January 2015 | by Dan Harayda
BOSTON — The Boston Marathon bombing trial gets underway Monday as potential jurors begin arriving at federal court, where a panel of 12 will ultimately decide whether 21-year-old suspect Dzhokhar Tsarnaev is executed.
More than 1,000 residents of eastern Massachusetts, a region still scarred by the deadly attacks of April 2013, will fill out jury selection questionnaires. A litany of queries boils down to two essentials: Can you be fair? Can you impose the death penalty if conditions are met?
Seating a qualified jury will be difficult, court watchers say, and could take weeks. It’s as important as anything that might happen in the courtroom after jurors take their seats.
“This jury selection process is going to be like very few others in a federal criminal case,” said Jeremy Sternberg, a former federal prosecutor who is a partner at Holland & Knight in Boston. “It’s going to take a very long time. … Its importance cannot be overstated.”
The scale of the attack was so vast that every potential juror could already know the case on a personal level. It was the largest act of terrorism in Boston’s history, and its effects rippled across the region. The bombings left three people dead, injured more than 260 and led to at least 16 people having limbs amputated. The ensuing five-day manhunt climaxed with a daylong, citywide shutdown before Tsarnaev was captured hiding in a backyard boat.
The trial will unfold in two phases — a guilt phase followed by a penalty phase if necessary — and could take months to complete. Having the same jury sit for both phases raises the stakes of jury selection all the more.
“I have real concerns that no matter who sits on that jury, they have been impacted in some way by the events of the Marathon bombings,” said Michael Coyne, dean of the Massachusetts School of Law in Andover, Mass. “We hope that, at least in the second phase, we get someone to look at the factors objectively.”
Judge George O’Toole denied a defense request to move the trial out of Boston. The location creates challenges for both sides.
Prosecutors want a jury that will not only convict but also vote unanimously, as required, to impose a death sentence.
That could be tricky to achieve in Massachusetts, where the death penalty has been outlawed since 1984. Tsarnaev could get death because he’s being tried in federal, not state, court. A 2013 Boston Globepoll found just 33% of Bostonians believe Tsarnaev should get the death penalty if he’s convicted. Polls from the University of Massachusetts-Amherst found more support statewide: In 2013 and again in 2014, 59% of respondents said Tsarnaev should get the death penalty if he is found guilty.
“The defense will be trying to get jurors who they believe can either sway the entire jury to acquit, or who will be holdouts and not convict,” Sternberg said. “That will be their mission.”
If a jury can’t reach consensus on any counts in the guilt phase, the result is a mistrial and the case is tried again. In the penalty phase, a hung jury would mean life in prison with no chance of parole if Tsarnaev has been convicted on the most serious charges.
If any case can get a Massachusetts jury behind a death sentence, this might be it. According to the 30-count indictment, Tsarnaev conspired with his older brother, Tamerlan, who was killed as they tried to escape police, to detonate two inexpensive pressure-cooker bombs that wrought havoc near the Marathon finish line. Seventeen of the counts carry the death penalty.
The trial is sure to conjure memories of horrific carnage in Boston’s upscale Back Bay neighborhood. When the bombs exploded, a barrage of shrapnel tore into spectators’ legs and feet, knocking people to the ground and causing chaos. Scores of victims were taken to area hospitals, where they had surgery and were treated for burns and ruptured eardrums. Two women in their 20s were killed, as was a child, 8-year-old Martin Richards.
When bombing victim Karen Brassard of Nashua, N.H., ponders the toll of that day, she thinks about the lower-body injuries that still afflict her, her husband and her daughter. And because others have it even worse, she sees a death sentence as a necessity for justice.
Tsarnaev “gets to visit with his family and have joy in his life, but Martin Richards’ family no longer gets to do that,” Brassard said. “That’s not just.”
Not everyone is convinced that Tsarnaev, an ethnic Chechen who came to the United States as a child refugee and became a naturalized U.S. citizen, was involved in the bombings. Skeptics say he’s being scapegoated by a government that needs someone to blame and is pinning culpability on a pair of Russian-speaking Muslim brothers in the crowd.
“Don’t just think that government is holy government and always says the truth,” Elena Teyer of Savannah, Ga., said outside the Boston courthouse in December. “Who needed to start war? Who needed to make Muslims look bad? Not Dzhokhar. Why would he do this?”
Teyer’s son-in-law, Ibragim Todashev, was a friend of Tamerlan Tsarnaev. Todashev was killed by an FBI agent during questioning after he allegedly tried to attack the agent.
Observers say prosecutors are well-positioned to prevail after they present evidence including items gathered from a 15-square-block crime scene and a cavalcade of witnesses.
“They have a very strong case,” said Christopher Dearborn, a criminal defense attorney and a professor at Suffolk University Law School. “They have a ton of direct evidence, factual evidence. … They have videotapes of people dropping things off, they have very powerful witness testimony, and they have forensics.”
Defense attorneys are apt to paint Tamerlan Dzhokhar as the true Islamic radical, a violent man with coercive power over his intimidated younger brother, said Coyne, the law school dean. A jury might want to spare the young man’s life if he appears to have been overpowered and shows remorse, he said.
But seeking mercy on the grounds of having been a manipulated co-conspirator could be a hard case to make after arguing “not guilty” for weeks.
In that scenario, “the lawyers have to say he’s innocent in the first trial, then acknowledge he’s guilty and beg for mercy in the second trial” when penalty options are debated, Dearborn said. “Part of the risk is that his advocates will lose any credibility with the jury.”
As the trial ramps up, open questions loom large. Example: Judge O’Toole has waited months without ruling on a defense motion to toss out statements Tsarnaev allegedly made to FBI agents before he was told his rights. If those statements are admitted as evidence, prosecutors will have won an important battle.
Another possibility: Tsarnaev could still strike a plea deal and avert a painful trial for Bostonians, especially victims and their families. But Dearborn said he believes behind-the-scenes efforts to cut a deal haven’t borne fruit because prosecutors are holding out for the death penalty.
The trial could give Americans a window into a growing type of threat: Attackers who act independently rather than as operatives of a terrorist organization, said Zachary Goldman, executive director of The Center on Law and Security at New York University School of Law.
Such threats are increasing, Goldman said, because hundreds or thousands of people who have gone abroad to fight for the Islamic State could at some point start returning to the United States or Western Europe in large numbers.
“The trial might shed light on these issues and make people more aware of what’s at stake,” Goldman said. “That will be the strategic significance of the trial.”