Tsarnaev trial jury selection staggers

Defense team asks judge to relocate trial as potential jurors are probed

Day 2. Seated at one end of the long wooden table, potential juror 40 recalls the events of April 2013 in a weary voice. Facing nine attorneys, the judge, and alleged Boston Marathon bomber Dzhokhar Tsarnaev, she remarks:

“Those were a long couple days.”

The graying woman spent time in Nepal with the Peace Corps and is an activist for education and LGBTQ rights — forgiving and open-minded, she’s the kind of person the defense would want deciding their client’s guilt and, most likely, fate. The lawyers listen attentively as Judge George O’Toole probes her ability to serve on a jury, and so far she checks out. They and the many observing reporters hope that she won’t be another scratch in a long string of disappointing candidates.

But when Judge O’Toole brings up Martin Richard, the eight-year-old boy killed in the bombing, she chokes up. Through her tightening throat, she is able to go on a bit longer about her colleagues — marathon runners who could have been among the 264 casualties — and about Richard, whom she’s met. A resident of his neighborhood, she conjures up an image of his memorial and expresses surprise at her summons because she’s been “personally affected.”

O’Toole, alarmed by this spill of emotion, asks her to step out for a bit. She is not called back.

“Oh, she would have been great!” a reporter in the media viewing room sighs.

The death penalty is at stake

The process of scrutinizing potential jurors in person is called “voir dire,” and it’s often considered the most important phase of a trial. In this case, where 17 of the 30 charges against Tsarnaev could result in the death penalty, the parties have to find 18 citizens who are both impartial and “death-qualified,” meaning that they deem the death penalty and life imprisonment to both be on the table. That’s why weeks and weeks are dedicated to jury selection when the stakes are this high.

It’s O’Toole’s job to examine every potential juror’s questionnaire answers and then call them into the courtroom to explore their background and moral convictions. However, he often finds himself needing to not only question the jurors, but also handhold them through the judicial process. He has had to rehash his “innocent until proven guilty” bit and hammer into the jurors that the decision must be based on factual evidence presented in court and not on any preconceptions.

Regardless of how willing jurors may seem to set aside their opinions and hear evidence from both sides, they might have subconsciously shifted the burden of proof onto the defense — a deal breaker. It’s the government’s responsibility to fully convince the jury of the defendant’s guilt, and if they fall short, a verdict of “not guilty” is required.

Legal jargon lost on potential jurors

As elaborate as their strategies may be, as experienced in the law as they are, O’Toole and the attorneys often appear to be grasping for ways to make these points clear to laypeople.

Even some of those who claim that they could rule Tsarnaev “not guilty” if the government didn’t prove its case seem like they’re just going through the motions.

Another potential juror — a well-spoken recent college graduate who studied terrorism in the Middle East — said he would make his decision “based on the facts” and might change his mind from his existing opinion that “there’s guilt there,” hinting that he would default against the defendant. Sensing a red flag, O’Toole asked if the juror would require evidence to change his current position. The juror said yes, not even realizing that he’d violated the basic principle of presumed innocence.

The lawyers’ eyes darted around the table. “Want to keep going?” someone whispered. A subtle signal to the judge, and the potential juror was excused.

Another hope out the window.

The one thing beyond doubt is that in the eyes of many potential jurors, even those who haven’t been eliminated, the trial is already over. Many jurors sit down, bearing intense personal feelings about this case, apparently not understanding all of O’Toole’s admonishments that “the government has the burden of proof” and “we still need to determine guilt or innocence.”

One juror, a frank, aging old woman, completely threw O’Toole off when she told him bluntly that she didn’t even know “not guilty” was an option in this case and that she thought she was there to decide between life and death. The judge, flustered, continued to ask if she could vote the defendant innocent if the evidence against Tsarnaev was not convincing. Chuckling, she looked around the table and quipped, “Where’s the prosecution? You’re killing me!” And a dig at the defense: “I can’t imagine not being convinced by the evidence.”

‘Mental exercises’ have no legal meaning

One defense attorney, the white-haired, charismatic David Bruck, has been increasingly concerned about potential jurors’ preconceptions. To him, the hypothetical situations used to tease out candidates’ biases are “mental exercises, a make believe,” he said on the fifth day of voir dire. “[The jurors] can tell you anything, and be honest and truthful, but it has no legal meaning.”

Bruck has reason to be skeptical. While O’Toole and the prosecution may be satisfied by the jurors simply saying they can uphold “innocent until proven guilty,” he realizes that he’s fighting an uphill battle. At one point, he analogized the trial to asking the jury to suspend their disbelief and make the prosecution prove that pigs can’t fly.

He does his best to ferret out those jurors who are just giving the answers they think the court is looking for. In response to an abstract question from nitpicky prosecutor William Weinreb, one potential juror said mechanically that sure, he’d be able to put the burden of proof on the prosecution. But Bruck didn’t buy it. Butting in, he asked the juror if he’d be unable to let go of his lingering feelings of anger and if he’d need evidence to persuade him that Tsarnaev is not guilty. Before Weinreb could utter an objection, the juror confidently replied, “Yes.”

The defense was satisfied — number 38 wouldn’t be called back.

Even more worrisome than those potential jurors who unwittingly provide contradictory answers are those who do so with an agenda.

There was a slight hubbub among the attorneys the previous Friday, when the defense did a little online digging on a potential juror who had said all the right things on her questionnaire. Sifting through screenshots of the juror’s public Twitter, the defense’s brusque, small-statured Miriam Conrad pointed out that this woman had tweeted what Bruck called an “obscene statement of exultation” at the time of Tsarnaev’s arrest. Her post the night of the manhunt: “WOOOOOHOOOOOO YOU GOT TAKEN ALIVE BITCH!!!!! DONT FUCK WITH BOSTON!!!!!” The juror came to court, but got sent home after the defense exposed her apparent deception. Conrad emphasized the need to root out those who may “present one face to the court and another face to friends, family, and the public.”

Do they have what it takes?

Once O’Toole is convinced that a juror doesn’t have nefarious intent, he’s got to determine whether he or she can conscientiously vote for either the death penalty or life imprisonment. Jurors often don’t realize that the court is really asking: do you have it in you to sentence someone to death?

One mother just didn’t get it. After three attempts to reword this question for her, O’Toole gave up, Bruck covered his mouth in seeming amusement, and Weinreb jumped in, seeking a real answer. He pressed, and after several non-answers, she said “yes,” convincing no one but herself.

Judy Clarke, who has successfully represented many high-profile defendants, sits next to Bruck, her law school classmate, at the table. She has saved others, like the Unabomber Ted Kaczynski and Olympic Park bomber Eric Rudolph, by gaining a deep understanding of her clients and framing them as more than their worst actions.

Here, her skill and poise are apparent as she tries to rescue Tsarnaev from ending up on death row. The duo of Clarke and Bruck try to use jurors’ discomfort with the death penalty to their advantage. Clarke insinuates that it’s a subjective decision — a value judgment. She wants to appeal to these people’s humanity and to exploit Tsarnaev’s young age, perhaps, to gun for the lesser sentence.

Exacting as usual, prosecutor Weinreb takes exception — he doesn’t want jurors to be swayed by Clarke’s appeals. Objecting to every framing of Clarke’s questions, he argues that jurors do have an objective decision to make — they have to weigh aggravating and mitigating evidence to come to their conclusion.

A fair trial in Boston is an unlikely proposition

“We are sailing in uncharted seas,” said Bruck.

He was referring to the fact that he’s never heard of a jury being selected from the affected community — indeed, the courthouse is a mere two miles from the finish line of the Boston Marathon. The potential jurors that have been called in for questioning are supposed to be the most reasonable of the initial pool of 1,373 — they’ve survived two rounds of cuts to make it to the hot seat. But more often than not, they still fall short.

Expecting this, the defense had tried twice to get the trial moved out of Boston, even before hundreds of potential jurors filled out questionnaires. The judge was unconvinced. Last Thursday morning, as another round of juror questioning got underway, Tim Watkins filed a third motion to change venue. It was accompanied by a 19-page memo rife with jurors’ questionnaire answers and statistics, all in support of the defense’s claim that a fair trial in Boston is an unlikely proposition.

According to the memo, of all the potential jurors, 68 percent already think Tsarnaev is guilty without having heard a shred of evidence in court. Some 69 percent acknowledged a connection to people or events involved in the case. Take the union of those, Watkins writes, and 1,162 prospective jurors, or 85 percent of the pool, either believe the defendant is guilty or have a self-identified connection to the case.

Jurors, identified only by number, were quoted as writing down that the trial is a “waste of time and money,” that Tsarnaev should be publicly executed “preferably by bomb at the finish line,” and, from cooler heads, that “it will be impossible for him to have a fair trial.”

The emotional impact of the case was revealed as well. A mother of two described the events of April 15 as “one of the most terrifying things I had ever been through.” Others described the explosions, bloodied victims, and body parts being blown off. Psychological effects lingered for many — one wrote, “I still cannot go to Boylston Street w/out having fear or anxiety.” Another said three amputees were from her hometown, and “they are still going through treatment & always will be.”

The government’s rebuttal came days later, calling the defense’s language “hyperbole” and disputing the accuracy of the statistics and cited cases.

In response, the defense brought out the big guns. Their reply to the government’s opposition was graphic and personal — a bloody child on the cover of TIME magazine, and Facebook and Twitter posts they dug up from potential jurors’ accounts. Appearances can be deceiving, they claimed, and voir dire is not perfect, despite what the government thinks.

O’Toole is undeterred by the constant hang-ups and setbacks, assuring the lawyers last Monday that “we’re making good progress.” The court has interviewed 105 jurors in eight days, whereas O’Toole had originally planned on 40 a day.