The defense team argues that out of 1,373 prospective jurors, 68 percent believe Tsarnaev is guilty of taking part in the Boston Marathon Bombing. If one adds to that personal connections or allegiances to people affected by the terrorist attack, the number of jurors who already have a reason to vote for guilty leaps to 85 percent, according to a motion filed by the defense.
But what’s even more unusual is the reaction of U.S. District Judge George O’Toole to the motion, which was filed publicly and disseminated widely on social media: “though the damage already may have been done by the defendant’s public filing of confidential material, I have ordered the memorandum in support of the defendant’s motion to be placed under seal until further order.”
The defense document was part of a third attempt to get the trial moved out of Boston. O’Toole has refused all three efforts, and the latest one is almost certainly about laying the groundwork for an appeal. Earlier defense attempts tried to show that their client couldn’t get a fair trial because the public has been bombarded by law enforcement leaks and pretrial publicity.
Judge, You’re Killing Me
Arguing that Tsarnaev can’t get a fair trial in a city that was traumatized 15 months ago by the bombing and its aftermath, defense lawyers cited the revealing responses of prospective jurors to questions put to them by prosecutors, defense lawyers and the judge himself.
Many prospective jurors were clearly confused about the fundamental legal principle that a defendant is presumed innocent until proven guilty. Day by day O’Toole has grown more assertive in explaining to prospective jurors that the burden of proof rests entirely with the prosecution, and that the defense does not have to persuade anybody of anything.
Here’s a selection of some of the responses prospective jurors have given:
• One prospective juror, a social worker at Massachusetts General Hospital, laughed out loud at the judge. “You’re killing me,” she told the judge, her voice rising. “I can’t imagine not being convinced by the evidence.”
• Another wrote on his juror questionnaire: “for this case I think a public execution would be appropriate, preferably by bomb at the finish line of the marathon.”
• One woman said she would vote automatically for the death penalty if Tsarnaev is found guilty, ignoring the judge’s instructions to weigh aggravating and mitigating circumstances.
The jury selection process typically reveals how little understanding many citizens have of the rule that all defendants are presumed innocent until the end of a trial. But in their fight to get this trial moved out of the Boston area, the defense team has repeatedly argued that the number of local citizens able to make this assumption about Tsarnaev is vanishingly small.
A federal death-penalty trial has two phases. In the first, a jury is asked to decide if the defendant is guilty or not guilty. If he is found guilty, the same jury must then decide whether to impose the death penalty–or some lesser sentence, based on the presentation of “mitigating circumstances” by the defense.
Jury selection is still plowing forward. On Friday, Jan. 23, O’Toole questioned jurors individually for a sixth day.
The court proceedings so far have been conducted under strict rules intended to guard the identity of prospective jurors: they are never identified by name, only by number; the public has been barred from the courtroom, and the judge even tried to ban all members of the media before agreeing to let in two pool reporters. Other media representatives must watch the show from nearby rooms via an audio-video feed controlled by O’Toole.
Opening arguments in the case, in which the prosecution has said it was will seek the death penalty if Tsarnaev is convicted, have been postponed indefinitely from a scheduled start of Jan. 26.
Defense attorney David Bruck put it this way: “The government and the court [have] been asking jurors if they can suspend opinion of guilt long enough for government to prove its case. For many,” Bruck said, “the trial of guilt or innocence is over.