Selection is scheduled to begin in the trial of the last living Boston Marathon bomber, Dzhokhar Tsarnaev. The defense sought to delay jury selection as it needed more time to complete its preparations for trial, as well as move the trial to a location where there might be some hope of finding an impartial juror. Judge George O’Toole Jr. refused.
O’Toole rejected the defense’s motion to delay jury selection, noting that it would pose too great an inconvenience to the more than 1,200 people who have been called in for that purpose. Mere inconvenience aside, delaying jury selection for too long could necessitate a re-summonsing, which would delay the trial for months. The trial has already been pushed back from a November start.
The “inconvenience” now is the by-product of the decision to move forward despite the defense’s requests for more time. While the court’s concern for 1,200 potential jurors is slightly endearing, the system doesn’t exist for their convenience, but to provide the defendant with a fair trial. Then again, perhaps Judge O’Toole realizes that no amount of delay, no change in venue, is going to alter the outcome.
The prosecution demands Tsarnaev’s death. There are plenty of people who agree with this outcome. Despite the assumption that people in Massachusetts are a bunch of wooly haired liberals, disinclined to execute even the “worst of the worst,” the Boston Marathon bombing was a crime that touched these same people too closely. The smell of blood was in the air after the smoke cleared, and will be in the air during Tsarnaev’s trial.
The defense has little hope of challenging guilt. The battle is over retribution. The battle is one of life and death. That means that the decision will depend on how the willing the jury is to put the defendant to death, which raises the specter of the death-qualified jury.
The concept of the death-qualified jury is one of enormous controversy.
Our system creates a theoretical out, since we cannot have, the Supreme Court told us in 1976, a mandatory death penalty. There must be at least one life alternative because the death penalty is to be reserved not merely for the worst offenses but also for the worst offenders. In practice, that means the jurors and the judges have the wiggle room to do whatever they want as they decide whether this or that person should be killed.
Of course, we first remove from the jury those who insist nobody should be killed (and in theory at least are entitled to remove those who cannot be dissuaded from declaring their insistence that everyone should be). But there is room. The jury which is instructed not to consider mercy, may be merciful.
It’s a conundrum. The putatively impartial jury is vetted for those who will not vote to kill, rather than rely on the persuasive force of the evidence and advocacy to change their view and adopt the position that, in this case, death is the right outcome. Instead, the jury begins skewed by those with a predisposition toward death, shifting the burden to the defense to persuade them not to kill. At least this time.
To those of us for whom the fast death penalty (as opposed to life in prison with no possibility of parole, also known as the slow death penalty) is not an appropriate goal for a legal system, the mountain Tsarnaev’s lawyers are expected to climb seems absurdly steep.
There is little sympathetic about the Boston Marathon bombing, and few will be terribly concerned about poor Dzhokhar Tsarnaev. The victims are, and deserve to be, far more deserving of our sympathies. It was a horrible crime. Absolutely, utterly horrible. Whether that makes the crime, and the defendant, the worst of the worst is a matter of argument, but let there be no mistake: this was horrible.
Perhaps the best argument in favor of letting Dzhokhar Tsarnaev live comes from the most unlikely source, a voice so vociferously antagonistic that no option short of death is conceivable.
At Seeking Justice, Tom McKenna rips the National Association of Criminal Defense Lawyers for putting on a CLE on capital voir dire, the selection of jurors in a death case who aren’t “killers.” It seems that McKenna received a flyer (email?) to attend, which set him off.
In the twisted world of the legal left, a potential juror who believes in the death penalty in an appropriate case is referred to as a “Killer;” i.e., a juror potentially willing to “kill” the lawyer’s client who is, you know, being tried because he is, you know, like, a real, actual killer. And the juror who will not impose death is a “Life-Giver.” Unlike, again, the defendant who was what?– A life-taker.
I suspect strongly that in the surreal universe of these sleaze bag lawyers, who are willing to call jurors “killers,” they never refer to their clients as killers, or even life-takers.
As one of those “sleaze bag lawyers,” I think it’s fair to say that McKenna doesn’t have any issue with a death-qualified jury. Rather, he has an issue with the fact that us “sleaze bag lawyers” strive to prevent yet another death, this one at the hand of the government.
This is a truly mentally disturbed bunch, and a disgrace to our supposedly learned profession.
McKenna says it as clearly as anyone could, the view of what is expected of Tsarnaev’s lawyers to prevent 12 of the 1,200 jurors from returning a verdict of death, is to “disgrace . . . our supposedly learned profession.”
While Judge O’Toole did not, and presumably, never would be as flagrant as McKenna, his refusal to accommodate the defense’s motions for more time and change of venue ultimately say the same thing. What a “truly mentally disturbed bunch” indeed. But as long as the jurors aren’t inconvenienced, and Tsarnaev ends up sentenced to death, sanity will have prevailed and the people on McKenna’s team will be happy that justice was done.
Update: Via Eugene Volokh, the 1st Circuit, in a 2-1 decision, has refused to disturb Judge O’Toole’s denial of the motion for change of venue. Bizarrely, it based its decision on the Skilling case, despite the fact that there is little comparison between the public’s knowledge of and prejudice toward Enron’s Skilling as compared to Tsarnaev.
In contrast, the lone dissenter, Judge Torruella, compared this case with McVeigh, where a change of venue was granted. Clearly, McVeigh is a far better analogy than Skilling.