Last week, lawyers for the defense and the prosecution in the trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev started whittling a jury pool of 1,300 down to 18 men and women: 12 jurors and six alternates. Given the amount of visual evidence and witness testimony about Tsarnaev’s involvement in the bombing — and perhaps reminded of the human toll of terrorism after the bloody attack on a French satirical newspaper — the jury is very likely to convict him. But the bigger question jurors will decide is whether he should die.
Jury selection matters. “Once you step into the courtroom, before a jury, you have no idea what can happen,” as one former terrorism prosecutor told me recently. In theory, defendants are considered innocent until proven guilty. But in this country, it is hard for a jury to be fair-minded about terrorism charges, let alone a bombing that resulted in deaths and dismemberment. In recent years, jihadist terrorism defendants — those thought to have acted in the name of Islamic fundamentalism — have been convicted in nearly all cases. And in the few cases involving people accused of carrying out lethal terrorist attacks, the conviction rate is 100 percent.
Under the Sixth Amendment, Tsarnaev has the right to be judged by a jury of his peers. And as U.S. District Judge George O’Toole Jr. has underscored, it must be an impartial jury. In theory, with such a large pool of potential jurors, the lawyers will have a wide spectrum of age, gender, ethnicity, socioeconomic status, religious affiliation and political persuasion to choose from. Already, everyone in the pool has filled out a questionnaire — sealed as of this writing — that can guide lawyers as they choose their jury.
The defense will probably try to identify individuals who might sympathize with the 21-year-old defendant. Tsarnaev’s lawyers will perhaps look for jurors who can focus not on his actions but on his predicament. They will want to cast him as a young man unduly influenced by an older brother with a history of violence who instigated the terror attack.
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Teachers and social workers might be selected with the expectation that they will have compassion for the problems of youth. Women and minorities might be chosen, as scholars often deem them to be more empathetic to people who have wrestled with the criminal-justice system.
Some experts maintain that jury selection should consider personal factors above others. In this case, defense lawyers might try to seek out those who have been victims of psychological manipulation, parents of troubled youth and young people who might relate personally to Tsarnaev. Above all, the defense is looking for potential jurors with independence of mind — those who are willing to question conventional wisdom and might resist a group’s dominant opinion. They are looking for people who may be open to acquitting someone based on the facts presented in court rather than news headlines.
A terrorism trial in New York in 2010 suggests that, even in an emotionally charged area in the shadow of the World Trade Center, a jury can genuinely consider the defense’s arguments. Ahmed Khalfan Ghailani was charged with 284 counts in the 1998 bombings of two U.S. Embassies in East Africa that resulted in 224 deaths. A New York jury acquitted him on all charges, except for one count of conspiracy.
The state of Massachusetts, along with most of the Northeast, is decidedly against the death penalty. In 1770, John Adams successfully argued before a jury that the perpetrators of the Boston Massacre did not deserve the death penalty. In 1984, Massachusetts outlawed the death penalty for state crimes, and the last state execution was in 1947. (In federal court, a jury found for death in the 2003 murder trial of Gary Lee Sampson, but the sentence was overturned, and a new sentence is pending.)
So it may be harder than expected for jurors in Boston to hand down the death penalty, even in a terrorism case, even in their back yard. A 2013 Boston Globe poll found that 57 percent of respondents thought Tsarnaev should get life without parole, 33 percent said he should get the death penalty and 10 percent were unsure. All potential jurors, in the jury questionnaire, are asked whether they would be willing to consider the death penalty. Those who say no are automatically disqualified. Even a juror who claimed openness to the death penalty could waver in the face of evidence about any misfortunes in Tsarnaev’s life that may have led him to commit this crime. Tsarnaev’s youth might be further cause for sympathy.
The death penalty has proved elusive in terrorism cases. In the federal court in Alexandria, Virginia — which regularly considers national security crimes, ranging from espionage to government leaks to terrorist attacks — a jury voted against imposing the death penalty in a high-profile terrorism case in 2006. Zacarias Moussaoui, the only person tried in the United States for ties to the Sept. 11, 2001, conspiracy, was transferred from New York to Virginia for his trial, in part because of Virginia’s predilection for the death penalty. Moussaoui pleaded guilty, which meant that most of the trial was spent on deciding whether to give him the death penalty.
Even then, the jury did not vote for it, and testimony about the abuse Moussaoui suffered as a child seemed to play a role. Nine jurors polled after the decision said that the instability and violence of his home life was an important factor in their decision, more so than any other. In fact, with the main 9/11 conspirators still held at Guantánamo Bay, not a single convicted al-Qaida terrorist has received the death penalty in federal court.
It could be extremely difficult for a jury to give the death penalty to Tsarnaev. But his case is unique: It involves the first lethal jihadist terrorism attack conducted on U.S. soil since 9/11. The thirst for vengeance may trump America’s more restrained — and humane — sense of justice.
Karen J. Greenberg, the author of “The Least Worst Place: Guantanamo’s First 100 Days,” is the director of Fordham University Law School’s Center on National Security.
The Washington Post