A fascinating issue is emerging during jury selection in the Dzhokhar Tsarnaev trial.* The vast majority of the prospective jurors who have been questioned believe he is guilty. A few have expressed doubt regarding his role and responsibility, but not about his participation in the bombing. Under ordinary circumstances that would be terrible news for the defense and good news for the government.
Nevertheless, the government has a problem.
Very few of the prospective jurors believe in the death penalty.
That’s good news for the defense and bad news for the government because only the defendant can move for a change of venue. He is not likely to do that because opposition to the death penalty is highest in the Boston area.
The Sixth Amendment provides in pertinent part,
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .
Since Tsarnaev has a right to be tried in the Eastern District of Massachusetts, the government lacks standing to move for a change of venue and the Court has no authority to order it.
Quite the dilemma. Boston is the last place on the planet where the defense would like to try the guilt/innocence phase of this case, but Boston probably is the first place where they would want to conduct the penalty phase.
I’ll bet they will stay in Boston and not renew their motion for a change of venue.
Some of the thoughtful and interesting answers given summarized in this article:
Asked twice if he could impose the death penalty, he said, “I’m committed against it.”
“There is no way in modern America today that I’m going to vote for the death penalty. I will not.”
“This whole process made me more religious. I just can’t agree with the death penalty.”
“I just think killing another man is wrong. And I would be one of the members doing it. I just can’t kill another person.”
“I would rather do the life imprisonment. I’m against the death penalty. It would have to be as personal as my child. I could not pass on the death penalty.”
“I would leave myself open to persuasion, but I would be disinclined.”
He said the death penalty is “cruel and unusual.”
“Here’s the thing. This was a horrendous crime — hundreds, thousands affected. The magnitude was significant. At the same time, I do have reservations about the death penalty as a policy.”
“The age of the defendant has some weight in my mind. The defendant was 19 when the crime was committed. I look at that as a mitigating circumstance.”
“I would have a difficult time [voting for the death penalty]. Let’s put it this way: It would go against my judgment that the death penalty is a good idea for society. My personal belief is that the death penalty serves no constructive purpose.”
On could he vote for the death penalty, “If there were societal risks, I would say…possibly? It would have to be pretty compelling.”
“I think it’s something I would struggle with. I’m not sure I have the personal constitution to participate in someone’s death.”
Asked if she could conceive a situation “so disturbing or morally repugnant” enough to impose the death penalty, she said, “Pretty sure. No.”
“I don’t object to the death penalty itself. But I could never decide somebody’s fate like that.”
“I don’t feel that it’s up to me to make that decision to take somebody’s life.”
“It is not a logical punishment for any crime. It costs the state more. It carries the burden of being irreversible if the person is found not guilty afterwards. It’s proved not to be a deterrent.”
When asked if he could conscientiously vote to impose death: “I think it would be difficult for me, but honestly I think I could.”
“I’m completely opposed to it.”
Asked if she could conceive of any case that would be so shocking that it would change your mind, she said, “No.”
“Theoretically, I believe in the death penalty. It becomes very different when you’re looking at you making the decision.”
“I think more often than not I am opposed to the death penalty … I’d have more difficulty voting for it, but I believe I could do it.”
“I don’t believe in an eye for eye justice.”
“Government shouldn’t impose the ultimate penalty.”
“When someone does a heinous crime, you don’t do the same thing back.”
“Upon reflection, I strongly oppose the death penalty. I think my answer would be he should not receive the death penalty.”
“I have no view either way. I am really in the middle. I would have to hear everything and make an educated decision.”
“I was surprised that the death penalty was on the table.”
*I have been following Jim Armstrong on Twitter. He is covering jury selection for WBZ in Boston.