Boston bombing trial a go

[Guinevere]

Jury selection starts this morning from a group of 1200! called to appear.

Last minute requests for delays and a new venue were rejected by the First Circuit. Should be an interesting several months ahead.

http://www.boston.com/news/local/massac ... story.html

[Lord Jim]

Glad to see this is finally getting under way...

Guin, since the death penalty is on the table in this case, I would assume that one of the questions that will be on the initial questionnaire for potential jurors will be whether or not they could vote to impose it. I know you're a staunch opponent of the death penalty; would you be able to do that?

[Guinevere]

Interesting question LJ -- esp since I just finished a courtroom drama written by a MA federal district court judge about a federal death penalty case -- and he himself had sincere doubts.

So I'd have to think about whether I would operate -- as the judge explained in his novel -- as a part of the duly constituted system, or would my personal beliefs override that process. It's harder than it sounds, since by profession I'm a part of that system and I have sworn to uphold the Constitution, the laws of the United States, and of the Commonwealth of Massachusetts. Although in my daily practice, I am not often called upon to put my personal beliefs aside, I do try hard to keep those beliefs from influencing the advice I give my clients (of course, no one can entirely keep their life experience and core values from influencing their mode of analysis, no matter how hard they try).

I would have no problem putting the government to their proofs, to the reasonable doubt standard, despite all the pre-trial publicity. But I think, in the end, despite my oaths -- and do not say this lightly because how much those oaths mean to me --- I could not in good conscience vote to impose the death penalty on any human being, no matter how heinous the crime. So I would answer the questionnaire truthfully --- and decline to be able to impose death.

A bit of a moot point, too. Lawyers don't let lawyers like me become jurors

[TPFKA@W]

I have done a 180 on the DP since DNA evidence has exonerated a few people. Once dead you can't make things right.

[Big RR]

Guin--do you honestly feel you're violating some oath you've taken as an attorney if you cannot impose the death penalty as a juror? True, as attorneys we frequently are called upon to "put our personal beliefs aside", but we also have the option of declining any representation that we feel we cannot pursue zealously. To me, the death penalty is just like that, it is something I could not consider imposing (at least rationally, if someone did something to a person close to me, I'd be just as filled with a desire for revenge as any other person), which is why I could not serve on a jury to consider it. Personally, to me it would be more a violation of those oaths to serve on such a jury by saying I could consider it when I know I could not (perhaps to assure that there would be a dissenting voice to the DP on the jury). It's kind of like your example of putting the state to its proofs; while I have never had a time where I think the pretrial publicity would have made that impossible for me, I think it could occur, and at that time I would be serving my oath better by saying I could not judge the case fairly.

[Guinevere]

BigRR - true -- I guess I was looking at it through the lens that since the death penalty is allowed under our Constitution, if I was truly supporting and defending the Constitution, then I should be able to be objective about imposing that penalty. But I know I couldn't, and wouldn't want to, so I'd say so in the questionnaire.

[Guinevere]

On to day two of jury selection - where another 400 potential jurors (200 in the morning session and 200 in the afternoon session) will meet the court, the defendant, listen to basic instruction from the judge, and fill out the questionnaire. The questionnaire itself is sealed, so we don't know for sure what questions they are being asked. Tomorrow, the last group of 400 will go through the same process.

In the meantime, the lawyers and clerks will be going through the responses, and having to come up with the next subset of the 1200. Jurors who make it through this round will come back next Thursday the 15th for more voir dire - this time usually more specific questions related to the case, the ability to serve, knowledge of the witnesses, parties, judge, and more. In Massachusetts the judge, not the lawyers, asks the questions. The size of this next group will tell us a lot about whether it really is going to be possible to seat a jury from eastern Massachusetts for this case. I certainly hope so - cases are supposed to be tried in the jurisdictions where the crime(s) took place.

The court expects to have jury selection completed and openings to begin on Monday, January 26.

[Lord Jim]

Guin, this is a little confusing to me:

The judge summoned 3,000 people to the federal courthouse on Boston's inner harbor, an unusually large jury pool. In the first phase of jury selection, at least 1,200 are expected to fill out questionnaires over three days this week.

http://www.nbcnews.com/news/crime-court ... on-n277561

Are they going to first go through the group that you're in and and see if the can come up with the the 12 jurors and 6 alternates they plan to seat, and then go go on to the rest of the 3000 if they can't do that, or are they splitting the 3000 into smaller groups, with another group starting the winnowing process next week?

[Guinevere]

Not exactly. Summonses to 3000 meant 1200 appeared. So they are going through all of the 1200 in groups of 400/day, split into two groups of 2. Monday AM - 200 go to court, answer the questionnaires. Monday PM - next 200 do the same. Tuesday AM - next 200. Tuesday PM - next 200. Wednesday AM - next 200. Wednesday PM - next 200.

From those 1200 questionnaire responses, they will bring back --- who knows how many -- and go to the next level of void dire. That 1200 will be winnowed out based on their responses to the questions - and as I said above, we don't know what those questions are. So whatever subset i agreed upon comes back starting on the 15th, for the next round of questioning. This is typically where jurors come into the courtroom in smaller groups (say 12-18) and the judge asks them agreed-upon questions. The lawyers then go to sidebar and ask for jurors to be removed "for cause" - lawyer has to give a good reason why they believe the juror cannot make a fair decision about the case, and the judge can allow it, or deny it. Lawyers can make an unlimited number of "cause" challenges. Lawyers can also use their peremptory challenges -- which allow them to strike a juror for no reason at all (but it cannot be for a bad reason, for example, you cannot strike all minority jurors) and each side will have a set number of peremptory challenges to use (not yet published in this case as far as I've read to date).

At least that's typically how these things go. This case is not entirely typical, but one of the comforts of the process is it is supposed to be substantially the same for every defendant. One of the difficult pieces here is that many/most -- far too many in my opinion --- of the pleadings filed in the case have been filed under seal, so information is scarce. I'm pretty sure at least one if not more news organizations are asking for those orders to be lifted --- at the least once a jury is seated. This is, after all, a public and open process.

[Lord Jim]

Ah, they had to send out 3000 summonses to get 1200 to show up; that makes sense. (A lot of the news media is doing a very poor job of reporting that; they're making it sound like there are 3000 actual prospective jurors, when there aren't)

Thanks for explaining that, and also for elaborating on the next steps of the selection process.

[Guinevere]

I have done a 180 on the DP since DNA evidence has exonerated a few people. Once dead you can't make things right.

By the way, you aren't the only one. If I can find it quickly, I'll post some data and analysis from Pew research my Swede pointed me to the other day, that shows the support for the death penalty is dropping -- by a pretty decent amount -- in the last 20 years. They also do some good demographic break-outs as to where the support and opposition is the strongest and the weakest.

Here it is: http://www.pewforum.org/2014/03/28/shri ... h-penalty/

Excerpt:

According to a 2013 Pew Research Center survey, 55% of U.S. adults say they favor the death penalty for persons convicted of murder. A significant minority (37%) oppose the practice.

While a majority of U.S. adults still support the death penalty, public opinion in favor of capital punishment has seen a modest decline since November 2011, the last time Pew Research asked the question. In 2011, fully six-in-ten U.S. adults (62%) favored the death penalty for murder convictions, and 31% opposed it.

Public support for capital punishment has ebbed and flowed over time, as indicated by polls going all the way back to the 1930s. But it has been gradually ticking downward for the past two decades, since Pew Research began collecting survey data on this issue.1 Since 1996, the margin between those who favor the death penalty and those who oppose it has narrowed from a 60-point gap (78% favor vs. 18% oppose) to an 18-point difference in 2013 (55% favor vs. 37% oppose).

[Sue U]

I have also flipped on the death penalty over the last 20 years. While never a fan of its broad application, I thought it might be appropriate in cases of murder-for-hire and terrorism because of a potential deterrent effect. But I frankly haven't seen any evidence of deterrence even in this limited set of crimes, and the ethical/moral problem of death as a state-imposed penalty weighs too heavily to justify so speculative and unsubstantiated a benefit. My state abolished the death penalty 8 years ago, although no one has been executed here since the early 1960s.

[BoSoxGal]

Pardon, I didn't see this thread when starting mine yesterday evening.

Massachusetts is anti-death penalty by a wide margin, so many folks will be struck from the jury panel immediately on those grounds, raising just one of many appellate issues that will drag this case out for years.

Why must the United States Attorney for Massachusetts seek the death penalty against the majority will of the people who were victimized?



from: http://www.bostonglobe.com/metro/2013/0 ... story.html

Apparently, Tsarnaev was ready to plead guilty and be sentenced to life without possibility of parole, and waiving all appeals. The whole thing would be done without the grandstanding and he could have gone into a hole to live out his life, available to BHU types as they study the phenomenon of radicalization of youth to terroristic objectives.

Instead, we'll spend a fortune to pursue his death, against the will of his victims.

This proceeding doesn't serve me as a citizen. Does it serve you?

Some good pieces:

http://cognoscenti.wbur.org/2015/01/05/ ... ue-process

http://cognoscenti.wbur.org/2014/05/09/ ... dershowitz