Margaret Small/Associated Press/File
In a matter of weeks, the federal court in Boston will be looking for people over 18 to perform a civil service for about five months, with compensation of about $40 a day. If you are 70 or older you can refuse, and active duty soldiers, police officers, or firefighters won’t be asked to serve, either.
But if you can speak and read English, you could be enlisted, and unless you have an extreme hardship — such as a young child to care for, or a terminally ill relative — you have few chances of being excused.
Those who make the final list will become part of one of the most significant trials the country has seen in recent times, one that will become part of the history of the Boston Marathon bombings and their aftermath.
Jury selection in the case of accused Marathon bomber Dzhokhar Tsarnaev is slated to begin in January, and US District Court Judge George A. O’Toole Jr. plans to begin by calling at least 1,000 people to the court for what could be a long, complex process to impanel a jury of 12, with six alternates.
Most people from Eastern Massachusetts could qualify, as long as they assure lawyers and the judge that they are capable of handing out the death penalty, if the punishment is warranted.
“The unique part about this case is you need what’s called a death-qualified jury,” said Robert Sheketoff, a prominent Boston lawyer. “You have to find people who are willing to impose the death penalty.”
Tsarnaev and admitted serial killer Gary Lee Sampson, who goes before a jury in February, both face the possibility of the death penalty. That is a rarity in Massachusetts, where there is no death penalty for state crimes.
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 29 percent opposed.
O’Toole in September rejected a defense request to relocate the trial, ensuring that a local jury will be seated at the courthouse in South Boston, only a few miles from the Boston Marathon finish line. That raises the possibility that potential jurors could also have a personal connection to the bombings because they were at the Marathon that day, know someone who was, or know someone involved in the extraordinary manhunt afterward.
“I bet you everybody you know is only three degrees of separation from someone who was there,” said David Hoose, a Northhampton-based attorney who specializes in death penalty cases. “If people are honest, and I think most people are, I think it’s going to be very difficult to get most people to say, ‘I’m not going to be influenced by the emotional reaction of what was going on.’ ”
With the trial slated to begin Jan. 5, legal analysts outlined for the Globe the possibilities of being picked and what the lawyers will be looking for in jurors.
“No one wants a juror improperly seated,” said Sheketoff, who defended Sampson in a death penalty trial a decade ago.
Sampson’s first jury sentenced him to death, but the decision was overturned in 2011 after lawyers learned that one of the jurors had lied during the impanelment process.
O’Toole said at a recent court hearing that he will summon at least 1,000 potential jurors to court during the first full week in January for Tsarnaev’s trial, and he will call more if needed. The summons will be sent at least six weeks in advance, meaning they could arrive within weeks.
James McAlear, the jury administrator for the federal court system in Massachusetts, said the recipients of a summons would include anyone over 18 who has lived in the same judicial district for at least a year. Jurors will come from the Eastern Division of the District of Massachusetts, meaning they would live in the counties of Essex, Middlesex, Suffolk, Norfolk, Bristol, Plymouth, and Barnstable, as well as Martha’s Vineyard, Nantucket, Chappaquiddick Island, and the Elizabeth Islands.
The names of potential jurors will be picked at random from a list of potential jurors provided by the Massachusetts jury commissioner. That list will include the names of 35,000 qualified jurors from the Eastern Division, and each county within the division shall be represented in proportion to the number of potential jurors from that county.
Potential jurors could ask to be dismissed if they are over 70 or have served at least five days of state jury service or any federal jury service within the last three years. Anyone who has been convicted in a state or federal court of a crime punishable by a year or more in prison could also be dismissed.
And anyone with a demonstrable hardship, such as a young child to care for or a sick relative, could ask to be excluded. But the court is reluctant to grant a hardship for economic reasons, so it encourages employers to continue to pay jurors while they are out of work.
Jurors would be paid $40 a day for their service, but federal court officials tell employers, “Paying the difference between your employee’s salary and the juror attendance fee is strongly encouraged, if possible.”
Anyone who refuses to comply with a court summons can be fined $1,000 and/or imprisoned for up to three days and/or required to perform community service.
Hoose said if he were on the Tsarnaev case, he would look to dismiss any potential jurors who seemed too willing to serve, however.
“I just think they’d have an ulterior motive,” he said.
While the judge will use a lengthy questionnaire to screen jurors’ backgrounds, he and lawyers on each side will then interview each potential juror who has not been excluded, a process that could take weeks.
“I think you’re going to find that the bulk of the questions focus on the death penalty,” said Hoose, who represented Kristen Gilbert, the Veterans Affairs nurse who was convicted in 2001 of killing her patients in the first federal capital punishment case in Massachusetts in modern history.
A jury spared her of the death penalty, however, and Hoose said Tsarnaev’s lawyers will want to impanel similar jurors — those who say they can choose the death penalty if warranted, but who can also agree on a sentence of life in prison.
“All you need is one juror who will hold [out] for life,” Hoose said. “You’re looking for jurors who will have the courage to vote for life in an unpopular case.”
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