Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.

8 Responses to Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

  1. owl says:

    oh, how i wish i was contacted to qualify for jury duty in this case. i work a very short distance from the courthouse, and walk by frequently. i was called to jury duty for john connolly, but was sent away with an elevator full of suburban matrons, just when it looked like we might progress.
    there would be so much to learn, to gain, and to give by going through the process. my heart is with the victims, the mortally wounded, the forever disabled, and the bloody, open wound to our beloved city.
    at the same time, while hating the evil idea formulated, the violence of the subsequent action, i have an open mind to seeking understanding as to how / why this happened.
    i am glad the trial will be right here in Boston where it belongs.
    i don’t want revenge, i want justice. it will be interesting to see how it plays out.

  2. Sleuth says:

    O/T: I apologize for posting this, but I have been avoiding (when I could) news reports of police brutality and unjustified murders. Now, after reading this earlier, I can not sleep. I’m just overwhelmed by it all. I don’t know why, but instead of hate, I feel as though I am carrying an enormous weight. But I continue in prayers. Please pray with, and for me.

    As a result of Ronald Ritchie’s blatant lies, the death toll is now four people. He needs to be seriously held in account for his actions, which I believe were done deliberately.

    I saw the video of Tasha Thomas’s brutal interrogation by police detectives regarding John Crawford’s murder, and mentioned it to a couple of friends on New Year’s Eve. The last thing that crossed my mind was that she would be killed the next day.

    Again, I apologize, but I didn’t know what else to do so I posted here. Please forgive me.

    http://www.theguardian.com/us-news/2015/jan/02/girlfriend-john-crawford-dies-car-crash-tasha-thomas

    • Nothing to forgive. Thanks for the link.

      Take heart. We live in terrible times and are being called by events like this to step up and peacefully do what must be done to restore sanity, peace and good will toward others. God is not a magical intervenor in the physical dimension of space-time. He acts through us. Draw strength from those around you. We are legion and we are all in this mess together. We are the many and they are the few. Together we can make mountains tremble.

      • Michelleo says:

        “God is not a magical intervenor in the physical dimension of space-time. He acts through us.” —-Amen and absolutely!!!

    • Malisha says:

      Sleuth, I see nothing ON YOUR PART to need forgiveness in what you have posted. Thank you for posting. I hope you’ve gotten some sleep. I saw the interrogation of Tasha Thomas; I agree with you on all points. I think there comes a certain “tipping point” in bully-rule-societies when the ordinary person suddenly realizes what has happened and what the future looks like. At that point in time, the person has to figure out, of course, the big question: “What next?”

      “What next?” sometimes has to be confined to a reality-based context: “What shall I do next?” I have come to the personal conclusion that all I can personally do next is to take comfort in the small ways and to give comfort in the small ways. That’s all I have ever come up with.

      I feel for you, and with you, and I wish only good upon you, and I hope in some small way I can comfort you. I have taken comfort from you in the intelligence and the strength you have shown.

      That’s all I have for today, at this particular moment. But something tells me that these small things are all we have ever had and they must, therefore, be enough.

      Thank you.

    • bettykath says:

      Thanks for the link.

  3. bettykath says:

    I’m amazed that 12 people independently have been willing to send so many people to their death, especially since so many of them have been proven to be innocent, or really young, or of limited intelligence.

    • Malisha says:

      I must be more cynical than most people. I’m not surprised that 12 jurors often vote to kill dishonored, disrespected, despised defendants. It doesn’t surprise me at all, unfortunately. đź‘ż

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