2.Juror No. 60 Retained; Standing Morgan Objection Preserved
47 linesTHE COURT: I just want to finish off a piece of business from yesterday. I've reviewed the transcript with respect to Juror No. 60 and see no reason to change my assessment made at the time when we were observing her reactions and assessing her answers in light of all circumstances, including the way she answered the questions. So I'm satisfied that she's properly included.
MR. BRUCK: If I may, before the next -- first juror comes out, I wanted to raise an issue respecting the record on Morgan qualification. As the Court has been extremely patient in hearing us out as to our position on the right to be able to pose life-qualifying questions that assume the actual charge in this case, such as weapon of mass destruction, the Court has ruled. We have attempted to pose that question, the government has objected, the Court has consistently sustained the objection and reaffirmed the ruling. And that leaves us in a position where we don't really want to go through this objection and sustaining if we can avoid it with each juror; on the other hand, we have to make our record.
So what I'm requesting is that we make a standing request for the Morgan questions, beginning with Question 7 on our third list, and including as alternatives the reformulations that we posit, 8, 9 and 10, and that that be treated as a standing request on our part on which the Court has ruled as a matter of law that we may not ask those questions; otherwise, we'll have to keep asking the question and having the objection and having the ruling.
MR. WEINREB: Your Honor, I think the motion that the defense filed is on the record, and if they want the record to reflect that the motion applies to each juror who's summoned, I don't have any argument with that. But I don't think that the record should reflect that the motion has been denied in whole or even in part with respect to each juror. That is something that remains to be seen.
And so the record will be what it is with respect to what questions were actually asked of the juror in the end, but to the extent that the request is simply that the record reflect that it's -- it applies to each juror, we have no problem with that.
THE COURT: Okay. I think that's what you were asking.
MR. BRUCK: Well, no. Yes, if it means that it applies to each juror. What we don't want to have a situation is that you've ruled as to every time we ask the question, but if we don't keep asking the question, an appellate court would say, Well, they didn't ask that juror the question.
THE COURT: No. The request is made, it hasn't been withdrawn, and it continues. And as jurors are examined, what happens with the examination can be compared against the request.
So I think it's sufficient that it's noted, and I think it's obvious anyway, that the request has been generally made and generally I've adopted a different method of examining, and if the witness isn't examined as you have requested, that will be clear from the record and the request applies.
MR. BRUCK: Well, the problem is that you have granted us, which we greatly appreciate, considerable latitude in follow-up questioning. And we don't want it to appear that we should have used that latitude to go back to Question 7, 8, 9 and 10 and chose not to do so. If the record can be clear that that's not what happened, we'll be okay.
THE COURT: I was with you until -- I didn't quite get the "not what happened." But I think it is clear that you want that done on any witness to whom it may apply where there's a Morgan issue, if we could call it that, and the examination will stand against it. And the appellate court, I think, will see the issue and the context from the record. I don't -- so you don't have to -- as far as I'm concerned --
MR. BRUCK: Yes.
THE COURT: -- you don't have to renew it.
I understand that it applies consistently when there's a Morgan issue.
MR. BRUCK: And when you say we don't -- I'm sorry.
THE COURT: And we'll proceed the way we have been because of the attitude I've taken towards that line of questioning. I can't speak for the appellate court.
MR. BRUCK: I understand. But just -- it's amazing what is clear at trial and becomes an issue of contention later. When the Court says we don't have to renew it, do you mean that to be we don't have to pose the question to the juror?
THE COURT: Yes.
MR. BRUCK: Very well.
MS. CONRAD: So just so I understand so the record is clear for purposes of appeal, we have a continuing objection to those questions not being asked by your Honor and to us not --
THE COURT: In this form.
MS. CONRAD: -- being permitted to ask the question in that form.
THE COURT: Fair enough.
MS. CONRAD: Just so we don't have to keep asking the question, have an objection, have it sustained and take more time --
THE COURT: Yes.
MS. CONRAD: Thank you.
I don't know if Mr. Bruck had something else. I had something about a juror we've already seen and also one who's coming up.
Did you have something, Ms. Clarke, first?
MS. CLARKE: I do on Juror No. -- the first juror, but I thought I'd wait until we got there.
THE COURT: Okay. So we're ready for --
MS. CLARKE: We do have something on the first juror, your Honor.
THE COURT: Wait. Before the juror comes in --
MS. CLARKE: There's a Question 40 issue.
THE COURT: Okay. Well, actually, let's deal with any other Question 40 issues. Are there others in this group?
MS. CONRAD: There's a similar-type issue but it's not a Question 40 issue.
MR. WEINREB: Your Honor, I've been asked to hand this up as well from Ms. Conrad.
THE COURT: Okay. Let me just get where I am now.
(Pause.)
THE COURT: What's this?
MS. CONRAD: It's Juror No. 140, your Honor.
MR. WEINREB: It looks like what I just handed to you, your Honor.
MS. CONRAD: I think it's the same thing. It came in both directions.
THE COURT: All right.
(Pause.)
THE COURT: Okay. So I haven't looked at this yet because -- is this a separate issue or is this related to --
MS. CONRAD: This is on Juror No. 140, your Honor, the Twitter pages, and she -- I believe it's her.
THE COURT: 140? Wait a minute. Well, there two different things coming up. We're dealing with a Question 40 issue and this is not a Question 40 issue.
MS. CONRAD: It's not a Question 40 issue; it's a Question 29 and 30 issue.
THE COURT: Okay. Let's deal with Juror No. 138 and Question 40. Is there anything -- I see what I see.
MS. CONRAD: Right.
THE COURT: I guess we'll ask about it, okay?
MS. CONRAD: Yeah. I just wanted to alert the Court.
THE COURT: All right.