I've been talking a lot on television and to the print media about United States v. Dzhokhar Tsarnaev, No. 13-cr-10200, the domestic terrorism/death penalty case just underway in United States District Court in Boston. No surprise there; from the number of satellite trucks parked outside the federal courthouse in South Boston it seems just about everyone is. For all the talking, though, it seems that not a lot of light has been shed on the process that is actually ongoing right now. That's because little media attention is usually paid to jury selection in any trial. However, in a case where a literal life or death decision is the ultimate issue, what to everyone other than the parties involved is often considered an after-thought phase of the trial, suddenly takes on a role of critical importance.
What is currently happening in Tsarnaev is called Voir Dire. Adopted from 17th century French, voir dire literally means "to speak the truth." It is defined as "a preliminary examination to determine the competency of a witness or juror." InTsarnaev, it is the general term for jury selection.
As a longtime trial attorney, who has directly participated in the voir dire process for over one hundred trials (as both a former state and federal prosecutor and now longtime criminal defense attorney), I can describe voir dire as a process in every jury case in which the parties, and judge, make every effort to select a fair, unbiased and impartial jury; despite secret hopes by the respective sides that the opposite will happen and jurors more favorably inclined to their own side/interest will instead get selected. Voir dire is essentially a screening process in which prospective jurors are vetted; undesirables and predisposed jurors are weeded out. In all cases, this is done through standard preliminary questions asked of the entire panel by the judge about an ability to be fair and to keep an open mind; willingness to follow the law as instructed; acceptance of the fact the accused is presumed innocent; and understanding that the proof remains on the prosecution throughout the trial to prove the defendant's guilt beyond a reasonable doubt. Any prospective juror who cannot so agree to these general concepts is virtually always removed from the venire (jury pool) "for cause."
All of these questions will remain central to the voir dire process in Tsarnaev. In that respect, it will be no different than jury selection in any other criminal case, either state or federal. What will be radically different — indeed so much so that Judge O'Toole is already telegraphing it to the prospective jurors, whom he will be greeting and addressing in six groups of 200 until Wednesday — is the fact that that this is a death penalty case. Because of this, the jury must be what those of us concentrating in the field of criminal law call "death qualified." What this means is that each potential juror must be open to the possibility of imposing the death penalty should Tsarnaev be convicted on any one of the 17 (of 30 total) counts in the indictment pending against him that carries a potential sentence of death by execution. This doesn't mean each potential juror agrees they will impose the death penalty — that answer on its face would be grounds for dismissal. Instead, it means there is no impediment, either philosophical, religious, or conscience-based, for a prospective juror to follow the law and impose the death penalty if certain legal and statutory requirements are met. By the same token, any juror that so agrees, must likewise be open to imposing a sentence of life in prison. While Judge O'Toole's preliminary remarks do not go into detail, as is appropriate, about the (second) death penalty trial phase and the details of aggravating vs. mitigating factors involved, the fact that he incorporated comments about Tsarnaev "being a death penalty case" into his preliminary remarks makes clear how critical it is that jurors focus their individual consciences on the ultimate issue of life vs. death immediately, before the actual vetting process gets underway — a process of self-examination that is of even more importance in a state in which the death penalty was abolished as punishment in state courts (but not federal) some thirty years ago.
So what is going on logistically in the courthouse in Tsarnaev this week, and how is it different than jury selection conducted in other federal cases? Well, the death penalty distinction aside, Judge O'Toole is following the logistical model that has been tested and proven in several recent high profile federal cases in Boston, the last two being United States v. James "Whitey" Bulger, No. 1:99-cr-10371, and United States v. John J. O'Brien, et al., No. 4:12-cr-40026. Having participated, myself, in jury selection in the latter, I am intimately familiar with how it works.
Generally, a large pool of prospective jurors, drawn from all over Eastern Massachusetts (literally from Provincetown all the way up to Methuen and to the west towards Worcester), is brought into the jury room. There, they are introduced to the judge, the lawyers, and the defendant (Mr. Tsarnaev is present — without handcuffs or shackles). The judge makes his preliminary remarks, much as I have already mentioned, to those assembled, and then each is given their own copy of a typed multi-page, multi-question, juror questionnaire and asked to retreat to a "quiet corner," fill it out (truthfully, completely), hand it in, and then leave the courthouse without discussing either the contents or their answers with anyone. Once this is done, the jurors are free to leave; and in this case, have been asked not to return until next Monday.
In Tsarnaev, this same process will be repeated six times – two times a day, for groups of two hundred (200) prospective jurors, until a total of twelve hundred (1,200) have completed the process. In an ordinary federal criminal case, a pool of approximately one hundred (100) to one hundred fifty (150) jurors is questioned. In a higher profile case like O'Brien, the prospective pool was closer to two hundred (200) to two hundred fifty (250). In the Bulger case, some seven hundred fifty (750) prospective jurors were summonsed, in view of the over-abundance of pretrial publicity and media exposure his case had generated. (Remember, the standard isn't "have you read or heard about the case/defendant before?," it's can you be fair and impartial" and/or "have you already formed an opinion — or has what you've read or seen influenced your opinion?") That Judge O'Toole has elected to summons a pool nearly twice as large as Bulger, twelve hundred (1,200) overall, is indicative of three things: 1) there's even more intense pretrial publicity in this case; 2) the fact it is a death penalty case and a large proportion of prospective jurors will, demographically, be predisposed against it; and 3) his firm belief that from a pool of some "5 million" potential jurors in the state, the parties will eventually be able to select a fair and impartial jury of twelve (12) regular jurors and six (6) alternates.
What's in these mysterious juror questionnaires? Well, no one knows for sure because Judge O'Toole has instructed every prospective juror, and the parties, not to disclose the contents to any outside parties, at the risk of being held in contempt. However, from personal experience with jury selection, I can tell you the questions likely include: background questions about residence; marital status; education; employment and spouse/partner employment. There will also be questions about physical disability[ies] and/or hardships that would make it difficult to "sit" for a projected 4 – 6 months. There will be questions about familiarity with any of the parties; government/law enforcement employment and/or legal/law firm employment. There will be questions about acquaintances with any victim(s) or victims' family and (likely) questions about knowing anyone "affected" by the Marathon Bombing and (probably) questions about familiarity with, and personal participation in, the Boston Marathon. There will be questions about bias for or against police/law enforcement witnesses and a series of questions about the general principles/concepts of the law. There will be extensive questions about exposure to pretrial publicity, including manner, means and frequency and/or whether it has resulted in bias, prejudice and/or pre-formed opinions or disposition. There will also probably be questions about Section 8 housing (which the Tsarnaev family apparently received); immigration; and/or the Muslim religion, and (possibly) Jihadism. And of course, there will be questions about personal feelings and opinions on the death penalty; all designed to ensure a "death qualified" jury.
Why all the secrecy? First and foremost, juror information is always private and confidential. However, Judge O'Toole's reasons for wanting the questions themselves to remain confidential is because he doesn't want jurors coming in with contrived or pre-formed answers, especially those calculated to avoid jury service. He realizes the process of selecting a fair and impartial jury will be hard enough as it is; and he could well use up the majority of available jurors getting there. The last thing he wants is for reluctant and/or recalcitrant potential jurors to have a head start and/or outside help and prompting on how to get out of jury service — especially in a case as presumably long as this one will be.
What happens once all 1,200 questionnaires have been completed? The next step will be much the same as the parties did in Bulger and we did in O'Brien. Each respective side (defense and prosecution) will "burn the midnight oil" trying to cull out a list of jurors whose answers, any answer, disqualifies them as a matter of "cause." This Friday, both sides will present to Judge O'Toole a "master list" of all agreed to "cause challenges." In all likelihood, and to promote efficiency, Judge O'Toole will likely concur and dismiss all jurors both sides have discussed and agree should be excused for cause. After that, there will be a discussion of prospective jurors whom one side believes should be dismissed for cause, where the other side disagrees — all outside the presence of the prospective jurors. Judge O'Toole will either decide those issues on the basis of argument or defer a decision pending individual voir dire (questioning) of the juror in issue.
Once this is done, general questions will again be put to those remaining in the jury pool, as a whole. Those with affirmative answers/issues either not raised in the questionnaire, deferred to this further stage of voir dire, or who upon reflection have changed, or want to change prior answers, will likely be questioned individually by Judge O'Toole, outside the presence of other potential jurors. During this questioning, the parties will be listening intently, requesting that the judge press them further and/or stating any objections to seating them.
After this, if Judge O'Toole continues to follow standard procedure, he will proceed to seating twelve (12) individual jurors from those "left in the pool" who have, thus far, "made the cut." Once "twelve are in the box," the parties exercise what are formally called peremptory challenges, but what those of us experienced in jury selection call "no reason/no cause" challenges. In a federal death penalty case, each side has twenty (20) no reason challenges, for a total of forty (40). Neither side has to use them all, and there is no requirement to use any of them at all. The government goes first, and can, for example, strike all twelve seated jurors for no reason at all (or simply because a juror doesn't "feel" right). If they do, they will have eight peremptory challenges left. More likely than not, the government will use less on the first twelve seated jurors, and express satisfaction with at least a few who are seated, which then slides the option to the defense, who go through the same process. In addition, each side gets another three peremptory challenges when six alternate jurors are selected. However, these three challenges may only be used on alternate jurors, and are not available to supplement the original twenty for "regular" jurors. As one can surmise, this stage is a real "chess match" with both sides trying to outmaneuver the other and, if possible, wind up with more "no reason" challenges left than the other side in order to at least seat a juror, or jurors, they feel might be more favorably inclined to "their side." Because peremptory challenges are exhaustible, and once all forty are used, whoever's left seated becomes the jury, parties are always agitating to be granted several more or reiterating causation challenges previously denied.
Whether it's in the anticipated three weeks, or longer, or whether we get there at all — both Judge O'Toole and the 1st Circuit Court of Appeals have left open the possibility of revisiting previously denied change of venue motions if the process itself proves futile in terms of bias, prejudice, or death penalty disqualification — that's how the jury will be selected in Tsarnaev. At least that's what's supposed to happen, but with emotions running high and the prospect of a very lengthy trial set to begin in earnest, I wouldn't be surprised if the best laid plans go slightly awry, despite the fact that Judge O'Toole generally runs a tight courtroom.
About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law, including participating in nearly 100 jury selections, to defend clients accused of all crimes in state and federal courts, in Massachusetts, throughout New England, and elsewhere in the United States. Website: bradbaileylaw.com
About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law, including participating in nearly 100 jury selections, to defend clients accused of all crimes in state and federal courts, in Massachusetts, throughout New England, and elsewhere in the United States. Website: bradbaileylaw.com