Tsarnaev’s Inconvenient Jury (Update)

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.

15 thoughts on “Tsarnaev’s Inconvenient Jury (Update)

  1. Richard G. Kopf


    I am embarrassed that I don’t know the answer to this question. If the judge in Boston granted the change of venue to say, Chicago, would the judge keep the case or would it go to a district judge in the Seventh Circuit? I suppose the Chief Justice could approve the designation of the Boston judge to sit in another Circuit as a district judge, but I don’t think there is an assurance that such a designation would automatically follow. The same thing would be at issue if the change of venue was within the Circuit, although the issue of designation would be determined by the Chief Circuit Judge off the district where the case was first filed.

    You see where this is heading–concerns about continuity and judge shopping, sorta.

    If you, or any of your correspondent’s know of a federal death penalty case where a judge granted a change of venue to another district within or without his or her Circuit and kept the case, I would be pleased to know the mechanics of how that was accomplished.

    All the best.


    1. Andrew

      For a starting point, see U.S. v. McVeigh, 918 F. Supp. 1467 (granting change of venue from W. D. Oklahoma to D. Colorado).

    2. Peter H

      Judge, the most comparable precedent I can think of is the trial of Timothy McVeigh for the Oklahoma City bombing, which was transferred to the courtroom of Judge Richard Matsch in the 10th Circuit. McVeigh’s appeals challenging his conviction were heard in the 10th Circuit.

      Not 100% on the mechanics yet, I’ll research it a little if I can and drop you an e-mail, since SHG prohibits links here.

    3. SHG Post author

      I don’t know the answer either (though McVeigh seems the obvious candidate for a source, as others have noted), but it raises a secondary question. Does continuity or convenience trump the defendant’s due process rights? Trial in Boston is shooting fish in a barrel in this case. There are arguments in mitigation of death, but do they stand a chance there? Should we have to ask this question?

  2. Patrick Maupin

    I foolishly followed the link to Seeking4Justice; now I have to go wash out my eyeballs with bleach. McKenna would fit right in in the 2000 year old war in the Middle East — on either side.

    At first, I thought I would like the odds of being in a 1200 people jury pool, but then I realized that, unless there is some sort of expedited fill-in-the-form questionnaire, voir dire would probably take longer than the week long murder trial I participated in as a juror.

  3. John Barleycorn

    Cool, SJ breaks-in the first weekend of 2015 with the sixth amendment. How cool is that!

    Relax, I am sure Judge George Jr. will lean towards the jury a little but further than he normally does wile educating them via his jury instructions. I doubt he will wink but you never know…

    Instructions that will be tweaked to specifically instruct the death-qualified jurors that its a no-no to let any of that pre-trial saber rattling publicity
    find any steel track amongst their synapses other than the cntrl/alt/delete ignore buttons before they find the rails to the gallows in an “acceptable way”.

    P.S. The cheap seats expect you to master the fork ball in 2015 you arm is getting to old to keep bringing all this heat day in and day out. Expand your legal tinkering and thinking mind and let the zen madness of the fork ball find the strike zone via the unchartered path. It’s not all in the delivery you know…with the right touch of legal history and fingernails trimmed in theory it should all come together.

  4. nidefatt

    You’re assuming Bostonians care. I doubt it. The Boston Marathon is just a headache for anyone from the city. Bostonians are educated enough to be interested in the Chechen rebels grievances with our government. They’re also capable of feeling insulted by the law enforcement response, which included martial law in Boston and north of the Charles and killing Tsarnaev’s buddy down in Florida. The defense put on lousy evidence to support the claim that this case needed to be moved- read the Boston Globe articles, Boston.com is junk news.

    The speed at which this case has gone to trial is far more concerning. The court’s rejection of the requests for continuances so the case can be properly prepared are difficult to square with having a fair trial.

    1. SHG Post author

      I am assuming Bostonians care. Maybe it was that whole Boston Strong thing, plus everybody I know up there tells me so. Still, I could be wrong.

      1. RAFIV

        nidefatt’s comment puzzles me.

        Tsarnaev’s case has been subject to heavy media scrutiny from the front page to the sports pages. A very small subset of the population – mostly confined to the “Solons” who reside in “centers of enlightenment” such as Cambridge, Belmont and their ilk- may be inclined to entertain “the Chechen rebels grievances with our government,” but no one from South Boston, Worcester, Revere, or Gloucester will.

        As for the “martial law”, did anyone take notice of the crowds reaction to law enforcement at the conclusion of the firefight? The hero’s response and outpouring of assistance for the State Trooper who released the arrest photographs received when he was disciplined? It was Ferguson is reverse. I don’t think I have seen such mutual admiration in my lifetime and it swept up many of us.

        In short, Tsarnaev’s trial needs to be moved and I have a hard time believing that the Court is siding with the Government in this matter. Oh, and, by the way, Boston.com is the wholly owned subsidiary of the Boston Globe.

    2. Michael

      I’m pretty sure my annoyance at the inconvenience of a marathon being hosted by my city would pale in comparison to my anger that someone set off a bomb at the marathon in my city, killing innocent people. Even if I thought most people in my city were a-holes, there’s nothing like a common enemy to unite people.

  5. John Barleycorn

    A few handfuls…if this guy Boston-Federal-Electrocutes so be it.

    I am going to jerk off to the jury instructions. delayed on tape, if they are extraordinarily creative.

    Call out to all the closeted CDL’s from the cheap seats. It is 2015. The esteemed one is seven year itching (or there abouts) pitching gets every more interesting arm or mind.

    The esteemed one is not likely to call you out nor insist on your identity if you come with the dominatrix and submit to these silly fucking rules. Or better yet just have your arm together and work the rotation.

    Don’t be a wuss!

    I will catch even if I don’t know what the fuck is going on in the bullpen.

    For a while…

    You guilded ones have the esteemed ones six. Give him some room to go forkball.

    Might take a few innings.


    Represent. YOUR GUILD!

  6. Ahcuah

    I notice that what was denied was a petition for a writ of mandamus, with the majority saying simply that the “petitioner has not made the extraordinary showing required to justify mandamus relief.”

    Does this mean that, instead, we could have the full trial, a death penalty result, and then on appeal the Court of Appeals could still reverse because Tsarnaev didn’t get a fair trial because of the venue? Or is this denial of the petition binding on that issue even in a later appeal?

    1. SHG Post author

      Yeah, it’s an awkward position, as they had to use mandamus to get around O’Tool’s ruling since there is no interlocutory appeal. I don’t believe it precludes revisiting it on direct appeal, but it surely makes everybody look like a flaming idiot if the Circuit flip flops afterward.

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