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Richard family’s stance would have influenced Tsarnaev juror

Kevan Fagan, 23, spoke about his experience serving on the jury in the Dzhokhar Tsarnaev trial.
Kevan Fagan, 23, spoke about his experience serving on the jury in the Dzhokhar Tsarnaev trial.Robin Lubbock/WBUR/WBUR

One of the 12 jurors who agreed to sentence Boston Marathon bomber Dzhokhar Tsarnaev to death said he “probably” would have changed his mind if he had known that some victims opposed capital punishment in the case.

During an interview with WBUR that aired on Tuesday, Kevan Fagan, 23, who is the only juror to speak publicly and is also set to release an online book next month about his experience on the jury, said he did not know that the parents of 8-year-old Martin Richard were among those who opposed the death penalty for Tsarnaev and that information would likely have influenced him.

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“If I had known that, I probably — I probably would change my vote. But then again, if I knew that I wouldn’t be on the jury either,” said Fagan, referring to the judge’s orders not to read about the case during the trial.

Fagan, who has worked as a part-time employee at Best Buy, also said he saw Tsarnaev as a “disheveled, pale, frail for his age man” and that he was “hard to read” in court.

He said he believed Tsarnaev’s older brother influenced his actions, but Tsarnaev “still chose to leave that bomb there for about 4½ minutes.”

“So it’s hard to get away from that and the damage and strife that it caused,” Fagan said.

Jurors’ comments after high-profile criminal cases can provide a fascinating window into high-stakes deliberations and are often of particular interest to defense attorneys seeking to overturn verdicts. For example, even though Tsarnaev’s defense attorneys opposed many efforts by the media to gain access to records about the 22-year-old Tsarnaev, they have publicly supported The Boston Globe’s motion asking the judge to release the identities of all 12 jurors who deliberated in the case.

On Monday, US District Court Judge George A. O’Toole Jr. denied the Globe’s motion, saying he will eventually make the names public but is withholding the list for now while reviewing defense motions to overturn the verdict — the first of what are likely to be months, if not years, of appeals in the case.

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One legal analyst said he does not think Fagan’s comments will play a pivotal role in any appeal because the judge was on firm legal ground in keeping victims and families from testifying about their views on the death penalty.

Daniel Medwed, a Northeastern University law professor who focuses on criminal law and wrongful convictions, said there are well-established legal opinions that say the personal death penalty views of victims are too inflammatory — and not relevant — to the jury’s final deliberations.

He said Fagan’s recent statements, indicating that he could have been swayed by what victims’ families said, “confirms the validity” of such legal rulings.

Medwed also said that this juror’s comments, which come as he is about to release an online book, raise questions about jurors’ motivations to serve and speak out.

In legal circles, these jurors are often called “rogue jurors,” and lawyers often worry that ulterior motives, such as money or fame, may corrupt the process.

“The fact that he’s selling a book makes me discount what he says,” Medwed said.

Fagan has spoken publicly before. He initially gave an interview to WBZ-TV in mid-August, though he allowed the reporter only to identify him as Juror 83, which was his number in court.

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On Tuesday, Fagan gave an interview with WBUR radio, allowing his full name and photo to be published, and he revealed himself as Juror 83.

Fagan declined to comment when reached by the Globe.

What jurors knew about the Marathon bombing case before and during the trial remains an ongoing issue for the lawyers for Tsarnaev, who is being held at a federal supermax prison in Colorado pending his appeals.

In its effort to get a new trial, the defense team has requested the authority to review the social media accounts of jurors and their families to glean what they knew and how much publicity they were exposed to.

The judge has said he wants to clear up these issues and other “post-trial issues” in his courtroom before he releases the jury list.

The issue of a tainted juror has led to a death penalty verdict being overturned in another Boston case. Gary Lee Sampson, now 55, pleaded guilty a decade ago to the 2001 carjacking and killing of three people in Massachusetts and New Hampshire, and a federal jury sentenced him to death.

However, a judge ordered a new sentencing trial in 2011 after finding that one of the original jurors who decided Sampson’s sentence had lied on a questionnaire about her past experiences with law enforcement.

The judge said he would have excluded her from the trial had he known, and a federal Appeals Court upheld his decision.

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A new sentencing trial is now slated to begin next month.


Patricia Wen can be reached at patricia.wen@globe.com. Follow her on Twitter at @GlobePatty.