Boston bombing trial prepares for jury selection

Rare federal death penalty trial against Dzhokhar Tsarnaev set to grip US and divide opinion

The blood has long since been scrubbed from the finish line. The memorials have vanished, and the fund that raised money for victims has closed. But the ordeal is not over. Boston is preparing now for its legal reckoning with Dzhokhar Tsarnaev, who stands accused of bombing the 2013 marathon and turning Boston's premiere athletic event into a scene of terror and carnage. His trial will revive memories of how those bombs killed three people, blew the legs off 16 others and wounded 260 more.

The jury will be selected on Monday. Not since September 11th, 2001 has an act of terrorism wreaked such havoc on an American city. The devastation, both physical and psychic, was pervasive. In arguing that no jury here could be impartial, Judy Clarke, Tsarnaev’s lawyer, has said that virtually everyone in the region is, “in effect, an actual victim.”

Clarke is famous for cutting deals that keep her clients off death row. At some point in the process, her clients - including Theodore Kaczynski, the Unabomber; Eric Rudolph, the Olympic Park bomber, and Jared Loughner, who killed six people in an assassination attempt on former Republican Gabrielle Giffords - pleaded guilty in exchange for a sentence of life in prison, with no chance of parole.

But here she faces one of her toughest challenges yet: trying to spare the life of a reviled defendant in a case that traumatised and enraged the nation while she faces federal prosecutors who appear determined to put Tsarnaev to death. "The nature of the conduct at issue and the resultant harm compel this decision," attorney general Eric Holder, who personally opposes the death penalty, said last year when he authorised prosecutors to seek it for Tsarnaev. Carmen Ortiz, the US attorney for Massachusetts, said in court papers that the death penalty was justified for Tsarnaev for several reasons, including that he used a weapon of mass destruction and has shown no remorse.


Bostonian opinion divided

As Tsarnaev sits in near solitary confinement at the prison hospital at Fort Devens, an Army base about 40 miles northwest of here, many say they dread seeing him in the limelight. But they want the trial to serve a purpose. “I hope the trial will bring a resolution for people who still feel unsettled,” Abby Miller, 22, a baker, said Wednesday as she walked by the finish line on Boylston Street. Views vary widely as to what that resolution should be. Kristine Biagiotti-Bridges, 47, of Mendon, Massachusetts, who was pushing her daughter, Kayla Biagiotti, in a wheelchair across the finish line when the bombs exploded, says he deserves death. “Seeing everything going on in Boston with the trial and all the security around, the bomber going in there - it brings back that anger towards the stupidity of a few people that have ruined so many lives,” she said. Todd Koen, 42, of Beverly, Massachusetts, a firefighter at the scene after the bombs went off, is just as infuriated at Tsarnaev but thinks he should be sent to prison for the rest of his life. “If he gets the death penalty he gets off easy,” Koen said. “He doesn’t have to deal with it or live with it.” Clarke, who is preparing a defense that casts her client as having been manipulated by his older brother, Tamerlan, has made overtures to prosecutors about a plea bargain, according to a lawyer close to the case. But so far she has been rebuffed, and her frustration showed in court papers that she filed December 29th seeking to delay the trial.

“If the government remains unwilling to relent in seeking death, and the case therefore must be tried, the defense is asking for nothing more than a trial that is fair,” she wrote. It will not be fair, she said, unless she has more time to prepare. In a flurry of last-minute pleadings, Clarke, who declined to be interviewed, also sought to have the trial moved out of Boston. But for now, it is scheduled to start here Monday.

Federal death penalty

Federal death penalty trials are rare. This would be the biggest since that of Zacarias Moussaoui, a September 11th conspirator, in 2006, and the trial of Timothy McVeigh, the Oklahoma City bomber, in 1997. That such a trial would take place here is the source of some angst. Massachusetts has no death penalty and sentiment in this city is strongly against it; a Boston Globe poll in September 2013 found 57 per cent of Bostonians favoured life without parole for Tsarnaev, while 33 per cent favoured death.

Still there has been little outcry at Holder’s decision to authorise the death penalty. In July, a Globe poll of voters statewide found 62 per cent supported it, while 29 per cent were opposed. The state’s top politicians, including senator Elizabeth Warren, outgoing governor Deval Patrick and the Boston mayor, Martin Walsh, all Democrats, oppose the death penalty but none spoke out against the decision.

Tsarnaev has pleaded not guilty to 30 counts stemming from the explosion of two bombs on April 15th, 2013, at the finish line. On April 19th, after a night of mayhem that included the killing of a Massachusetts Institute of Technology police officer and a frenzied manhunt, Tamerlan Tsarnaev, 26, lay dead, having been shot by the police and run over by Dzhokhar, who was escaping in a stolen sport utility vehicle; Dzhokhar was later captured in a boat in a suburban driveway.

To many, the evidence against him appears overwhelming. Prosecutors have said that surveillance images show him at the marathon placing his backpack near 8-year-old Martin Richard, who was killed by the explosion. When he was hiding in the boat, they said, Tsarnaev, angry about the killing of Muslims in Iraq and Afghanistan, scrawled incriminating messages ("Stop killing our innocent people and we will stop."), and while recovering in the hospital, they said, he admitted to the bombings.

The jurors

The court has summoned an initial pool of 1,200 potential jurors, all residents of eastern Massachusetts and far more than for any other trial here in memory. Only those willing to impose the death penalty can be chosen. The trial is expected to take three to five months.

If there is no plea agreement, the trial will proceed in two phases, with the same jury. The first is to determine guilt or innocence; if Tsarnaev is found guilty, as many expect him to be, the second will determine whether he is sentenced to life or death.

“The only interesting question in this trial is whether the most odious defendant who committed the most odious crime will get the death penalty,” said Michael Kendall, a former federal prosecutor in Boston. “Nothing else will be seriously in dispute.”

It is during the sentencing phase that Clarke would make her case to spare Tsarnaev’s life. Typically, her strategy is to burrow deeply into her clients’ backgrounds, down to details like their prenatal medical history, to humanize them and help a jury understand what led them to such horrific acts.

Clarke is expected to portray Tsarnaev, who was 19 at the time and had no prior criminal record, as having been manipulated by his older brother, who will be cast as an aggressive bully and the mastermind behind the bombings. The case would then go to the jury for sentencing. Death sentences can be hard to obtain; federal juries have imposed them only one third of the time, and the jury must be unanimous. And even though jurors must be open to imposing death, some find that they cannot actually do so. This is why jury selection is so critical in capital cases and can take weeks. Both sides are likely to employ jury consultants and run mock jury selections.

Life sentence vs federal death penalty

Even if the jury imposes the death penalty, the appeals process can go on for years. Of the nearly 500 federal death penalty defendants since 1988, only three have been executed. Defense lawyers not affiliated with the case say that a plea deal for a life sentence could yield the same outcome as a trial, without the time and expense. Moreover, they say, it would spare everyone from reliving traumatic events, and the defendant could not appeal, meaning he would not keep cropping up in the news.

“It makes all kinds of sense that they avoid a trial, and not just because of the very high probability that he will be found guilty,” said Eric Freedman, a death penalty specialist at Hofstra University Law School. “The families get to say their piece. And he does not get to become a martyr.”

But Kendall, the former prosecutor, predicted that the government would not agree to a plea. “Giving up the death penalty in this case would be a very charged political issue because of the horrific impact on the victims and the community,” he said. “There would be a lot of criticism. From a prosecutor’s perspective, the safer course is to seek the death penalty.”

New York Times