The trial of accused Boston Marathon bomber Dzhokhar Tsarnaev was supposed to have started three weeks ago. But now it’s anybody’s guess when this highly anticipated trial will begin.
We’re buried in snow and juror questionnaires. So far, we’ve had 15 days of juror questioning – and six snow days. It’s like “Groundhog Day” meets “The Shining.”
“You’re asking me the same question, over and over again,” a flustered juror protested on Friday. That’s the “Groundhog Day” part of our story. So far, 193 people have been asked the same questions, over and over.
The 13th Juror
The walk to the courthouse, along streets where snow is piled higher than one’s head, inspires a sense of kinship with rats searching for the cheese at the end of a maze. The blind quest becomes your everything.
U.S. District Court Judge George A. O’Toole wants the cheese.
Tsarnaev’s defense, as well as the opinion makers at the local paper of record, The Boston Globe, believe there’s no way O’Toole will be able find an unbiased jury to hear the case. People here have their minds made up about Tsarnaev’s guilt, they take the marathon bombing personally, the publicity has been overwhelming, and nobody here can agree on the death penalty – or so the arguments go.
But other factors are at play, too, including the length and likely gruesome nature of this trial, says Valerie Hans, a professor at Cornell University Law School and one of the nation’s leading experts on juries.
The bombings and manhunt, she said, also seemed to touch nearly every one of the 5 million people who live in or near Boston – or a classmate, a relative, a colleague, a friend or a friend of a friend.
O’Toole is determined to prove the naysayers wrong. He seems confident he will find 12 objective Bostonians able to judge Tsarnaev only by what they hear in court. On Friday, he gave the first indication of the progress being made: 54 jurors have been “provisionally qualified” – about one out of every four questioned. The judge is looking for a pool of 70 prospects from which to pull 12 jurors and six alternates.
The defense has asked O’Toole three times to move the trial from Boston, saying the bias against their client is so pervasive it’s impossible to find an impartial jury in Boston.
So many of the jury prospects say the same thing: Yes, I think he’s guilty. No, I’m not sure I can vote for death penalty.
Next week, the 1st U.S. Circuit Court of Appeals will consider a defense request to move the trial to another city.
The government opposes moving the trial, saying no matter where you hold it, people have heard of this case. It’s a point made in a recent article in the Columbia Journalism Review: In the digital age, is it possible to find jurors who haven’t had some media exposure in big cases of national interest?
It hasn’t been easy here. Potential jurors were handed questionnaires on January 5 and started returning in groups on the 20th, each to take a solo turn in the hot seat. Because this is a high-profile death penalty case, the judge and lawyers wanted to go deeper with the prospects to ferret out any bias.
The prospects are brought in one by one and grilled on everything from time spent on Twitter to their deepest thoughts about crime and punishment, life and death.
What was supposed to be two weeks of juror interviews has stretched into four, with at least one more week to go. Weather permitting.
Why is it taking so long? Is this the longest jury selection ever?
Nobody seems to keep track of such things, said Teresa Saint-Amour, a researcher at the Harvard law library. She couldn’t find a single database and steered me to a study of the state courts. An analyst for the organization that conducted the study said it likely was outdated.
And so, I turned to the original 13th Juror.
Jo-Ellan Dimitrius has worked as a jury consultant for 30 years. But she’s not just any jury consultant. She helped pick juries for some of the most famous – or infamous – cases of our time: the O.J. Simpson murder trial, the Rodney King police beating case, the McMartin Preschool sex abuse case.
“I think in actuality, your trial is as it should be,” she said of the Tsarnaev jury selection. “I’m not surprised it’s taking this long. I’m not surprised the death penalty questions are taking as long as they are. The death penalty is something people aren’t comfortable talking about. For some of these people, it’s the first time they’ve thought about it since they were in school.”
Massachusetts isn’t a place to be comfortable about the death penalty. The state hasn’t had capital punishment on the books in a generation. The last time anybody was executed was 1947. The death penalty simply hadn’t been on people’s radar until this case.
But United States vs. Dzhokhar A. Tsarnaev is a federal case, as O’Toole reminds his potential jurors every morning.
And in this case, there’s no way the feds could have a death penalty statute on the books and not ask jurors to use it, Dimitrius says. But the federal government isn’t exactly California. Or Texas. Or even Florida.
Federal authorities win death sentences in just one of every three cases where they seek it. There are just 61 people on the federal death row, according to Death Penalty Focus. Compare that with the 1,400-plus people sentenced to die in those three states.
And federal executions are relatively rare. Only three people have been executed under the federal death penalty since 1988: Oklahoma City bomber Timothy McVeigh, drug smuggler and killer Juan Raul Garza and Louis Jones Jr., a decorated Gulf War vet who kidnapped, raped and murdered a young Army recruit.
I catch myself wondering why in the world the defense would want to leave a place that seems to have moved beyond, as one jury prospect put it, “an eye for an eye.”
O’Toole seems to be growing impatient with Team Tsarnaev. He said he has no use for its “serial briefing” on moving the trial. And then came this judicial zinger: “The third motion to change venue has even less, not more, merit than the prior ones.”
This judge remains confident he can find a jury. Yes, it is taking longer than he expected, but the questioning of individual jurors proves to him there are people who can be impartial. He points to one juror in particular, a human resources professional who said her job had trained her to “keep her judgment suspended until she had all the necessary information.”
Most trials, even death penalty trials, wrap up jury selection in a week, two tops. Though nobody seems to keep track of things like “longest jury selection ever,” Dimitrius remembers what she thinks might well be the longest jury selection of them all.
It took nine months to find a jury to hear the capital murder case of Richard Ramirez, known as “the Night Stalker.” His spree of serial murders, rapes and home invasions terrified Los Angeles and San Francisco in the mid-1980s. He was sentenced to death for 13 murders but died of cancer in prison.
It also took months to pick juries to hear the murder trials of O.J. Simpson (1994) and Scott Peterson (2004). Simpson didn’t face the death penalty, and his jury selection lasted about three months. Peterson is on death row, and it took about four months to seat his jury.
It took 47 days to empanel a jury in Connecticut to hear one of the most horrific death penalty cases in recent memory, the so-called Cheshire murders. Two ex-cons were convicted and sentenced to death for the 2007 home invasion murders of the wife and daughters of a prominent endocrinologist.
Casey Anthony’s jury was seated in 10 days. People seemed to think she was guilty, too, but she was acquitted of committing the crimes with which she was charged. George Zimmerman’s jury was picked in a day – six women who acquitted the night watchman of charges he intentionally killed Florida teenager Trayvon Martin.
There has been talk among the lawyers in Boston of “stealth jurors,” people who give all the right answers so they can get on a jury and carry out an agenda. Like two of the jurors in this case, they seem on the level until betrayed by what they post on social media.
One juror gave straight answers, but the defense rooted out this profane tweet from the day of Tsarnaev’s capture in a boat in Watertown: “WOOOOOHOOOOOO YOU GOT TAKEN ALIVE B****!!!!! DONT F*** WITH BOSTON!!!!!”
And, in what played like a scene from a TV courtroom drama, defense attorney Miriam Conrad confronted a juror over his Facebook humor. Asked if he ever posted anything about Muslims, Juror 251, a middle-aged, working-class Joe, replied, “Probably.”
Conrad pulled out a copy of a cartoon – Calvin from the old “Calvin and Hobbes” comic strip – urinating on an ISIS flag.
“It was funny when I got it and I sent it back out,” he said. The questioning continued, became pointed. The man grew defensive.
“There’s a lot of funny stuff on there,” he protested. “I’m a funny guy. It’s Facebook.”
The defense has also been quick to flag jurors who seem too eager to serve. But for every one of those, there are probably a dozen who simply want to get out of it.
Most of the 183 people who have come before O’Toole say they think Tsarnaev, a 21-year-old former college student, is guilty. The jury prospects who grasp that the legal world is nuanced will acknowledge that they don’t yet know the specifics of the charges against him. They haven’t seen or heard the evidence. But he was there, they say. He was involved with the bombing near the finish line of the Boston Marathon.
He’s guilty of something.
Many jurors struggled with what is probably the toughest question of them all: Can you vote to give him the death penalty? What’s going on in Courtroom 9 of the John Joseph Moakley U.S. Courthouse serves as a pretty good snapshot of the state of justice in Massachusetts – and across the country.
TV shows and social media feed the notion that most people charged with crimes probably did it. But we are on the fence when it comes to the death penalty. Some quote the Ten Commandments: “Thou shalt not kill.” Others ask, what if I’m wrong?
The most honest answers seem to be, “I don’t know how I’ll feel until I’m in that position.” Those jurors, Dimitruis said, are “probably the best you’re going to get.”
We met Juror 353 on the 12th day, a Friday. I doubt he’ll make the panel, which seems perfectly fine with him.
He cut to the chase as he sat in his gray sweater at a conference table in the middle of the courtroom, surrounded by a dozen lawyers, court staffers and the judge. From the media peanut gallery, all we could see on the closed-circuit feed was the bald spot on the back of his head.
He spoke in an animated, gravelly voice. And he was Boston, through and through:
“I’m just absolutely against the death penalty. I don’t know how many thousands of rounds were shot at that boat,” he said, referring to Tsarnaev’s April 19, 2013, capture in a boat parked in a backyard in Watertown.
“You couldn’t kill him then. I’m not gonna kill him now.”
With that, 353’s questioning came to an abrupt halt. He was out the door, and within minutes, someone tweeted, “Je Suis Juror 353.”