JURY SELECTION IN MARATHON BOMBER TRIAL

• Steven Topazio wrote this February 19, 2015 at 7:30 pm

Accused Boston Marathon bomber Dzhokhar Tsarnaev’s defense team told a federal appeals court today that their client’s case should be moved out of Boston because his crimes have received more publicity than even those of reputed gangster Whitey Bulger; arguing Tsarnaev cannot get a fair trial in Boston because of bias among potential jurors.

Tsarnaev’s attorneys have raised the question of the “unexpressed” bias among those jurors. They argue the bombings and the lock down of the city and the manhunt for the Tsarnaev brothers which followed has made every resident in the region a victim of the bombing attacks. That “widespread victimization” and “the unrelenting publicity,” the defense argued in a filing Tuesday, makes it impossible to find anyone who is truly impartial.

Tsarnaev’s lawyers are arguing for what the law calls a “change of venue”.  They want to move the Boston Marathon bombing trial to a new location so as to obtain jurors who can be more objective in their duties.  They argue the crimes brought the city together in a way never seen before.  In reaction to the bombings of April 2013 that killed three people and injured hundreds of others, the slogan “Boston Strong” was created and has been used widely throughout the city. They have argued that in this high-profile case their client cannot get a fair and impartial jury due to the widespread publicity about the bombings at the finish line at the Boston Marathon two years ago, and have claimed that if they cannot get a change of venue under these circumstances, then no one will ever be able to be granted a change of venue.

The request to move the trial was the second time the Tsarnaev defense team has asked the 1st U.S. Circuit Court of Appeals to step in and take the decision on whether to move the trial out of the hands of the trial judge in the Federal District Court, Judge George O’Toole Jr .  Tsarnaev’s lawyers have argued — in three requests to the trial judge and two requests to the federal appeals court — that too many people in Eastern Massachusetts have a connection to the Marathon or already believe that Tsarnaev is guilty for him to receive a fair trial in the same city where the bombs went off.

Understanding The Jury Trial Process

The jury pool, also known as the venire, is selected from among the community, usually from voter registration lists, where jurors are randomly selected then summonsed to court to serve.  A panel of jurors is then assigned to a courtroom where the prospective jurors are randomly selected to sit in the jury box. Juries of six to twelve persons are selected from the jury pool. At this stage they will be questioned in court by the judge and/or attorneys to ensure they are fair and impartial.

Selected jurors are generally subjected to a system of examination whereby both the prosecution and defense can object to a juror. This process is known as voir dire. Voir dire can include both general questions asked of an entire pool of prospective jurors, answered by means such as a show of hands, and questions asked of individual prospective jurors and calling for a verbal answer.

During the jury selection process, attorneys can remove potentially biased juries by either challenging them for cause, (where the attorney has to argue and convince the court that a potential juror is biased before that juror can be removed) or through what is known as a peremptory challenge, (which challenges are limited but where jurors can be removed by the attorney for any reason).  Although Massachusetts does not have the death sentence under state law, the death sentence still exists in Massachusetts if the crime involves a violation of federal law.  In a capital punishment case, the jury must also be death-qualified which means those jurors must be removed from the potential jury pool who are opposed to the death penalty.

A death-qualified jury is one in which all members of the venire that categorically object to capital are removed. This is what is happening in the Tsarnaev jury selection process because if convicted, he faces the potential of receiving the death sentence.  Defense attorneys however, who are opposed to the death sentence, argue that ensuring that the jury will be willing to hand down a sentence of death, if they feel the crime warrants it, with regards to death-qualified juries, creates juries more likely to convict defendants of crimes than are jurors generally.

Alternate jurors are selected in some cases to take the place of jurors who may become ill during the trial. Alternate jurors hear the evidence just as the other jurors do, but they don’t participate in the deliberations unless they replace an original juror.

When both parties have agreed upon a jury, the jurors are sworn in to try the case by the court clerk. Those not selected are excused.

Once impaneled, the jurors’ role is to listen to the evidence conscientiously and not draw premature conclusions until the case has ended. They are instructed by the judge not to discuss the case with outsiders or each other (until deliberations).

Boston Criminal Attorney Steven J. Topazio

Steven Topazio has been a criminal defense attorney for over 29 years and represents the wrongfully accused throughout Boston and Massachusetts. He is rated AV Preeminent by Martindale-Hubbell, 10.0 Superb by AVVO, a Top 100 Trial Attorney and holds membership in the invite-only American Society of Legal Advocates.

If you have been charged with a crime, contact Attorney Steven J Topazio. He believes everyone is entitled to the Best Defense and is prepared to investigate every aspect of the allegations and circumstances of your case in order to build an aggressive defense.