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The Boston Marathon Bomber – Jury Selection

Jury selection in the trial of the alleged Boston Marathon Bomber, Dzhokar Tsarnaev, is currently underway in Boston’s Federal Courthouse.  But seldom in recent history has a selection of a fair and impartial jury been more problematical.

A group of over 250 potential jurors, collectively called the “venire,” was summoned by the Federal Court in an effort to seat a fair and impartial jury in this, one of the most infamous trials of the 21st Century.  In addition to the twelve jurors who would end up trying the case, the court also needed an additional six alternate jurors, some or all of whom would take the place of any juror who could not complete the trial because of medical necessity or some other compelling reason.

In an effort to cull a jury acceptable to both the prosecution and defense from the group of potential jurors, a lengthy questionnaire was given to each prospective juror to fill out. The 100-plus questions on the form included inquiries about their respective media sources for news (and, of course, in particular the Marathon bombing), any relations or acquaintanceships with any of the victims or witnesses of the bombing, and their feelings regarding the importance of respect for the rule of law and the necessity for the prosecution to prove its case against the defendant beyond a reasonable doubt.

But by far the most important and sensitive subject on the questionnaire was the inquiry into each potential juror’s feelings regarding the use of the death penalty.  There are few subjects more polarizing in American society than the death penalty.  Many legal scholars not only consider the death penalty barbaric and ineffective as a deterrent to crime, but unconstitutional in itself as a “cruel and unusual” form of punishment.

However, in order for a person to even qualify to sit as a juror on a death penalty case, he or she must be willing to at least consider the death penalty as a possible appropriate punishment for the crimes charged in the trial.  It has been eloquently argued that the mandatory exclusion of any potential juror who will not even consider the use of the death penalty automatically loads the jury panel with people who are more biased in favor of using of the death penalty.

The defense team for the defendant has also argued that the method of selection of the venire, that is, the group of citizens from whom the final jury panel is selected, is prejudicial and biased in that it targets mainly white, middle-class persons and that it unfairly excludes racial, certain religious groups, and even younger people in the community.   Given that lists of potential jurors are commonly created from the pool of registered voters, staffing an inherently fair and diverse jury list is largely dependent on how the aforementioned groups are represented in voter registration.

Challenges to unfair jury selection occasionally belie less assailable problems within the trial process.  In an emotionally loaded case like the Boston Marathon Bomber trial, such a defense challenge could accomplish indirectly what it failed to achieve directly, a change of venue to a another federal court district less directly effected by the massacre at the Boston Marathon.