The search for jurors in the case of accused Boston Marathon bombing suspect Dzhokhar Tsarnaev is taking longer than expected.
Defense attorneys say it’s nearly impossible to find open-minded, unbiased jurors around Boston. They’re asking yet again for the judge to move the trial somewhere else.
From the beginning, defense attorneys have argued the entire jury pool has been poisoned by what they call “a narrative of guilt” from a “tidal wave” of media coverage. Now, Tsarnaev’s lawyers say jurors’ own comments on a court questionnaire prove widespread bias.
One potential juror wrote, “We all know he’s guilty, so quit wasting everybody’s time and string him up.” Another put down, “They should have already killed him.”
Defense attorneys say that 68 percent of the nearly 1,400 people summoned in the federal death penalty trial have already decided that Tsarnaev is guilty, and about as many say they have a personal, emotional connection to the case.
“I don’t think it’s a close call,” says David Hoose, a Boston-area defense attorney. “If this case doesn’t get moved, what one would get moved?”
Hoose, who has handled other death penalty cases, says this one has had an exceptionally broad impact. “Virtually everyone is gonna be no more than two degrees of separation from someone who was at the scene,” he says.
The explosion at the marathon finish line killed three people and injured hundreds in 2013. Personal connections to the blast run the gamut, from those who were there at the marathon, to those with friends or family who were victims, to medics or police involved in the violent shootout or dramatic capture of Tsarnaev, found hiding in a boat in a suburban backyard after a massive manhunt.
It’s unclear where the judge, U.S. District Judge George O’Toole Jr., will draw the line. One juror wrote that her personal connection was “being a 29-year-old female just like one of the victims.”
Equally challenging is who should be disqualified from the jury pool for opposing the death penalty. By law, jurors have to be open to it, and many people can easily be ruled in or out.
But it’s less clear what to do with potential jurors who tell the judge, like one woman did, that she’s categorically opposed to capital punishment — but when pressed, eventually conceded she might possibly be for it, if her own child were the victim.
“There are shades of gray, and I mean, this does get confusing and muddy,” Hoose says. “Some jurors do go back and forth.”
Defense attorneys have already unsuccessfully argued that it would be impossible to find impartial jurors in Boston, but Nancy Gertner, a former federal judge, says citing the opinions of actual potential jurors now bolsters the defense’s case.
“This is now basically arguing that those predictions are borne out,” she says. “I mean, it’s essentially saying, ‘See, we were right.’ ”
Judge O’Toole has insisted that impartial jurors can be found here, but he’s also left the door open to reconsidering.
Gertner says there’s good reason to doubt whether jurors can really set aside a personal connection to the bombing, even when they say they can.
“The notion that you can take a bad fact, a prejudicial fact, and then easily compartmentalize it so it doesn’t bleed into the rest of your view of the case — that is extraordinarily difficult,” Gertner says.
If Tsarnaev is ultimately convicted, jury selection is likely to be grounds for appeal. As defense attorneys wrote in making their case for a change of venue, when you screen out all jurors who oppose the death penalty, and all those with preexisting opinions on guilt or with personal connections, “those few who survive the winnowing … will not be representative of the community,” as the Constitution requires.