Nguyen: O’Toole Has Hands Full in Tsarnaev Case

Wednesday, January 28, 2015

Aivi Nguyen, GoLocal Worcester MINDSETTER™

Aivi Nguyen

Is it possible for 21-year-old Dzhokhar Tsarnaev, otherwise known as the Boston Marathon bomber, to find a jury in Boston? Judge George O’Toole had scheduled opening arguments to begin on Monday, but they have been delayed because it is taking so long to find a jury. It took the judge 6 days to question around 80 potential jurors, when it was anticipated that he would be able to question approximately 40 per day.

So what is the hold up? Well, there are two big factors at play here. One, everyone in Boston hates Tsarnaev. Two, most people in Massachusetts do not believe in the death penalty. Think about that for a second. The judge must identify 12 people who have no opinion on Tsarnaev and who would be cool with choosing death if Tsarnaev is found guilty. I am not sure I know ONE person who can sit on that jury.

It’s not news that Bostonians don’t have warm and fuzzy feelings for Tsarnaev. His defense team has already been denied twice in their attempts to get the trial moved out of Boston. They tried again on Thursday, pointing to this long jury selection process as a sort of “I told you so” about the difficulty in identifying unbiased jurors.

The potential jurors were asked to fill out questionnaires as part of the selection process. The results of the questionnaires are telling, with 68% of potential jurors indicating that they already believe Tsarnaev is guilty and 69% having some connection or allegiance to the people, places or events involved in the case. That’s bad. But, if you think about it, there is probably nowhere in Massachusetts that would produce questionnaire results much different than Boston’s. There are federal courts in Springfield and Worcester. I’m pretty sure Springfieldians and Worcesterites also hate Tsarnaev, so changing venues would probably not make things easier.

And then there’s that whole death penalty thing. The Commonwealth abolished the death penalty in 1984, and had not executed a prisoner since 1947. It’s just not Massachusetts’ style. However, the federal government reinstated its death penalty in 1988, and Tsarnaev’s trial is a federal one.

The way the trial will work is the jury will first decide if Tsarnaev is guilty or not guilty. If he is found guilty of any of the 17 charges he faces where death is a possible sentence, the jury will then decide whether he will serve a life sentence without the possibility of parole or if he will be put to death. In that scenario, the jury will literally have his life in their hands. Heavy stuff, especially for liberal Massachusetts residents. Many people are probably telling the judge that they simply would never ever impose death on someone, which disqualifies them as jurors. And they probably already have an opinion of Tsarnaev, which also disqualifies them. Double whammy.

It will be interesting to see what the jury will ultimately look like when this process is over. More to come.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.