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    Potential Tsarnaev jurors face deeper questioning

    Dzhokhar Tsarnaev
    AFP/Getty Images via FBI
    Dzhokhar Tsarnaev

    Last week, more than 1,350 people from across Eastern Massachusetts were called to federal court in Boston to fill out a questionnaire that will help determine whether they can serve in the trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev.

    Now, defense lawyers, prosecutors, and the judge in the highly anticipated case are poring over those 28-page questionnaires, looking for any detail or hint that might reveal whether the prospective juror should be disqualified.

    “The only question before [the judge] is, can this person serve appropriately in this case,” said Edward Schwartz, a jury consultant with DecisionQuest, a Waltham-based litigation consulting firm. But for the lawyers on both sides, much can be gleaned from a prospective juror’s answers to the 100 questions posed by the court. “You can get insight into which way those people are likely to go,” Schwartz said.


    Legal analysts say the challenging part of the jury selection process is what happens next: Once the defense lawyers, prosecutors, and judge review the questionnaires, they will have to determine whom to bring back to court for more questioning. And, they will have to determine what additional questions to ask.

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    That in-person questioning — called voir dire — is slated to begin Thursday and continue until the jury is seated.

    Schwartz said that throughout the jury selection process, the lawyers will want to look for specific characteristics.

    A stance against capital punishment under any circumstances would be grounds for exclusion, though US District Judge George A. O’Toole Jr. may still want to question the candidate further, to see whether the belief is “as absolute as it sounds,” Schwartz said.

    Alternately, the government’s lawyers will also be looking for prospective jurors who say they are open-minded about imposing the death penalty, but “won’t own up to” deep reservations, said Jeanne Kempthorne, a former federal prosecutor in Boston who is in private practice in Salem. Rather than rely purely on what jurors say, prosecutors may also depend on some degree of stereotyping, such as associating social workers, psychologists, and teachers as more sympathetic to “mitigating” life circumstances likely to be raised by the defense.


    Though no single factor is telling, Kempthorne said, the lawyers will undoubtedly study each prospective juror’s age, hometown, level of education, profession, and other affiliations to weigh their ability to sentence a 21-year-old man, if convicted, to death.

    David Hoose, a Northampton-based lawyer who has handled death penalty cases, said stereotyping cannot be avoided when picking a jury, though the lawyers representing Tsarnaev have the advantage of seeing the answers to the lengthy questionnaires, and may be able to form more complex assessments of jurors. He said he has been involved in many trials in which popular conventions — military men are progovernment, or an all-white jury will not cut a break to a black defendant, for example — were turned on their heads.

    Hoose theorized that the defense team representing Tsarnaev is primarily looking for jurors who are strong willed, and will not feel “bullied” in a jury room under any circumstances. The 12-member jury must be unanimous in imposing the death penalty as well as a conviction. “They want people who will be strong in the face of opposition,” Hoose said.

    Through his experience as a jury consultant, Schwartz said, he knows the lawyers will also look to exclude anyone who has researched the case extensively and has already formed an opinion. And, he said, the lawyers will want to exclude anyone who has a personal connection to the Boston Marathon or interest in the case, though it will be up to O’Toole to define what type of connection or interest would prevent a juror from being able to have an open, impartial view.

    “There are certain kinds of experiences a person might have had for a judge to say, ‘You’re too close to this to serve,’ ” Schwartz said.


    Hank Brennan, a Boston lawyer who defended notorious gangster James “Whitey” Bulger in a sensational trial in 2013, disagrees with the notion that the questionnaires will be illuminating, and said they will only help identify people who should be excluded for obvious reasons, such as a personal connection to the bombings, or an obvious hardship.

    Brennan said the lawyers and the judge will have to meet the potential jurors in more intimate interviews to be able to see beyond their written answers, and gauge their body language and mannerisms to determine their true beliefs.

    “You’ll never be able to guess what their biases, their thoughts and prejudices are, unless you talk to them,” Brennan said. In person, he said, “you can read a lot into how someone answers the questions, and that really is the most critical thing for lawyers.”

    Tsarnaev faces 30 charges, 17 of which carry the possibility of the death penalty, in the bombing at the Marathon finish line on April 15, 2013, that killed three people and injured hundreds more. He also faces charges in the shooting death of an MIT police officer.

    Prosecutors sought the death penalty based on the “heinous” crimes, and the targeting of vulnerable victims.

    Lawyers for Tsarnaev have repeatedly asked the judge to postpone the trial and have it relocated to a court outside Boston, saying it will be impossible to pick a fair jury in the same city where the bombs went off. O’Toole has refused, saying he is sure he can select an impartial jury.

    Beginning Monday, lawyers on both sides must report to the court which prospective jurors they believe should be excluded based on the questionnaires, and which should be questioned further. They must also submit proposed questions.

    The jurors will be called back in groups of 20 for the personal interviews, starting Thursday. O’Toole will ask the questions himself, but may permit “limited follow-up questions” by defense lawyers. He said he expects to seat 12 jurors and six alternates by Jan. 26.

    “The judge’s job is not to find the best 12 people,” said Schwartz. “The judge’s job is to make sure the people who are randomly thrown into the box are appropriate and impartial, however he interprets impartiality.”

    He added, “Presumably, that’s why they brought in 1,200 people.”

    Milton J. Valencia can be reached at