Court of Appeals to hear oral arguments February 19th in Tsarnaev case

February 12, 2015

The First Circuit Court of Appeals has scheduled oral arguments next Thursday, February 19th, to consider Dzhokhar Tsarnaev’s request to move his death penalty trial out of Boston. United States District Court Judge George A. O’Toole has denied three defense motions to move the trial and that prompted the defense to go to the appellate court. Meanwhile, jury selection will continue.

The New York Times reports,

In making their requests to move the trial, defense lawyers had cited the attitudes of prospective jurors. They said that of the 1,373 prospective jurors who filled out questionnaires, 68 percent said they already believed Mr. Tsarnaev was guilty and 69 percent had said they had a personal connection to the case.

They also cited the outpouring of emotion in Boston on Jan. 28 when a man shoveled off the marathon finish line in the midst of a blizzard. The Boston Athletic Association, which oversees the marathon, issued a statement saying that the act “proves that — in Boston — everyone owns the marathon.”

The defense seized on this as evidence of bias. “Such remarkable and enduring displays of public solidarity in the wake of the Marathon bombings are laudable,” the defense wrote. “But jurors drawn from the community where ‘everyone owns the Marathon’ cannot be dispassionate and impartial.”

Judge O’Toole and the lawyers have individually questioned 173 potential jurors so far in an attempt to create a pool of 60 – 70 potential jurors who have been passed for cause by both sides (i.e., people who claim that they can put aside what they know about the case and any opinions they may have formed about Tsarnaev’s guilt and impartially decide the case solely on the basis of the evidence introduced in court and the jury instructions). Judge O’Toole wants a pool that large before the lawyers exercise their peremptory challenges. Unlike challenges for cause that must be supported by a reason why the potential juror cannot be fair and impartial, peremptory challenges do not require a reason. Each side has 20 peremptory challenges, plus 3 for the 6 alternates. If both sides exercise their full complement of peremptory challenges, 46 potential jurors could be disqualified. To be on the safe side, the pool should consist of 64 potential jurors. They are not there yet, despite a month of jury selection and that demonstrates how tainted the potential jurors are by the extensive pretrial publicity and their feelings about the case.

In addition, a large percentage of the potential jurors would either automatically impose the death penalty if Tsarnaev is convicted or automatically refuse to impose it because they are opposed to it. Only people who can agree to balance evidence in aggravation against evidence in mitigation can serve on the jury. This is called the death qualification process.

I do not believe it’s possible to select a fair and impartial death qualified jury in Boston and I would grant the defense motion for a change of venue, if I were the judge. Judge O’Toole disagrees. Now a three-judge panel will decide whether to keep it in Boston or move it to another location.


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


First Do No Harm

December 26, 2014

Friday, December 26, 2014

Good evening:

First, do no harm.

The death penalty trial of Dzhokhar Tsarnaev is scheduled to begin in federal court in Boston on Monday, January 5, 2015. This is the so-called Boston Marathon Bomber case (BMB). I say “is scheduled to begin” because the defense has requested (1) a change of venue due to prejudicial pretrial publicity and (2) a continuance of the trial date until next September to review voluminous discovery that the government recently disclosed to the defense. You can reasonably expect both motions will be denied because the jury summons have already been sent out.

Both motions were filed to protect the record should Tsarnaev be convicted and appeal. For example, if he were convicted and his lawyers had not filed these motions, he would be barred from claiming on appeal that he was denied a fair trial due to prejudicial pretrial publicity and being forced to trial in January when his lawyers were not prepared.

Although both motions were previously raised and denied in September, it’s not unusual for them to be refiled because community prejudice toward a defendant can change over time as can the necessity for a continuance when discovery is provided to the defense at the last minute.

The Boston Globe describes the defense motion for a continuance,

Just last week, prosecutors turned over a witness list with more than 730 names, and identified 1,238 exhibits and 413 digital files that could be used as evidence, the defense lawyers complained. The government provided a trove of other digital records, the lawyers said.

“To commence trial as scheduled on Jan. 5 would threaten both the fairness and finality of the proceedings,” the defense team argued. They have asked that the case be postponed until September.

“It [is] impossible for the defense to digest this information, much less attempt to pursue investigative leads it may suggest, in time to make effective use of it at trial.”

The Boston Herald reports the government’s response,

Prosecutors in the Boston Marathon bombing case called accused terrorist Dzhokhar Tsarnaev’s renewed push for a delay in the Jan. 5 trial just more complaints from a defendant who faces the death penalty.

In a Christmas Eve filing, federal prosecutors said a long list of law enforcement investigators ready to take the stand is not unexpected.

“Tsarnaev can hardly have been surprised by a witness list containing a large number of evidence-handling witnesses,” the U.S. Attorney’s Office in Boston wrote in a motion fighting any delay.

“In responding to Tsarnaev’s continuing requests for information, the vast bulk of which is not required by the rules of discovery, the government has gone over and above anything the law requires,” prosecutors added. “Tsarnaev continues to complain about the volume of case-related information provided by the government even as he demands more and more of it.

Welcome to trial by ambush. This is how they do you in federal court. A defense lawyer can’t survive there unless he or she can read extremely fast and recall everything while going without sleep for days. The pressure to be perfect is enormous because any mistake, no matter how minor, could be the difference between the client living or dying.

First, do no harm.

The defense also filed an extremely unusual motion worth noting and discussing. They titled it, Motion to Protect Defendant from Prejudicial Effects of “Supporters” Demonstrations at Courthouse. I have never seen or heard of a motion like this. Most defendants in death penalty cases don’t have many supporters. They come and go quietly.

The defense team apparently is concerned about the following incident and they do not want prospective jurors exposed to similar incidents.

Shortly before the beginning of the final pretrial conference in his case on December 18, 2014, in the immediate vicinity of the courthouse, a group of demonstrators claiming to be “supporters” of the defendant were involved in a confrontation with members of the public, including a man who was severely injured by a bomb at the Boston Marathon on April 15, 2013. The demonstrators held signs and shouted statements to the effect, among other things, that the bombing and the survivors’ injuries were staged. Two news reports described the scene as follows:

His supporters, who claim Tsarnaev was set up and is actually innocent, massed outside the court building armed with provocative signs. Two women caught the eye of marathon bombing survivor Marc Fucarile, who limped by with a cane needed after he lost his right leg in the carnage. “That’s trickery?” Fucarile fumed as he lifted his prosthetic leg to show the damage Tsarnaev is accused of doing to score of innocents.

I think the word ‘aghast’ probably captures the defense reaction.

God only knows how many prospective jurors heard about this incident or read about it on social media. Judge O’Toole, to whom this case is preassigned, and counsel are going to have to voir dire (question) prospective jurors about it without actually mentioning it, just in case they do not already know about it. Better not to tell them about it, if they don’t already know. Jurors should be questioned individually out of the presence of other prospective jurors. That way their answers will not poison others.

Defense counsel expressed their concern as follows:

The continuing presence in the immediate vicinity of the courthouse entranceways of demonstrators–including those who gather to challenge as fabricated the injuries suffered by the survivors as they attempt to attend the proceedings–poses a grave threat to the fairness of the defendant’s trial. Beginning on January 5, prospective jurors and witnesses will be required to enter the courthouse through the same entranceways. Survivors, jurors, witnesses, and members of the public must be able to attend court without being assaulted by inflammatory accusations from any source. If they cannot,the fairness of the defendant’s trial is likely to be gravely harmed, in part because of the natural but false inference that the defendant and his counsel agree with the outrageous conspiracy theories that are being so vociferously advanced by demonstrators claiming to be the defendant’s “supporters.”

This motion is a very clear indication that the defense trial strategy will not involve presenting a conspiracy theory.

First, do no harm.

A life is at stake.

DISCLOSURE: I was a felony criminal defense lawyer for 30 years specializing in death-penalty defense, forensics and freeing the innocent from wrongful convictions. I also taught Criminal Law, Criminal Procedure, Wrongful Convictions and Trial Advocacy in law school. I have known Judy Clarke for close to 20 years dating back to when we were members of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL).


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