The long-awaited Boston Marathon trial in the Federal Court of the District of Massachusetts has been further delayed, but not only due to the blizzard. Concerns over the composition of the jury pool in the capital punishment case have also led to a reduction in the efficiency of the trial process. The difficulties to find a suitable jury in this high profile case underline the problems often associated with federal court juror selection and the eventual jury composition when trying capital punishment cases.
It is critical to remember that Dzhokhar Tsarnaev is facing charges brought forth by a Federal Prosecutor and will therefore be tried in the Federal Court System in the District of Massachusetts. The Federal Court Systems, composed of 94 court districts, and State Court Systems are geographically overlapping, however, they are directed by separate constitutions, the U.S. Constitution for Federal and the individual State Constitution for State Courts.[1]
Within the Federal Court System, the judge is typically responsible for interviewing potential jurors rather than the attorneys of the case.[2] In Tsarnaev’s case, the judge received a reduced number of potential jurors for direct interviews, as potential jurors were first required to complete a questionnaire.[3] As a means of further rooting out jurors, both the prosecution and the defense teams may submit questions ahead of the judge’s interviews. Prosecutors and Defense can further their influence on the jury composition through the use of peremptory challenges and challenges of cause. Peremptory challenges allow an attorney to dismiss a potential juror without explanation, while challenges of cause allow attorneys to challenge the potential juror members for a specific reason, such as a strongly held belief, a bias, or extensive knowledge of the case.[4] In a federal death penalty case, both lawyers receive 20 peremptory challenges and an unlimited number of challenges of cause. Ultimately the judge and the lawyers of the case will settle on a jury of 12 peers with a range of two to six alternates. All members of jury, including the alternates, must be members of the district where the case is being tried.
There are multiple factors which can impact the selection of potential jurors and external factors can often play an important role in the ability of the jury to remain fully impartial while listening to the facts of the case. Important factors to consider when studying juror composition in a death penalty case include the location of the trial, the diversity of the jurors, and the level of publicity the case receives. These three factors will be analyzed through the study of the search for jurors in the Boston Marathon bombing.
The location of the Tsarnaev trial provides difficulties for both the prosecution and the defense. First, federal prosecutors will be searching for a death penalty conviction in a state which does not have a strong history of the death penalty. While Massachusetts has not allowed for capital punishment in its State court system since 1984 (when it was found unconstitutional by the State legislature), Tsarnaev is being tried in the Federal Court System. Jurors from a state where the local governing body has determined capital punishment to be unjust are likely to have underlying and subconscious aversions to the use of the death penalty against the defendant.[5] On the flip side, the location of the trial in Boston could also harm the defense. According to the questionnaires filled out by the potential jurors, nearly 68% already believe Tsarnaev is guilty.[6] The jury of peers will consist of Massachusetts residents who may have a connection to the defendant’s alleged actions, whether this is through residency in the area, attending the marathon, acquaintance with victims, or watching the news covering the high profile case.[7] This predetermined guilt, even if a subconscious association of the defendant with the crime, can present a much more difficult trial for the defense.
The diversity of a jury is often criticized during death penalty trials as being too like-minded. Though opinions vary between individuals, many groups are often viewed as a whole in their opinion of capital punishment.[8] As the court seeks to dismiss jurors who are either strongly for or against the death penalty, the result is a group of jurors who typically believe the death penalty is a suitable punishment in certain instances.[9]There is argument that the loss of potential jurors who would be opposed to the death penalty allows for supporters to gain access to the jury and often results in a lack of representation from groups such as Women or Democrats.[10] In Tsarnaev’s case, Catholic groups were cited as being frequently rejected from the jury due to their aversion to the death penalty.[11]
Adding further to the issue of diversity, lawyers note that when all jurors believe the death penalty is justified in certain instances the jury will be easily convinced of applying the death penalty due to the fact that their government is proposing the punishment. In an interview with the Washington Post, former military lawyer and defense attorney for Khalid Sheik Mohammed, Jason Wright explained this phenomenon: “In any death penalty case the deck is stacked against you the moment you walk …The government has already notified the jury that it is seeking to kill someone. So there is a bias already built into the system.”[12]
The high-profile levels of the case can also prompt difficulties, as potential jurors try to hide strong beliefs or biases in an effort to gain a spot in a publicized trial. This can undermine both the prosecution or defense arguments, depending on which side the juror supports. A Boston Globe interview with former Federal prosecutor, George Vien, explained the difficulty this could bring to the prosecution team as “prosecutors — given the need for a unanimous verdict — have to be particularly alert for the juror who hides an aversion to the death penalty but ‘wants the celebrity of being the controversial juror.’”[13]
Juror selection remains a difficult challenge to defense and prosecution teams of capital punishment cases. The juror composition and juror selection process on these death-penalty cases have caused considerable controversy. As can be seen in the Tsarnaev trial, where the initial pool of jurors was 1,373, the practices necessary for cutting down the juror pool can be costly and time-consuming. Prosecutors and defense attorneys have attempted to rectify some of these problems faced by lawyers in capital punishment cases. For example, prosecutors may provide a specific detailing of events leading to the execution of the defendant, which will often be graphic enough for a potential juror to change his or her mind regarding their stance on capital punishment.[14]Despite these efforts, there is no easy way to uniform the juror selection process as each case possesses unique qualities that will impact the juror selection.
[1] United States Courts. Federal Judiciary, n.d. Web. 26 Jan. 2015. <http://www.uscourts.gov/FederalCourts.aspx>.
[2] "What Happens in a Federal Criminal Case." Federal Defenders of New York. Federal Defenders of New York, 2015. Web. 26 Jan. 2015. <http://federaldefendersny.org/information-for-client-and-families/understanding-my-federal-case.html>.
[3] Wen, Patricia, and Milton Valencia. "Lawyers hunt too-eager Tsarnaev jurors." Boston Globe. The Boston Globe, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.bostonglobe.com/metro/2015/01/25/lawyers-watch-for-too-eager-tsarnaev-jurors/Uzq8Xf0Vq29oLMVahcpSAO/story.html>.
[4] Legal Dictionary. LAWCOM, n.d. Web. 26 Jan. 2015. <http://dictionary.law.com/>.
[5] Seelye, Katharine Q. "Surveys Show Bias of Potential Jurors in Boston Bombing Trial." The New York Times. The New York Times, 22 Jan. 2015. Web. 26 Jan. 2015. <http://www.nytimes.com/2015/01/23/us/boston-marathon-case-surveys-tell-of-troubles-in-selection-of-a-jury.html?_r=1>.
[6] Ibid.
[7] Ibid.
[8] Lavoie, Denise. "'Death-Qualified' Juror Search Slows Marathon, Theater Cases." Associated Press. The Associated Press, 25 Jan. 2015. Web. 26 Jan. 2015. <http://hosted.ap.org/dynamic/stories/U/US_DEATH_PENALTY_JURIES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>.
[9] Ibid.
[10] Ibid.
[11] Macdonald, G. Jeffery. "Boston bombing jury excludes some Catholics." The Washington Post. The Washington Post, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.washingtonpost.com/national/religion/boston-bombing-jury-excludes-some-catholics/2015/01/26/f6ae9cde-a594-11e4-a162-121d06ca77f1_story.html>.
[12] Goldman, Adam. "As Bomb Trial Nears, Boston Braces for a Painful Recounting." The Washington Post. The Washington Post, 25 Jan. 2015. Web. 26 Jan. 2015. <http://www.washingtonpost.com/world/national-security/as-bomb-trial-nears-boston-braces-for-a-painful-recounting/2015/01/25/79fd7988-a0b9-11e4-903f-9f2faf7cd9fe_story.html>.
[13] Wen, Patricia, and Milton Valencia. "Lawyers hunt too-eager Tsarnaev jurors." Boston Globe. The Boston Globe, 26 Jan. 2015. Web. 26 Jan. 2015. <http://www.bostonglobe.com/metro/2015/01/25/lawyers-watch-for-too-eager-tsarnaev-jurors/Uzq8Xf0Vq29oLMVahcpSAO/story.html>.
[14] Ibid.