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Tsarnaev jury’s built-in bias

A potential juror enters the Moakley courthouse Jan. 5.reuters

The jurors who ultimately decide Dzhokhar Tsarnaev’s fate will begin their task with a shared bias — their willingness to consider capital punishment.

Anyone who categorically opposes the death penalty will be excluded from serving as a juror in the case against the alleged Boston Marathon bomber. The jury selection process — standard for capital cases — produces a so-call “death qualified” jury — and virtually guarantees a defendant in this trial who will not be judged by a jury of his peers.

Yes, this is especially true in Massachusetts, which does not have a state-sanctioned death penalty. In short, Bay Staters who oppose the ultimate punishment won’t be chosen as jurors, unless they lie about their core belief.

But research compiled by websites like capitalpunishmentcontext.org suggests that a “death qualified” jury is also less representative of the general population in the United States as a whole. Women and African Americans, for example, are more opposed to the death penalty than white men.


So excluding those who don’t support the death penalty affects the makeup of the panel on several levels. Who is left out? A 2005 Death Penalty Information Center Report puts it this way:

“Catholics who have heeded their church’s call to end the death penalty, believers of all stripes who find the death penalty immoral, conservatives who hold that the government should not be trusted with so much power, and liberals who will not apply capital punishment because it is not meted out fairly — all will be eliminated if they adhere to these views. They will not be able to serve even in the guilt-innocence phase of the trial, where one’s view on the death penalty should be irrelevant.”

Still, the Supreme Court backs juries crafted with this qualification, ruling that defendants must demonstrate their particular jury was biased. As criminal defense and civil liberties lawyer Harvey Silverglate sees it, the “death qualified” jury will prevail as long as the death penalty exists. Without it, he argues, “The death penalty would almost never be imposed, since in Massachusetts, any representative jury would necessarily have at least some death penalty opponents, and it takes only one holdout to defeat a death verdict.”


Regarding Tsarnaev’s fate, a September 2013 Boston Globe poll showed 57 percent of those surveyed favored a life sentence; yet in a July 2014 Boston Globe poll, 62 percent supported the decision to seek the death penalty. Shouldn’t that ambivalence be reflected by jurors who don’t agree with capital punishment?

We won’t find out in the Tsarnaev trial. Jury selection in the case began this week, after a panel of federal appeals court judges denied, 2-1, a defense motion to move or postpone the trial. First Circuit Appeals Court Judge Juan R. Torruella — the lone dissenter — found legitimate cause to question the ability to assemble a fair-minded jury in Boston.

“Tsarnaev’s argument that the entire city of Boston and its surrounding areas was victimized — as evidenced by the city’s virtual lockdown and the images of SWAT team members roaming the streets and knocking door-to-door in Watertown — is compelling,” wrote Torruella.

The two other judges were unconvinced, despite the 1996 ruling in United States v. McVeigh, which granted a change of venue in the Oklahoma City bombing trial, on grounds that the “emotional burden of the explosion and its consequences” created “so great a prejudice” defendants “cannot obtain a fair and impartial trial. “


Now, with a Boston trial, Tsarnaev will face jurors who experienced what Torruella described in his dissent — and he will be judged only by jurors who also support the death penalty.

As Carol Rose, executive director of the ACLU of Massachusetts, writes, “This trial won’t really be about Tsarnaev’s guilt or innocence; the evidence against him is overwhelming. The trial will be about us — about the kind of society in which we want to live and whether we will be ruled by our fears or by our values.”

The evidence, after all, features the chilling video of Tsarnaev putting down one of two backpacks that exploded at the Marathon finish line 20 seconds later. Bystanders in the video included 8-year-old Martin Richard, one of three people who died in the explosion.

The Tsarnaev defense team is left with the job of somehow humanizing the monster shown in the video. Given the pre-determined makeup of a “death qualified jury,” the defense will be making its case for mercy to a tough audience.

Joan Vennochi can be reached at vennochi@globe.com. Follow her on Twitter @Joan_Vennochi.