The 13th Juror: Death penalty past looms over Boston jury selection

Boston (CNN)Every era has its bogeyman.

In Massachusetts, they've run the gamut from Quakers to witches, pirates, anarchists and gangsters. Each high-profile execution here seemed to mirror the deepest fears of its time.
For federal prosecutors, Dzhokhar Tsarnaev is the perfect monster for the post-9/11 era. He's an accused terrorist; authorities say he downloaded al Qaeda literature on his laptop before he and his brother set off two pressure cooker bombs at the finish line of the 2013 Boston Marathon.
The 13th Juror

No cameras are allowed at the Tsarnaev trial. But CNN's Ann O'Neill will be there every day. Think of her as The 13th Juror, bringing insights here weekly. And follow @AnnoCNN on Twitter daily.

Massachusetts abolished the death penalty more than 30 years ago and last carried out a death sentence in 1947. But a place that hanged 26 people for practicing witchcraft can't deny its brutal, eye-for-an-eye past.
    Still, there's plenty of ambivalence about capital punishment in Boston's DNA, and that makes picking a jury to decide Tsarnaev's fate all the more challenging. The state might not have the death penalty, but the feds do. And they think Tsarnaev is a poster boy for capital punishment. His crimes, if he is convicted, include the murder of an 8-year-old boy -- raising the bar for heinousness and cruelty.
    Asked whether they'd be able to sentence Tsarnaev to die by injection, the answers from his potential jurors range from "absolutely" to "no way" to somewhere in between: "I'm not wicked opposed to the death penalty."
    The people with the strongest opinions -- those on the extreme ends of the juror questionnaire rating scale -- are the least likely to make the jury here. But as the past 19 days of juror quizzing has shown, there's a whole lot of middle for such a hot-button topic.
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    It's no surprise, really. A 2013 poll by the Boston Globe showed that just a third of Boston's residents favor the death penalty for Tsarnaev; two-thirds would choose life in prison as his sentence.
    It's a story that has been underscored, one by one, by those called to serve on Tsarnaev's jury. They sit at the end of a long wooden conference table, surrounded by lawyers and a jury consultant as they answer questions posed by U.S. District Court Judge George O'Toole. When he is finished, he passes the prospect off to the lawyers. We can't see their faces, but with many potential jurors, their body language says "deer in the headlights."
    When the questioning turns to the death penalty, some are certain in their answers, while others squirm and waffle and even cry.
    It has taken 19 days of juror interviews to reach this point: The court announced Friday that it expects to empanel a jury early next week. The trial itself, with opening statements and the first witnesses, is expected to begin the week of March 2.
    Massachusetts as a state hasn't executed anyone since 1947 and wiped the death penalty off its books in 1984. But its past is far more biblical. It was one of the first colonies to carry out the death penalty, hanging murderer John Billington in Plymouth in 1630. In all, Massachusetts has executed 345 people. Until 1951, first-degree murder carried a mandatory death sentence, and it's surprising to hear from Tsarnaev jury prospects who, some 60 years later, still think that is the case.
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    The death penalty is supposed to be reserved for the worst of the worst.
    Indeed, the executions in Massachusetts seem to reflect the worst fears of their times. Mary Dyer was one the so-called "Boston martyrs" hanged in 1660 under a law that banned Quakers from the Massachusetts Bay Colony. Then came the pirates and witches: 19 women were hanged in 1692 alone in the infamous Salem witch trials. Two Italian-born anarchists, Nicola Sacco and Bartolomeo Vanzetti, were executed in the electric chair in 1927 amid a huge public outcry spurred by writers, academics and celebrities of the time; many people believed them innocent.
    The last people executed here, Phillip Bellino and Edward Gerlson, were reputed gangsters -- the bogeymen of the 1940s and '50s. They were sentenced to die for the kidnapping and murder of an ex-Marine.
    The reporter who witnessed their 1947 executions in the electric chair was so shaken by the experience, he changed his position on the death penalty.
    "The body stiffened so hard he almost came out of the chair," Russ Dallaire told the Boston Herald in 1997, 50 years later. "And with each succeeding charge, the body jerked with lessening effect until there was none at all." He remembers smelling burning flesh.
    With that kind of communal backstory, it's understandable that many people here are not comfortable talking publicly about where they stand on capital punishment.
    Some potential Tsarnaev jurors say they honestly don't know what they'd do until put in the position of actually having to vote for another person's death. Jury consultant Jo-Ellan Dimitrius, the original 13th Juror, tells me that's as close to a perfect juror as anybody can come. She ought to know; she's helped pick juries in high-profile cases, such as O.J. Simpson's murder trial.
    For 19 days, a roomful of reporters have watched John and Jane Q. Public search their hearts and minds for answers. Many of the jury prospects quote the Fifth Commandment: "Thou shalt not kill." Some quote the Golden Rule, the one about doing unto others. One woman said she could probably sign off on a death sentence but she'd never send someone to prison for 40 or 50 years because she couldn't stand it herself. And then, volunteering what seemed to be a non sequitur, she said she wouldn't shave another person's head because, "I wouldn't want to shave my head."
    "All I could think of at that time was 'Holy smokes, I wouldn't want to be that guy," said an air traffic controller who, like many others, is ambivalent about whether he could vote to give someone the death penalty. "I'm saying yes, but I could wind up in an 'I'm not sure' position, based on the evidence," he said.
    A former lawyer who works for a construction company struggled, too. He pointed out that it will take three or four months to try the case, and questioned whether a death sentence would ever be carried out.
    "If you don't go through with it, it's a waste of time and money. But I also believe if you have a law, you follow it."
    He said he knows he is "not beyond the law" and could follow it. He lived in Illinois when that state put a moratorium on the death penalty and the governor commuted the sentences of everyone on death row. "I recall wondering whether this guy would be recognized down the road someday as this was the right thing to do," he said.
    The white-haired man in the striped rugby shirt likes rules he can follow. He owns a restaurant and referees baseball, basketball and soccer games as a hobby. He considers himself a fair-minded person.
    "The death penalty is there for a reason. You know it when you see it," he said.
    But the choice between life and death isn't so easy, and he's more comfortable using sports analogies: "It would be like giving a very, very stern warning -- life imprisonment -- and ejection from the game -- death penalty."
    Two death penalty cases are being tried this year in Boston's John Joseph Moakley U.S. Courthouse. The other involves the first death sentence imposed after the state banned capital punishment.
    It took 17 days to empanel a jury to decide Gary Lee Sampson's 2003 death sentence, and then it was overturned a decade later. The reason why can't be far from the minds of the lawyers and the judge as they painstakingly question each Tsarnaev prospect.
    It turns out Sampson's death sentence was tossed out because a juror lied about being a victim of domestic violence and about her daughter's drug use and criminal record.
    "Juror C's inability to remain detached is especially troubling in this case because of the similarity between her distress-inducing life experiences and the evidence presented during the penalty phase hearing," Judge Bruce M. Selya wrote for the 1st Circuit of the U.S. Court of Appeals.
    Sampson led a double life in North Carolina as a bank robber before returning to his hometown, Abington, and going on a murder spree in July 2001. He pleaded guilty to the stabbing murders of a 19-year-old college student and a 69-year-old man, He said he wanted their cars.
    His resentencing trial is scheduled to begin September 15. By then, the Tsarnaev trial should be over. But just like in Tsarnaev's trial, the judge and prosecutors in Sampson's case will be sure to take their time questioning potential jurors to make sure they don't create another cause for retrial.
    One of Tsarnaev's defense attorneys, Miriam Conrad, engaged in an intense exchange with a proud former sailor over his posts on Facebook. One included a photo of a sign with a slogan often invoked by U.S. Marines: "It's God's job to judge the terrorists. We just arrange the meeting."
    Could they be a sign of bias?
    The man, who now teaches middle school math and science, bristled at the defense attorney's questions. "I have formed the opinion that terrorists deserve the death penalty," he fired back, repeatedly addressing Conrad as "ma'am." And then he added, "I don't believe in revenge. I believe in justice."
    No cameras are allowed at the Tsarnaev trial. But CNN's Ann O'Neill will be there every day. Think of her as The 13th Juror, bringing insights here weekly. And follow @AnnoCNN on Twitter daily.