US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

RACISM OF JURIST..{CHAMBERS}

The Court is in recess until 9:00 o'clock tomorrow morning.
 (Whereupon, the following proceedings were had in the Judge's chambers, the Defendant being present in person:)
 THE COURT:  There are three persons -- I think most of you are aware of why we're here. There are three persons who have alleged that one of the jurors in this case prior to {271} being selected as a juror made a statement in their presence that she was prejudice against Indians and so I've asked those three persons to be brought in and it is my intention to question them about it.
 You may have them brought in.
 MR. HULTMAN:  Your Honor, could I make a request of the Court, Your Honor?
 THE COURT:  Yes. Just a moment.
 MR. HULTMAN:  Your Honor, as is normally the case and as I indicated, we had an experience of this kind before and I would make a request to the Court that the Court interview each of these three individuals, not singularly but not in the presence of each other because on a previous experience we found that the observations as happens in the courtroom, likewise when you set three people down in a group you get a group discussion but when you get three individuals individually you get what they heard without two others then having heard what one of them said.
 MR. TAIKEFF:  We have no objection, Your Honor.
 MR. HULTMAN:  So I would request of the Court that the Court deal with them individually.
 THE COURT:  Well, okay. Bring in, it looks like Margaret Foss.
 MR. TAIKEFF:  Would Your Honor among the questions being asked include the question what relationship if any this {272} person has to the courthouse or any of the participants.
 MR. HULTMAN:  And also we would make a request, Your Honor, that if it would be Your Honor's wish, that you pursue the chain. We think that it is very important.
 THE COURT:  Pursue what?
 MR. HULTMAN:  The chain of individuals, Your Honor, on how this came about that, the event itself plus who overheard and then how does it end up being brought to the Court's attention, whether or not there has been any communication of any kind that may have in any way contributed to this act.
 MR. TAIKEFF:  We concur, Your Honor.
 MR. HULTMAN:  It's a very unusual act. That's what I'm attempting to go beyond, whether it was an act that had no influence or not.
 THE COURT:  Have a chair. Are you Margaret Foss?
 MARGARET FOSS:  Yes, sir.
 THE COURT:  The people in the room here are lawyers and the defendant in this lawsuit and other persons connected with the case.
 Patricia O'Day called the Clerk of this court this morning and gave the Clerk a message and I ask that she reduce it to a sworn statement and she did do that and I have the statement in my hands.
 And what she has said is that one of the jurors, Shirley Klocke, in the presence of her and you and one other {273} made a statement with reference to her possible jury, her possible, the possibility of her being selected on this jury.
 Do you recall that that happened?
 MARGARET FOSS:  Yes, sir.
 THE COURT:  And where did it happen?
 MARGARET FOSS:  In the cafeteria of Blue Cross-Blue Shield.
 THE COURT:  And when did it happen?
 MARGARET FOSS:  The day I'm not sure. It was in the afternoon, coffee break.
 THE COURT:  Who was present?
 MARGARET FOSS:  Patty O'Day, Shirley Klocke, Carol Schatzke and myself.
 THE COURT:  What was said by Miss Klocke?
 MARGARET FOSS:  At the time she said that she was very prejudice against Indians.
 THE COURT:  What caused her to say that? I mean, what led up to her saying that?
 MARGARET FOSS:  That I don't remember.
 THE COURT:  What were you talking about at the time?
 MARGARET FOSS:  It was just general things at the time.
 THE COURT:  Do you remember any other part of the conversation?
 MARGARET FOSS:  Just that and that she didn't, and {274} Patty O'Day started defending them, the minority and Shirley said that she didn't want to talk about it. "Let's just drop the subject."
 THE COURT:  Who opened the subject?
 MARGARET FOSS:  As far as I remember if was Shirley.
 THE COURT:  And you don't remember what you were talking about when it was opened?
 MARGARET FOSS: No. Because at our coffee breaks we, everybody in general and --
 THE COURT:  How do you happen to remember that she made this comment that she was prejudice?
 MARGARET FOSS:  Because I was shocked at the time that she said it.
 THE COURT:  Did Carol Schatzke say anything?
 MARGARET FOSS:  Yes, sir. I believe she did.
 THE COURT:  What did she say?
 MARGARET FOSS:  That I don't remember either.
 THE COURT:  Did Patty O'day say anything?
 MARGARET FOSS:  Yes. She was the one that did the most talking.
 THE COURT:  And what did she say?
 MARGARET FOSS:  Well, to the effect that there are good and bad in all nationalities and why should be pick on this one particular person or --
 THE COURT:  You don't remember who initiated the {275} conversation or do you remember who initiated the conversation?
 MARGARET FOSS:  No, sir, I do not.
 THE COURT:  I got the impression that you did not.
 Was there any other conversation among this group?
 MARGARET FOSS:  Not on this particular subject; no.
 THE COURT:  On this subject at this time or any other particular time?
 MARGARET FOSS:  No.
 THE COURT:  Not to your recollection?
 MARGARET FOSS:  No.
 THE COURT:  Do you work with Miss Klocke?
 MARGARET FOSS:  I work with them but I am not socially involved with them so whatever is said after work I do not know.
 THE COURT:  Mr. Hultman, do you have anything else you want to ask this lady?
 MR. HULTMAN:  Are you saying that this is the only part that you recall of the conversation concerning this matter or are you saying this is all that was said concerning this matter?
 MARGARET FOSS:  At coffee break this is about all that was said.
 Like I say, I am not socially involved with these people. What is said after --
 MR. HULTMAN:  What do you mean by the response that "I am not socially involved with these people"?
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 MARGARET FOSS:  Because of our age differences, these other people and myself, I do not chum around with them let's say.
 I am workers with them.
 MR. HULTMAN:  Did you feel it was something at that time that was just a matter of conversation?
 MARGARET FOSS:  No. She was very strongly, she was very emphatic on her statement.
 MR. HULTMAN:  But you don't remember anything else about the conversation other than that one statement, is that right?
 MARGARET FOSS:  That's right.
 MR. HULTMAN:  Were you the one then, I'm asking a question, were you the one that brought the matter to the Court's attention?
 MARGARET FOSS:  No.
 THE COURT:  No. No. I wanted to question the two witnesses before I --
 MR. HULTMAN:  All right.
 Who have you had conversation with since -- what time of day approximately did this take place?
 MARGARET FOSS:  About 3:00 o'clock in the afternoon.
 MR. HULTMAN:  And approximately when was this, what day was it?
 MARGARET FOSS:  Well, it was last week. Wednesday or {277} Thursday I assume.
 I'm not sure on the date but it was in the afternoon.
 MR. HULTMAN:  Who else was present? It was in a coffee room you say?
 MARGARET FOSS:  Yes.
 MR. HULTMAN:  Who were all the people that were present?
 MARGARET FOSS:  You mean just at our particular table?
 MR. HULTMAN:  Yes. First, who was at your table?
 MARGARET FOSS:  The four that I named previously.
 MR. HULTMAN:  Were there other people in addition to the four of you that were at your table?
 MARGARET FOSS:  No. There was just the four of us.
 MR. HULTMAN:  So you were the only ones in the room, is that --
 MARGARET FOSS:  Yes. Well, not in the room.
 We have a big cafeteria. There's several employees down at this time having their coffee break.
 MR. HULTMAN:  But you don't remember who initiated the conversation in any way or any discussion about it?
 MARGARET FOSS:  No. I'm sorry, sir. No.
 MR. HULTMAN:  Who have you talked to since that afternoon around 3:00 p.m. about --
 MARGARET FOSS:  Myself?
{278}
 MR. HULTMAN:  -- this statement? Yes.
 MARGARET FOSS:  No. Nobody.
 MR. HULTMAN:  You had no further conversation with anybody about it?
 MARGARET FOSS:  No .
 MR.HULTMAN:  This is a conversation that only took place last week, is that correct, and yet I'm just trying to probe, ma'am, but it seems to me that you would remember something beyond the one statement that was said, what may have led up to the discussion or something else about it.
 MARGARET FOSS:  The only thing that I can vaguely remember, if it is correct, is that she was going to be called for jury duty. That was about the only thing.
 MR. HULTMAN:  Do you recall whether anybody asked her any questions about the fact that she was being called as a juror?
 MARGARET FOSS:  No, sir.
 MR. HULTMAN:  I have no further questions, Your Honor. Thank you.
 THE COURT:  Mr. Lowe or Mr. Taikeff, do you have any?
 MR. LOWE:  No.
 MR. TAIKEFF:  I have --
 MR. HULTMAN:  Could I have just one -- go ahead.
 MR. TAIKEFF:  I have one question.
 You said that you did not speak with anyone about this. {279} Did anyone attempt to speak with you or to otherwise contact you about this subject --
 MARGARET FOSS:  No, sir.
 MR. TAIKEFF:  -- since the time it occurred?
 MARGARET FOSS:  No.
 MR. HULTMAN:  Do you know, has there been anybody at your place of business to your knowledge at Blue Cross-Blue Shield asking questions about prospective jurors at all?
 MARGARET FOSS:  Not to my knowledge.
 MR. HULTMAN:  Did you respond in any way to the conversation?
 MARGARET FOSS:  No. I didn't because we were shocked when she said it and we just tried to kind of, I myself do not want to get involved in that because I have my own feelings.
 MR. HULTMAN:  Well, when you say you have your own feelings, what are your feelings?
 THE COURT:  I'm not, we're going too far.
 MR. HULTMAN:  All right. I just wanted to know, I wanted to know whether or not this conversation had in fact, did you in fact hear this conversation?
 MARGARET FOSS:  Yes. I did.
 THE COURT:  All right. Ralph, you may, Mrs. Foss, you may leave.
 Bring in --
 MR. LOWE:  Do you want her to stand by, Your Honor?
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 THE COURT:  Yes. Have her stand by and bring in Carol Schatzke.
 You are Carol Schatzke?
 CAROL SCHATZKE:  Yes.
 THE COURT:  The people in this room are the defendant, the lawyers and some other people connected to this case which is now being tried.
 The reason you were asked to come down here is that Patricia O'Day has made a statement concerning one of the witnesses, or one of the jurors in this case and that she states that at a coffee break apparently sometime in the latter part of last week she made a reference to Indians and apparently had something to do with her prospective service on the jury and apparently it was made in the presence of you and Margaret Foss. Do you remember such an incident?
 CAROL SCHATZKE:  Yes. I do.
 THE COURT:  Who was present?
 CAROL SCHATZKE:  It was Margaret and I and Patty and Shirley.
 THE COURT:  And what was the occasion; how did you happen to be together?
 CAROL SCHATZKE:  Oh, it was coffee time.
 THE COURT:  Who initiated the conversation related to jury or Indians or trial?
 CAROL SCHATZKE:  I can't really remember but I think {281} Shirley must have started it. Yeah. I think Shirley started it.
 THE COURT:  And what did she say?
 CAROL SCHATZKE:  I really can't remember exactly.
 Other than the fact that she disliked Indians, she really didn't like them and she was prejudice against and Patty said, "Well, why," and she said, "Well, I just don't know but I am," and that was about it.
 And then they ended the conversation. It wasn't much more to go on.
 THE COURT:  Have you heard any other conversation around -- you work for Blue Cross-Blue Shield?
 CAROL SCHATZKE:  Yes.
 THE COURT:  Have you heard any other conversation around there with reference to Miss Klocke being a juror in this case?
 CAROL SCHATZKE:  No.
 THE COURT:  Do you know of any people that came around to investigate her background or anything?
 CAROL SCHATZKE:  No.
 THE COURT:  Do you know anything other than what you've told me?
 CAROL SCHATZKE:  No.
 THE COURT:  Mr. Hultman.
 MR. HULTMAN:  Have you talked with anybody since that {282} afternoon about the event that the Court has just asked you some questions about?
 CAROL SCHATZKE:  Not until today when all this came about.
 MR. HULTMAN:  Who have you talked to today?
 CAROL SCHATZKE:  Well, Patty and Margaret and a couple of the girls at work. That's about it. It's all been in one area.
 MR. HULTMAN:  Did, what was the name of the lady, Your Honor, that was just here? I'm sorry.
 THE COURT:  Margaret Foss.
 MR. HULTMAN:  Did you talk to her today about it?
 CAROL SCHATZKE:  Yeah.
 MR. HULTMAN:  What did you talk to her today about it?
 CAROL SCHATZKE:  Oh, we've been talking about it all day at different times.
 MR. HULTMAN:  Did, do you remember how the conversation started with reference to this particular matter?
 CAROL SCHATZKE:  No. I really don't.
 MR. HULTMAN:  Do you remember what any of the other people said in the conversation at all?
 CAROL SCHATZKE:  No. I -- just that Shirley said she was prejudice and Patty said why and Shirley said she didn't really know, that she was and that was about it.
 MR. HULTMAN:  Now what was the last sentence that you {283} said? Would you repeat that? I'm sorry.
 CAROL SCHATZKE:  Oh, she said that she was and she didn't really know why she was prejudice but she just was.
 MR. HULTMAN:  She was but she really didn't know why, is that it?
 CAROL SCHATZKE:  Yeah.
 MR. HULTMAN:  Did she make any other explanation of any kind?
 CAROL SCHATZKE:  No.
 At that time she said she didn't want to talk about it any more so then we just dropped it.
 MR. HULTMAN:  When, when did this conversation, what day did this take place, do you recall?
 CAROL SCHATZKE:  I think maybe it was Thursday of last week.
 MR. HULTMAN:  And what, what was the occasion?
 CAROL SCHATZKE:  We had coffee break at work.
 MR. HULTMAN:  What time of day then:  would this have been in the morning or the afternoon?
 CAROL SCHATZKE:  I think it was morning coffee. I'm not too sure. I can't remember.
 MR. HULTMAN:  But there's no question that the four of you have discussed it today, is that right?
 CAROL SCHATZKE:  There's three of us that discussed it today.
{284}
 MR. HULTMAN:  Three of you discussed it. I'm sorry.
 Who emanated that discussion? How did that start about?
 CAROL SCHATZKE:  Well, we found out that Shirley was on the jury and then Patty got upset and said she didn't see how she could be on the jury if she was prejudiced against Indians and she made a few phone calls and we got to talking about it and she was told to write a statement.
 MR. HULTMAN:  Whom did she call? In your conversations today who did she say she called?
 CAROL SCHATZKE:  Well, she said this morning that she had talked to the Clerk. She called here and I don't know who else, she must have talked to Judge.
 THE COURT:  No. She didn't. Excuse me.
 It was reported to me that she called my chambers. My secretary referred her to the Clerk.
 MR. HULTMAN:  Beyond the Court or anything that happened as far as the courthouse, who else did she say she called or had conversations with about it?
 CAROL SCHATZKE:  She had, well, I don't know. She had the thing notarized.
 I suppose she said, she talked to one of our supervisors and one of the notary publics and that's about it.
 MR. HULTMAN:  No further questions, Your Honor,
 MR. TAIKEFF:  I believe I have only one question, Your {285} Honor.
 At the time of the coffee break when the conversation took place, either at the beginning or at the end of that conversation, or that coffee break, did you know that Miss Klocke was a prospective juror in the case?
 CAROL SCHATZKE:  No.
 MR. TAIKEFF:  I have no further questions.
 THE COURT:  Thank you.
 And would you ask Patricia O'Day to come in.
 MR. TAIKEFF:  While that's happening, Your Honor, may I ask Your Honor to take judicial notice of the fact that in today's Forum there is a front page article on the trial and at the end of the article is a list of the names and addresses of all the jurors, the last being on page 2 of the Forum.
 THE COURT:  When I see the paper I'll take judicial notice of it. Thank you.
 MR. TAIKEFF:  All right. I was speculating on the chance that Your Honor had already read the paper.
 THE COURT:  All right.
 You are Patricia O'Day?
 PATRICIA O'DAY:  Yes.
 THE COURT:  The people in this room are the defendant and lawyers and others who are connected with the trial that's going on here.
{286}
 Is that your statement?
 PATRICIA O'DAY:  Yes. It is.
 THE COURT:  Would you just tell us what led up to this conversation that you had with Miss Klocke
 PATRICIA O'DAY:  We were just discussing the trial and stuff. She was on, going to be selected, or not selected for the jury but she was in the jury process and we just talked about the trial and we talked about Indian people in general and she had made the statement that, "I am so prejudiced against Indians," and I felt that she meant it, you know. Now whether, I don't mean that maliciously or anything. Okay.
 But she just said, "I'm so prejudiced against Indians," and I said, "Well, do you understand the background for do you understand what's going on or", I just kind of felt around as far as compassion or whatever, what I felt. Okay.
 And she just said she didn't want to talk about it any more.
 So then we just left it at that. We were starting to fight.
 THE COURT:  When did this happen?
 PATRICIA O'DAY:  Last Thursday at coffee in the afternoon.
 THE COURT:  To your knowledge has there been anyone checking on her background or anything about it --
 PATRICIA O'DAY:  No.
{287}
 THE COURT:  -- with reference to her prospective jury service?
 PATRICIA O'Day:  No.
 THE COURT:  Did you have any further conversation with her?
 PATRICIA O'DAY:  No.
 THE COURT:  What do you mean in that statement when you stated that later discussion about general terms?
 PATRICIA O'DAY:  Oh, when we got back from coffee we were up in the offices and all, there was maybe five or six girls and we were all talking at one time about it, you know.
 THE COURT:  Was she in the group?
 PATRICIA O'DAY:  Yeah.
 THE COURT:  What was said there?
 PATRICIA O'DAY:  I don't remember exactly because I really wasn't listening.
 There are other girls that had heard some of the conversation. They made that known to me today, that they had heard some of the conversation, you know, that she was saying. It was obvious to everyone that her feelings towards Indian people wasn't in the best judgment as far as I was concerned and, that's the impression I got.
 THE COURT:  Are you having any problems, are there any problems between you and her at work?
{288}
 PATRICIA O'DAY:  No. I consider her one of my best friends. She probably won't be any more though.
 MR. HULTMAN:  You drew a comparison and you said your feelings or your position. What are your feelings or your position as different from hers, vis-a-vis her position?
 PATRICIA O'DAY:  My feelings?
 MR. HULTMAN:  Yes. And your discussion.
 PATRICIA O'DAY:  More of an objective point of view I think.
 I, I would rather deal with people on a one-to-one basis as people rather than race or creed.
 I believe in human rights very strongly and I don't think it matters whether a person is an Indian or a black or whatever.
 MR. HULTMAN:  Did the other, did Mrs. Foss say anything in response to what was said?
 PATRICIA O'DAY:  Did she say anything?
 MR. HULTMAN:  Yes.
 PATRICIA O'DAY:  No. We discussed it today and they agreed that, well, at that time, you know, we all generally felt that Shirley felt this way. Okay.
 But today they agreed that they felt that she had meant it when she said it, you know.
 MR. HULTMAN:  Well, did you, is it fair for me to conclude that -- what did you conclude from the statement that {289} she made?
 PATRICIA O'DAY:  That she was prejudiced against Indians, that she had a greater sense of bias towards the Indian point of view rather than the man being on trial.
 I think she -- that's the impression I got.
 MR. HULTMAN:  Would it be fair for me to conclude that you have just the opposite feeling?
 PATRICIA O'DAY:  I would say that I do but I, consciously.
 MR. TAIKEFF:  Which feeling may I ask Your Honor is Mr. Hultman inquiring about?
 MR. HULTMAN:  The reverse of the attitude that was expressed because she brought it up in her own words.
 MR. TAIKEFF:  No. Your Honor I think two attitudes have been spoken about. One of them is the consensus of the three workers. The other --
 MR. HULTMAN:  I'm referring to this woman and the woman that made the statement.
 MR. TAIKEFF:  Oh. I understand. Thank you.
 MR. HULTMAN:  Would you feel then with the feeling and the attitude that you have that you could not come into a courtroom and set aside that feeling that you've expressed on that occasion to her and be fair and impartial to someone who is not?
 PATRICIA O'DAY:  No. I'm not saying that at all.
{290}
 I'm saying that I questioned, I questioned the process because I didn't know what process, legal process you go through to select a juror and I was just wondering if her, I don't know if Shirley can separate the two. That's your judgment or that's the Judge's judgment. That's not my judgment to make.
 I'm merely stating my point of view and what I heard and I felt it was relevant. It was something that I had to say, something I had to question.
 MR. HULTMAN:  Well, that's good. That's good.
 I have no further questions.
 MR. TAIKEFF:  I have but one question.
 THE COURT:  All right.
 MR. TAIKEFF:  Did you read the Forum today?
 PATRICIA O'DAY:  No. I haven't yet.
 MR. TAIKEFF:  How did you know she was on the jury?
 PATRICIA O'DAY:  I work with her and she had to call in and tell that she was going to be gone. Word travels fast in an office.
 MR. TAIKEFF:  And what motivated you to call the Clerk? Not general principles. What immediate specific fact?
 PATRICIA O'DAY:  I felt it was unfair. I felt that, I had heard her make the statement and I didn't want there to be any question as to the credibility of any juror that I knew of as to how they were going to try that man.
 MR. TAIKEFF:  Has anyone contacted you and motivated {291} you in any way to take the action which you took?
 PATRICIA O'DAY:  No.
 MR. TAIKEFF:  I have no further questions, Your Honor.
 MR. HULTMAN:  May I just ask one more, Your Honor.
 What is your relation; how good a friend are you?
 PATRICIA O'DAY:  Very good friends.
 MR. HULTMAN:  How long approximately have you known Miss Klocke?
 PATRICIA O'DAY:  Five years, going on five years.
 MR. HULTMAN:  I have no other questions, Your Honor. Thank you.
 THE COURT:  I have just one additional question.
 In the five years that you've known her have you had any other discussion about the Indian race of people or bias or prejudice or human rights?
 PATRICIA O'DAY:  Well, in the, saying many generalities certainly. Probably there are many things that go on in society and we try to discuss them, you know, and we try to be as intelligent in some things in life as we can.
 THE COURT:  No. I mean you and Miss Klocke.
 PATRICIA O'DAY:  Oh. No. Not specifics; no.
 THE COURT:  May I have the statement. Thank you for coming.
 MR. LOWE:  Your Honor, before these three witnesses are released I would suggest that the appropriate, I would like {292} the Court to extend thanks to these ladies for coming forward. It's certainly an act of bravery for coming forth in the peer pressures in society and secondly I would think there could be some measure taken to the extent possibly to keep them from being embarrassed by this.
 THE COURT:  You may leave the room.
 Mike, would you contact whoever's going to appear in this sentencing and tell them we're going to be a little late.
 MICHAEL NELSON:  I just did.
 THE CLERK OF COURT:  Can they leave the building, Your Honor, the witnesses?
 THE COURT:  Just have them stand by for a moment. It will just be a moment.
{293}
 THE COURT:  I now have to decide what to do with reference to Miss Klocke's service on the jury. Do you desire to express yourself on that?
 MR.HULTMAN:  No, Your Honor. The government certainly knows the seriousness of a matter of this kind. I think there is a good question that goes to whether or not one single remark and the circumstances and from the point of view, and without knowing the total conversation and remarks as just made, she's evidentily shown no prejudices of any kind in any other conversations. But at the same time I want to in no way minimize the impact. So I would certainly indicate to the Court that I think the Court should give the highest consideration to the impact of what the juror has said and the government will certainly in no way resist in any way whatever the Court's decision is.
 THE COURT:  Mr. Taikeff, do you have any thoughts on that?
 MR. TAIKEFF:  If Your Honor is asking generally what we think should be done, I would have an answer, but I think Your Honor is asking whether we are specifically asking whether she should be stricken from the jury. If that's Your Honor's question, we are not able to say yes or no at this time. Then that would bring me to the answer of the other question; namely, what I think we should do.
 THE COURT:  What do you think we should do?
{294}
 MR. TAIKEFF:  I think we should have a voir dire of her after which defense will take a position on it.
 THE COURT:  I have concluded that certainly if she is released that she should be told why she's being released.
 MR. TAIKEFF:  I would have no objection to that.
 THE COURT:  I don't know what Mr. Lowe feels about that.
 MR. LOWE:  I only know the difficulty in getting people to come forward to do something like that and unless there is some purpose to be gained in the trial, if the decision is made eventually to release her, I wonder whether there is really any need to release her. Didn't we last summer with that woman, did the Court tell her why or was there just --
 MR. HULTMAN:  He brought her in and questioned her, remember, John.
 MR. LOWE:  I have real apprehensions when those three people are going to be on the spot but I don't take a firm position.
 MR. CROOKS:  Your Honor, if I could make an observation. This is a rather perplexing thing, obviously. If in fact what this woman has said is true and if in fact that is an opinion, then she has at the very least placed her responsibility on the question and creates a serious problem and my suggestion would be that whether she's going to be {295} released or not, the matter should be taken up with her. If for no other reason than fairness to her.
 THE COURT:  I feel that.
 MR. CROOKS:  Because certainly this is on the face of it a very devastating type of thing to have to go on without an opportunity of some sort to explain.
 MR. SIKMA:  Your Honor, it's possible she may not even remember the conversation.
 THE COURT:  There's no question about it. I'm going to bring her in and -- is she still here?
 THE CLERK:  I asked the marshal to retain the jury.
 MR. TAIKEFF:  Your Honor, while that's happening, I would like not just by way of making small conversation but because I recognized that we take a small legal position at the early stages of this case to most respectfully call to Your Honor's attention how difficult it is to root out this kind of fact of life in spite of the fact that Your Honor spent a most generous portion of the Court's time in a thorough voir dire and allowed Counsel to inquire. I say this not so much by way of making a record, I'm motivated primarily by the opportunity to perhaps plant the seed in Your Honor's mind for future cases where some attorney may come forward and suggest to Your Honor that although there are some and many very fine citizens in the city, there are some serious problems along these lines.
{296}
 THE COURT:  Mrs. Klocke, we asked you to come in to show you this statement.
 Do you care to make any response to that?
 MRS. KLOCKE:  Yes. Your Honor, I did say this. And like I said in court that I would put all prejudices aside and I would render a fair verdict and I still mean that, too.
 THE COURT:  Okay. Thank you.
 Do you have any questions?
 MR. TAIKEFF:  Could I confer with Mr. Lowe and the defendant for a moment.
 THE COURT:  Yes.
 MR. TAIKEFF:  I would like to put a limited number of questions to the juror, Your Honor.
 THE COURT:  You may.
 MR. TAIKEFF:  Do you understand that you will have to make a very serious, conscious effort to make sure that the opinion which you have and expressed does in any way come to play in this case because of the seriousness of the consequences?
 MRS. KLOCKE:  Yes, I do.
 MR. TAIKEFF:  We're satisfied, Your Honor.
 THE COURT:  Mr. Hultman. Do you desire to examine?
 MR. HULTMAN:  Yes, I would just like to have a few questions, Your Honor.
 Mrs. Klocke, were you expressing something on that occasion which was a feeling that you had and is a feeling that, {297} as you expressed in the court, that without any question you could set aside, as I think I asked a number of questions about it, all having various feelings and emotions and so forth in varying degrees, that that expression that you made at that time is not so deep rooted or so strong or so firm with you that in a matter of this kind that you could honestly and fairly --
 MRS. KLOCKE:  Yes, sir.
 MR. HULTMAN:  -- do what the Court has discussed and the lawyers have discussed?
 MRS. KLOCKE:  Yes, sir.
 MR. HULTMAN:  Without the fact that the experience now that you in effect, somebody said something and returned it here, would that in any way have any impact now on you in going back to the jury room?
 MRS. KLOCKE:  No.
 MR. HULTMAN:  Would you now, feeling that you might have some compunction to do something for the defendant that otherwise maybe had this occasion not occurred that you would be feeling different about?
 MRS. KLOCKE:  No, I don't. I would still base any verdict on the evidence and the court alone and I really feel I could do it.
 MR. HULTMAN:  I have no further questions.
 THE COURT:  Thank you for coming in. I will have to {298} make a decision as to what your status will be and for the time being you can return to the jury and I would suggest you just not comment on it.
 The jury may now be taken back to their rooms.
 MR. TAIKEFF:  Your Honor, so that the record is clear, when we said we're satisfied, we not only meant with the scope of the inquiry but we do not wish to move to exclude the juror.
 THE COURT:  I interpreted your remark that way. I have some conern in my own mind about this juror.
 MR. CROOKS:  Your Honor, could the government have overnight to fully make a response? I think it was pointed out with Mr. Hultman, this experience of coming in here may have adverse consequences to the United States and we are not really prepared to say whether or not we might not at this point want to challenge the juror.
 MR. HULTMAN:  She now may feel an obligation, Your Honor, in order to purge herself from what others have now accused her of, this would be her genuinely and honestly, I'm just saying the impact of genuinely trying to purge herself and this experience and the accusation would have an impact upon what her decision would be.
 MR. LOWE:  May I make two comments. First of all, it is interesting to hear Mr. Hultman make that argument because he was making the other argument when we uncovered prejudiced, and although it would interfere -- but secondly, we had a {299} potential problem, in any case, where we only have two alternates that we could end up with a mistrial if more than two people become disabled or sick or anything of that nature. That is one of the facts that the defendant at this early stage of what will be a long trial is considering. And we feel he has a constitutional right not to have that juror removed without his motion in a situation that could lead to a constitutional detriment. We're not just waiving the fact, we're objecting to people with prejudiced during the voir dire and now we say we want to keep the juror. There are different factors that play.
 THE COURT:  I'm aware of that. That is why I said I wanted to think about it overnight.
 MR. CROOKS:  I realize, obviously, there are considerations on both sides. A normal reaction from strictly the government wishes of a to win position would be this is a great juror, but obviously that's not our concern. Our concern is a fair juror and contrary to what Mr. Lowe may believe. Secondly, as we expressed the possible rebound affect which would in effect affect our outcome and have just a reverse consequence. I simply ask we be allowed to think about it overnight.
 THE COURT:  I suppose if I think about it overnight you will have an opportunity to think about it overnight.
 Thank you for coming in.