you very much.
JUROR: You're welcome. Thank you.
THE COURT: All right. Thank you, sir. Just leave the questionnaire there.
JUROR: Thank you.
(The juror is excused.)
THE COURT: So we'll break for now and resume in sidebar mode. How long do you think?
MR. WEINREB: I think four o'clock would be fine.
THE COURT: Four o'clock? Agreed? All right. We'll see you at four o'clock.
MR. WEINREB: We could meet at quarter to four.
THE COURT: Quarter to four?
MR. WEINREB: Or even ten minutes, frankly.
THE COURT: Why don't we say quarter to four.
(The Court exits the courtroom and there is a recess in the proceedings at 3:26 p.m.)
(The Court entered the room at 4:05 p.m.)