Nearly two years after the Boston Marathon tragedy, the trial of one of the accused bombers is set to open — the final chapter of a saga that will forever be ingrained in the city’s history.
Starting Monday, the judge, prosecutors, and defense lawyers will start whittling down a list of more than 1,200 names, aiming to find 12 jurors and six alternates capable of deciding whether Dzhokhar Tsarnaev, 21, is guilty, and if so, whether he should be put to death.
The trial, which is attracting international attention, is expected to move especially slowly and with more than the usual care because a life is at stake; testimony probably will not begin until February, and a verdict may take until late spring or early summer.
“This is not just any other big trial,” said David Hoose, a Northampton lawyer who is one of the few in New England to have tried a death penalty case. “A death trial is different . . . death is different.” He added: “Every phase of it is subjected to greater scrutiny, which is appropriate given the potential outcome.”
For the jury to determine Tsarnaev’s sentence, the panel must be unanimous in its decision. If it is not, the judge would be required to step in and sentence him to life in prison. No declaration of mistrial would be allowed, lawyers who specialize in the death penalty said.
The potential jurors summoned by US District Judge George A. O’Toole Jr. over the next three days will start by filling out surveys to help determine whether they are qualified to serve on a death penalty jury. They will be intensely screened for impartiality, and the ability — and willingness — to sentence Tsarnaev to death, if the verdict warrants it.
A Boston Globe poll in July found that 62 percent of respondents supported US Attorney General Eric Holder’s decision to seek the death penalty for Tsarnaev, while only 29 percent opposed the decision.
The judge will also have to find jurors who, while willing to hand out the death penalty, also feel capable of opposing it if they find the crimes do not warrant death.
The Massachusetts courts last struck down the state’s death penalty in the early 1980s, and the last execution to take place in the state was in 1947. But Tsarnaev has been charged in the federal court system, which allows for capital punishment for about 50 crimes, including the detonation of weapons of mass destruction resulting in death, one of the crimes Tsarnaev faces.
Tsarnaev faces 30 charges — 17 of which carry the possibility of the death penalty — in the bombings at the Marathon finish line the afternoon of April 15, 2013, that killed three people and injured more than 260 others. Tsarnaev and his older brother Tamerlan also allegedly shot and killed an MIT police officer in Cambridge days after the bombings, a crime for which Tsarnaev is also charged.
Prosecutors are seeking the death penalty for Tsarnaev in part based on the vulnerability of his targets, and his “heinous, cruel, and depraved manner of committing the offense,” according to court filings.
Tsarnaev’s defense team has argued that it has not had enough time to prepare for the trial, and that finding impartial jurors in the same city where the bombs went off will remain impossible — an argument that has been echoed by legal analysts.
But O’Toole has ruled that the defense team has failed to show that he cannot impanel a fair jury in Boston, and he has said the defense team has had enough time to prepare. A federal appeals court in Boston on Saturday refused a last-minute defense request to intervene.
Since his arrest, Tsarnaev has been held at the federal prison at Fort Devens in Ayer, under special conditions that restrict his communications. Five lawyers are assigned to his case. The prosecution team also includes five lawyers, with assistance from the federal Department of Justice.
The jury selection process could take at least a month. O’Toole and the lawyers from both sides will begin by reviewing the jurors’ initial surveys to determine which of them should immediately be excluded: for example, if they have a personal connection to the case, or a hardship that would prevent them from serving, such as a young child or ill relative who needs care.
The judge and the lawyers will then meet in person with the remaining potential jurors to determine whether they have any disqualifying qualities and confirm that they would be able to fairly consider a death sentence if it is warranted, legal analysts said.
“You’re talking about a group of human beings sitting down, making a calculated decision to take another person’s life,” Hoose said.
A federal jury in Massachusetts has decided on life or death only twice: In 2001, a jury in Springfield convicted veterans’ nurse Kristen Gilbert of killing patients but spared her the death penalty. In 2003, admitted serial killer Gary Lee Sampson, a transient, pleaded guilty to the carjacking deaths of two people in Massachusetts, and a jury sentenced him to the death penalty.
Sampson appealed, and the jury’s verdict was vacated in 2011 after a judge determined that one of the jurors had lied during the screening process. An appeals court upheld the decision.
Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based research organization, said the decision to overturn Sampson’s death sentence nearly a decade later shows the import attached to death penalty cases, a factor that will affect Tsarnaev’s trial.
“If it wasn’t for the death penalty, there wouldn’t be much of a trial at all,” Dieter said of Tsarnaev’s case. “There’s the expectation that it will be done right; there are the resources for it to be done right. You can’t leave any stone unturned.”
Prosecutors plan to argue that Tsarnaev was clearly intent on a terrorist attack at the Marathon, with overwhelming evidence — including video of him with the backpack that they say contained the bomb. Prosecutors have named more than 700 potential witnesses and have documented hundreds of pieces of evidence.
The trial will be split into two phases. If jurors find Tsarnaev guilty of the bombings, they would have to determine his fate in a second, full-fledged trial, with evidence and witness statements.
In that trial, however, the rules of evidence are far more relaxed, giving prosecutors and defense more leeway in painting a picture of Tsarnaev.
Prosecutors will want to show that he was a determined, indiscriminate killer. Defense lawyers will seek to portray Tsarnaev as an impressionable teenager who was influenced by a dominant older brother who had grown extreme in his Muslim views, according to court records.
“They will seek to tell the story of how he got to be where he was in a way that makes it human, and, although not excusable, in some measure understandable,” said Max Stern, a lawyer with the Boston firm Todd & Weld.
In Tsarnaev’s case, Stern said, defense lawyers “will try to get the jury to see him as a young man — as a youth who was molded by his experiences as opposed to somebody who they will see as a predator.”