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Nguyen: Boston Marathon Bomber’s Jury: How Did We Get Here?

Thursday, March 05, 2015


After two long and snowy months, a jury has finally been selected in the trial of Dzhokhar Tsarnaev, a/k/a the Boston Marathon Bomber.

On Tuesday, 18 people were seated in the jury box, 12 jurors and 6 alternates, 8 men and 10 women. It has been reported that the jury appears to be all white (with one man of some Iranian descent) and with most having middle-class job skills, such as, air traffic controller, auditor and executive assistant to a managing partner at a law firm.

The final jury selection came on the heels of yet another motion by Tsarnaev’s defense team to move the trial to a different venue, outside of Massachusetts, filed on Monday. This motion, like its predecessors, was denied. As I previously reported, the jury selection process in this case has been painfully arduous because it was difficult to identify impartial jurors. Up until the final hour of jury selection, the defense argued that there was no way Tsarnaev could have an impartial jury in Massachusetts.

It’s hard to say whether the defense was right.

The pool started at 1,373 potential jurors, who filled out lengthy written questionnaires and who were interviewed by the judge.

That number was whittled down by dismissing jurors for “cause.” A potential juror was dismissed for “cause” if the judge determined that the individual could not fairly and impartially decide the case based only on the evidence presented at court.

Think about how I said that. I DIDN’T say that a potential juror was dismissed for “cause” if the judge determined that he/she had any prior opinion of Tsarnaev or if he/she opposed the death penalty. No. Because a person would have to live under a rock (where Sam Smith’s “Stay With Me” is never played) to not have formed any opinion at all about Tsarnaev and there would be no one left if the judge dismissed everyone under that category.

So as long as a potential juror could put any personal feelings aside and was capable of deciding on the facts of the case presented at the trial, he/she was good to go. Easy, right? Wrong.

Of those 1,373, only 75 were provisionally qualified to serve as jurors. Break that down. That’s less than 6%. Less than 6 out of every 100 people could pass the first stage of being on this jury.

To make matters worse, Tsarnaev’s team didn’t believe that even those 75 individuals were qualified to serve on the jury, which was the subject of Monday’s motion. Why? Because, of those 75 people, 42 had some connection to the events, people or places involved in the case, 23 had already formed the opinion that Tsarnaev is guilty and 48 of the 75 fell under both those categories! Like I said above, the judge just needed to determine that the potential juror could fairly and impartially decide the case, despite any of his/her personal feelings. Clearly, the defense did not think that was enough.

So, according to my math, the defense only thought 10 of the 75 were qualified. But you just said there are 18 people sitting in the jury box, AiVi. . .

To make matters even more interesting, there is a very good chance that the prosecution struck some of the 10 potential jurors that the defense liked, through preemptory challenges. A preemptory challenge is a tool that each side gets, to dismiss a juror who was not dismissed for cause. A lawyer doesn’t need to give any reason why he/she is dismissing the juror (though it can’t be for outright discriminatory reasons). Here, each side got 20 preemptory challenges for the 12 jurors and 3 for the 6 alternates. That means the prosecution had 23 chances to dismiss any of the 10 jurors that the defense may have deemed qualified.

So what are the odds that there is a totally impartial jury ready to hear opening statements Wednesday morning? I’d like to think the chances are very high, because I believe in our justice system, but who can really tell at this point?

What are the odds that Tsarnaev’s team will appeal if he is convicted, based on the argument that the jury was biased? Bet the farm.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester. For more information on this case, check out Aivi's article "Nguyen: O’Toole Has Hands Full in Tsarnaev Case."


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