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1:00Please use discretion.

1:04What happens if I get a jury summons and I say, I'm not going. I don't want to do this. I'm busy. In North Carolina, I don't know what happens. In many jurisdictions, quite possibly nobody. Nothing will happen. In Massachusetts, we will pursue you, and we will prosecute you criminally if we can't get you to either show us that you're disqualified or get you to do your service. So, and that's very well known that we do this. That's very well known within Massachusetts. So I will get calls from frantic people saying, I was on my way to the courthouse and I got a flat tire and I didn't make it and I don't want to be arrested.

1:49You know, please don't arrest me. And we're like, calm down. You know, you're a long, long, long way from anything like that happening. So if you just miss it or if you say, I don't want to go, 10 days after you don't show up, you're going to get a failure to a peer notice. And at that point, you may be like, oh, these people aren't going away. You know, you're going to have to go in one way or another. You're not going to be able to avoid us. I'm Phoebe Judge. This is Criminal.

2:32Pamela Wood is the jury commissioner for the state of Massachusetts. I had never heard of a jury commissioner. I hadn't either until I became the jury commissioner. The jury commissioner is the head of the office that's responsible for, or primarily for creating diverse and representative summonsing lists, making sure to include everybody who might be eligible to serve, and sending out the summonses, and making sure that the right number of people show up in the right courts on the right days. I've never been called for jury duty. That's just wrong. I don't, and I'm confused by it. In Massachusetts, we surely would have found you because we have arguably the best master juror list, master source list in the country, which is that we have an annual municipal census.

3:30So every year, the 351 cities and towns submit the names and addresses, the contact information of all their residents, including college students and military and things like that. most jurisdictions use voter registration lists and driver registration lists, and they may dip into things like, you know, hunting licenses and permits that you've pulled for construction, and anywhere they can get that kind of information. So we don't use those lists because they're not inclusive. So not everybody registers to vote. Not everybody has a car. You know, people who are marginalized or low income may be more likely to be left off the list.

4:16So that's why we're very happy to have the census to create our juror lists from. And how do you determine who will get a summons for jury duty? Well, I don't. It's all random. It's computerized. And in the same way that the selection is random, what cases those who have been selected will hear is also completely random. You're not trying to match. Absolutely not. Nope. We're just sending – what our goal is to send a representative and diverse group of people to every court on the days that they need jurors. And what that means, much to some people's consternation, is you might live at one end of a very large county down the street from a courthouse, and we send you a summons saying we want you to go to jury service at the other end of the county.

5:07And it may be a long drive through rush hour traffic, and people say, why can't I just walk down the street? And the answer to that is that we want a random distribution of the population of that county to appear at every courthouse. So we don't have all, you know, farmers appearing in the rural counties and all urban dwellers appearing in the cities. So that's how they've defined a jury of your peers, is a random selection of people who live in your county. In Massachusetts, if you're called for jury duty, you'll be shown a video that explains what's expected of you. It also tells you a little bit about the history of jury duty in the state.

5:49The video notes that women couldn't serve on juries until 1950. As recently as the 1980s, whole categories of citizens were exempted from service, including legislators, parents of young children, clergy, teachers, firefighters, lawyers, and many others. As a result, juries were not necessarily very representative of the community. They'll show the video. That's the orientation video. It's required to be shown to jurors before they serve. A judge will come and greet them, and that's really up to the judge. And judges make their own greetings. They can do something about the history of juries or their own personal feelings about the jury system, which, of course, are always positive.

6:40Or it can be very sort of practical about we'll get you out of here as soon as we can. We've got a very important case today, you know, whatever they want to say. And then when they actually go to an impanelment, they'll get a lot more detail about the case they're going to sit on. What type of case is it? They'll be asked to look at the defendant or parties, plaintiff and defendant, if it's a civil case, and the attorneys to see if they know them. They'll be asked if they've heard anything about the case. They'll be read a list of witnesses and asked if they recognize any of those names. And then they'll be asked a series of questions.

7:23Do you know any of these people? Do you have any interest in the outcome of the case? Have you seen any publicity about it? And if people put up their cards and say, yes, that's me, they'll be called up to speak privately with the judge and the attorneys to hear more about why they feel that they had to answer a question affirmatively. And it may be something very simple like, oh, this is a case against, you know, IBM, and my father worked for IBM when I was a child for a couple of years. And everybody may say, well, that's fine. You know, we don't care about that. But if they say, oh, I went to high school with the plaintiff, you know, and we were best friends, then they will be excused from that case.

8:10Once a jury has been selected, the trial can begin. Jury members must remain impartial and open-minded throughout the trial. At the trial, the judge will give you detailed instructions about your duties. Here are important rules that must be followed in all cases. During the trial, you may not discuss any aspect of the case with anyone, including family, friends, or trial participants. The idea being, you know, if I go home and talk to my husband about, you know, what the police officer said about the crime, then my husband may say, well, you know, that guy must be guilty. And I might say, yeah, it sort of seems that way.

8:50I agree with you, you know. And then I come back to court the next day with that in mind, and I haven't kept an open mind. I've brought somebody else into the process. So one thing we do to check on it is just about every morning before we begin, And I will say, have you all abided by my instructions not to listen to any news broadcasts or talk to anybody about the facts of the case? They all nod. Judge George O'Toole, Jr. You know, I never know whether somebody's cheated or not, but mostly they take their work really seriously. And when we say this is really important, that you confine yourself only to what you've heard here in the courtroom and not on any private investigation you've done, any comments that other people have made, tell your family members, you just can't talk about it.

9:42And they do. They follow through on that. Judge O'Toole became a judge in 1982 and has been a federal judge since 1995. In 2015, he presided over the trial of Johar Zarnaev, one of the two brothers who placed bombs near the finish line of the Boston Marathon. Jury selection was complicated because so many people had connections to the victims or first responders. The bombs were homemade, made with pressure cookers, and went off seconds apart. Three people were killed. Crystal Campbell, 29, Lu Lingzi, 23, and Martin Richard, who was eight. More than 260 people were injured. Seventeen people lost their legs.

10:34Governor Duval Patrick described the search for Dzhokhar Zarnaev as a massive manhunt, and said, we are asking people to shelter in place. Tsarnaev was charged with 30 federal crimes, 17 of which carried the death penalty as a potential sentence, including the use of a weapon of mass destruction and conspiracy.

11:011373 prospective jurors filled out screening questionnaires. People wrote about neighbors and friends who'd been injured. Another difficulty in selecting jurors was that because some of the crimes carried the death penalty as a potential sentence, each member of the jury had to be willing to consider it. Selecting the jury took two months. The trial began in March of 2015. There was huge international press coverage of the case. And we just didn't want to have the jurors arriving individually by themselves at the courthouse and maybe having to make their way through a crowd, both of the general public and perhaps of people from media.

11:53So we arranged with the Marshal Service for the jurors all to assemble at a remote location every morning. And then a bus would bring them over. They'd come into the garage of the building and go straight up to the jury room in an elevator and not through any of the public parts of the building. And we'd reverse that in the evening. They'd go down the elevator, get on the bus, be brought back to their spot of departure first thing in the morning. So that was partly to keep them insulated from demonstrations, for example, but also just the physical anxiety of having to pass through a large number of people who are assembled at the courthouse to listen to the case.

12:45Do you remember of any of the jurors who were chosen asked to be let go when they realized what type of graphic evidence was going to be shown? So we go through a very, in this case we did go through a very extensive examination of the jurors as they were being selected. And sure, there are people who had strong views already and didn't think they could put them aside. But there are also people who really understand what the system is about and why we need people who are open-minded. And that's what we do during the selection process, what we call the voir dire. We try to get at that kind of intellectual commitment to do the job they're being asked to do.

13:33And if they say they can't do it, then we don't let them stay. You know, they can move along and maybe give another case that might not have the same pressures. We spent a long time in paneling the jury. The jurors heard testimony from 154 witnesses. So there were different categories of witnesses. So there were law enforcement people who could tell you what they did and saw. A lot of the people who had been injured in the bombing testified. Some had lost legs. Some had been injured in other ways. Some had been emotionally harmed. And, of course, there were the family members of the deceased. So their families and friends testified, and it was a very graphic testimony.

14:28Do you find yourself in cases like these at the end of the day, just kind of going back to your chambers and wanting to lie down or just be quiet for a moment? I think the latter, yes. I mean, I have a lot of experience with it, but it's not by any means that I'm indifferent to it in any way. So yeah, it's very emotional. But it's my job to keep it under control. Four days after the bombings, Johar Zarnaev and his brother, Tamerlan Zarnaev, were found in Watertown, Massachusetts. They threw pipe bombs and shot at the police, and the police shot back. According to the police, Tamerlan started coming towards them while firing his gun, and after he ran out of ammunition, officers tackled him.

15:26Johar got into a stolen SUV and drove toward the police officers Hitting his brother in the process Tamerlan Tsarnaev was pronounced dead about an hour later Johar Tsarnaev drove away He then escaped and it was gone for quite a while And at some point a homeowner in Watertown and went out to his backyard where he had a boat, and it had canvas covering it to protect the interior of the boat from getting rained on and so on. And there was something odd about it, so he notified the police, and they came in, and the defendant was actually hiding in the boat. But there had also been, and I'm not quite clear as I think back on it, the precise sequence, but there was a fusillade of bullets fired at the boat.

16:21And I think it was the defense strategy, perhaps to encourage some sympathy for the defendant, that law enforcement overdid the armed assault on the boat. So they wanted the boat to be brought in so the jurors could see the number of bullet holes in the boat and the blood that was inside. So I think it was something the defense wanted the jurors to understand how he had been apprehended and what that might mean. And so we made arrangements for an open space, a warehouse in South Boston that was not far from the courthouse. We had the boat towed down and brought into that warehouse. And the jurors were brought down by bus on one day and were able to walk around the boat and ask.

17:13They didn't ask any questions, but they could sort of interrogate the boat. by looking at it closely. And then we went back to the courthouse and resumed the trial in the courtroom. Judge O'Toole says that over the course of the trial, he kept a close eye on the jury, trying to take what he called their emotional temperature. They were shown photographs that the rest of the courtroom didn't see. The worst thing was autopsy pictures. So you have a young boy whose body was really torn apart. But it was part of the government's case to put that into evidence. We kept it very minimal so that it was not extended at all, but just it's...

18:04The jury really had an obligation to understand the horror of the events. When the state's chief medical examiner described how the eight-year-old victim, Martin Richard, died, a reporter for the New York Times wrote that some members of the jury hung their heads in their hands. At least three were crying. Two or three looked as if they were staring into the abyss.

18:37Do you sometimes, do you ever think to yourself, well, I wish they didn't have to see, You know, just as another human being, kind of look down at the jury and think, well, this is a lot for the day. These jurors have really been through the ringer today. Yes, yes.

19:02Do you think that there's a way to get the message across, get the full picture in front of jurors in cases like these without having to show them these, you know, kind of horrendous images? Is it possible? Well, I don't know. I mean, if you ask the prosecutors, they would tell you that they have to do this because you can't understand how horrible things were if you didn't see the actual one. Because most people don't extend their imagination in that direction. And so it takes having to see something you don't want to see to understand how bad it was. I can think of, for example, to switch to a different case.

19:52I remember trying a child pornography case, and the images were awful. And we had a rule that the lawyers, this would be the prosecution, essentially, could display the images. But of course it was the images that were, in a sense, on trial with the defendant. They could display it to the jury for five seconds, and that's all. So we would take measures like that to try to mitigate the unpleasantness, if not the disgust that jurors might have. But it would be necessary for them to understand what exactly was at stake in the case.

20:33The Boston Marathon bombing trial was five weeks long. The jury found Johar Zarnaev guilty on all 30 counts. Then the jurors began what's called the penalty phase to determine whether or not he would be executed. That lasted for four weeks, and the jury voted for the death penalty. Some of the victim's family members had told the press that they didn't want Tsarnaev to get the death penalty, and after it was all over, one juror spoke publicly saying, If I had known that, I probably would change my vote. He said, I've never had to make a decision like that in my life, choosing between somebody getting the death penalty and somebody getting life in prison, and I hope I never have to do something like that again.

21:28My mind still goes back every now and then. It's not something that I'll ever forget.

21:41At the end of the trial, you entered an order to extend the term of service for the jurors and the alternate jurors by 90 days. Why? Because of the emotional impact of the evidence they'd seen and because we expected that when they no longer had each other, the jurors, they might be home by themselves and might have memories of awful images that they've had and so on. And so we wanted to allow those people who thought it would be helpful to them to have some counseling about how to handle their emotions and their memories. and so that was the purpose of the order.

22:32We'll be right back.

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24:15The very, very first homicide case I had when I was a judge was a 10-day case. It involved a man who put a hit out on a woman, a 19-year-old, and when no one else could find her, he finally found her. He shot her a couple of times, and then he executed her. The testimony was graphic. The photos were graphic. This was a young woman. As the trial was going on, I could see my jurors become more and more distressed every day. Wisconsin Supreme Court Justice Jill Karofsky. Before she joined the Supreme Court, she was the state's first violence against women resource prosecutor, and then a circuit court judge.

25:04When we bring jurors in and they are asked to sit in a case, this is what we instruct them. You may not talk about the facts of this case with anyone, not even your fellow jurors, until it is time to deliberate. So we're telling them that they need to look at graphic photos. They need to hear graphic testimony. They need to listen to graphic 911 calls. and they can't do the two things that we know people must do in order to work through trauma and that is one process it usually by talking about it some people can you know or write about it or process it however and through relationships with other people but we have closed those avenues so what we ask jurors to do is to just absorb all this trauma and just to keep on absorbing it and not process it with anyone.

26:02Just hold it in and hold it in and hold it in. And I could watch my jury in this case struggling. And I kept talking to my colleagues and I kept talking to the administrators around me saying, I've got a jury that I know is in distress. How can I help them? And there really wasn't anything available. The best I could do was one of my fellow judges has an elderly lab named Ursa, and she brought Ursa into the courthouse on one occasion, and I said, I'm going to ask my jurors if they'd like a visit from Ursa over lunch. And they were all for it, so I didn't go in there, but my colleague brought Ursa in, and they all got to love up a dog over lunch.

26:52That was the best I could do. And the thing I was most afraid of happening happened, and that is that my jury deliberated late on a Friday afternoon into a Friday evening. They came back with the verdict Friday night, and I sent them out into the dark all by themselves. And I know they had to have been scared, because when I left the courthouse that night, and I took the special judge elevator down to the special judge garage where no one could get me, and I got into my car, I was still scared. And I felt terrible. Judge Karofsky contacted a friend who was a therapist, who said she'd be willing to see jurors for two free sessions.

27:42If they needed more, she'd work with them to find a way to get sessions covered by insurance. Then Judge Karofsky wrote a letter she'd give to jurors at the end of a trial. The letter describes ways they might feel afterwards. They might notice changes in their appetite or sleep. And said that if they were having a tough time, to call her or the therapist. And people reached out. And their biggest concerns were, number one, did we get it right? Number two, am I going to be in any physical danger because of the verdict that we rendered? I had one individual call me the day after one of these trials, and this guy was great.

28:28He was, I don't know, he was probably late 50s, early 60s, tall guy, big guy, and he got on the phone with me, and he said, Judge, this is the day after the trial, he said, Judge, I walked in the door after serving on your jury last night, and I burst into tears. What the hell is wrong with me?