By Caitlin Barbas
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>.
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