Why a Court Overturned the Death Sentence for Dzhokhar Tsarnaev, the Boston Marathon Bomber

On Friday, a panel of three federal judges vacated the death sentence in the case of Dzhokhar Tsarnaev, the Boston Marathon bomber, who has been on death row for five years. The court unanimously concluded that Tsarnaev did not receive a fair trial. “A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” Judge O. Rogeriee Thompson wrote for the panel. Later, she reiterated, “For even the most heinous of offenses, our system of justice demands vigorous protection—both in appearance and fact—of a defendant’s right to a fair trial and sentencing.”

Tsarnaev, who was nineteen at the time of his crime and twenty-one when he was sentenced, was tried in Boston after he and his older brother Tamerlan set off two homemade explosive devices during the 2013 Boston Marathon, killing three people and injuring two hundred and sixty-four. I was at the federal courthouse in Boston every day, watching the jury selection and then the trial; I was then finishing a book on the Tsarnaev brothers. It was some of the most disheartening reporting I have ever had to do. William Richard testified about his six-year-old daughter, Jane, who lost a leg, and his eight-year-old son, Martin, who was fatally injured. Karen McWatters, who also lost a leg in the blast, recalled dragging herself closer to her best friend, Krystle Campbell, and pressing her face to Campbell’s as she lay dying.

Before the trial actually began, however, in March, 2015, there were twenty-one quiet, monotonous days of voir dire, or jury selection. Out of an initial pool of 1,373 people, two hundred and fifty-six potential jurors came in to be interviewed by the judge, George O’Toole, with members of the prosecution and defense teams following up. The jurors sat with their backs to a camera that broadcast the process into rooms where members of the media and the public could watch. (The public quickly lost interest, and some days there were only a handful of journalists in the media room.) Looking at the back of each person’s head, you could guess at race, gender, and age; you could adjust your guesses when you heard them speak. You could watch the lawyers, and, in my notes, I indicated when I thought any of the attorneys were displaying strong emotion. Tsarnaev himself seemed indifferent, and spent much of his time doodling on a legal pad. He appeared to take an interest only once, when a Mexican-American academic described his work studying how immigrants provide financial support to their families back home. This man was not seated on the jury; he was disqualified because he was opposed to the death penalty. Because the government was seeking the death penalty, jurors had to be willing to consider applying it.

Most of the potential jurors had some kind of personal connection to the bombing. One lived in the same neighborhood as the Richard family; another had a friend who was a first responder to the attack; a third was a marathon runner. Almost everyone, it seemed, owned a piece of “Boston Strong” merchandise or had donated to a charity that helped survivors of the attack. Sixty-eight per cent of the potential jurors said that they believed Dzhokhar Tsarnaev to be guilty. Before voir dire started, the lawyers on both sides and the judge debated how potential jurors should be questioned on what they knew and thought of the bombing. The appeal hearing revealed that the defense argued for detailed discussions, but the judge opted to ask one general question of every juror: “Can you set aside your opinion and base your decision solely on the evidence that will be presented to you in court?” It was a poorly constructed question, since it suggested one correct answer. One potential juror, a psychologist, responded, “I don’t know that the brain works that way.” She said that it would be difficult for her to surrender her principled opposition to the death penalty, “because it’s not based on something I’ve heard in the media; it’s based on my personal beliefs. It’s even harder to set aside because it’s one of my lifelong beliefs.” She, too, was disqualified.

Massachusetts abolished the death penalty in 1984, and the state had not executed anyone for several decades before that, but Tsarnaev’s was a federal case. Polling indicated that most Bostonians preferred life imprisonment for Tsarnaev over a death sentence; the requirement that jurors be open to applying the death penalty probably narrowed the jury pool significantly. Some potential jurors appeared to soft-pedal their opposition to capital punishment. Juror No. 355, a criminal-defense attorney who had been training to run the 2014 Boston Marathon, claimed that he could vote for the death penalty even though he thought it was used too widely in the United States. The prosecutor, Steve Mellin, pressed him to give an example of someone who ought to be put to death for his crimes. The juror suggested Slobodan Milosevic, the former Yugoslav dictator. “So, genocide?” Mellin asked. “Genocide is a good starting point,” the juror responded. I wrote in my notebook, “S.M. dislikes him deeply, judge says this ‘sounds a bit too much like cross-examination.’ ” The juror was disqualified, because, Judge O’Toole said, he did not believe the juror “was going to be truly open” to the death penalty “in the way that would be necessary.”

The interview I remember best was with Juror No. 286, a white, middle-aged woman who worked as a general manager at a restaurant. She claimed to have no particular view on the death penalty because, she said, “it doesn’t affect me personally.” Mellin asked if she would have trouble voting for the death penalty. “It doesn’t bother me,” she responded. “I guess I don’t really feel that I’m sentencing someone to death or to life imprisonment—it’s their actions that led to that. It’s like at work. I fire people, and they ask, ‘How can you do that?’ I’m not the one doing that. They did it by their actions—not coming to work, stealing, whatever.” The defense attorney Judy Clarke (whom my colleague Patrick Radden Keefe profiled in this magazine, in 2015) pointed out that, through her job, Juror No. 286 was habituated to being in charge. Could she set that aside on a jury, where “everyone is equal”? Juror No. 286 reassured Clarke. “I don’t like to be the center of attention,” she said. She added that, ever since being promoted to manager, she had been playing the lottery in hopes of retiring. “I don’t like the responsibility for people,” she said. Clarke pressed the woman on her willingness to take up the “huge responsibility” of becoming a juror. Juror No. 286 responded that she had served on a criminal jury before and felt elevated by the experience. “It’s an important thing for someone like me, who hasn’t gone to college,” she said. “I was a waitress for years. I feel the same way every time I come out of the voting booth.”

I found the juror’s words both moving and chilling. When she talked about the trust that the jury system places in ordinary people, I thought I heard her choke up—but all I could see was the back of her head, so maybe that was my own emotional reaction. Yet the cavalier way in which she talked about her willingness to vote to put someone to death—the ease with which she shifted the burden of that decision onto the person she would condemn—belied her humble words about civic duty. She became the jury forewoman: a supervisor after all.

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