Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“PHASE ONE” OF BOSTON’S FEDERAL COURT MULTI-MURDER TRIAL CONTINUES: WHAT IS THIS JURY SELECTION ALL ABOUT?

“Phase One” of Dzhokhar Tsarnaev, 21, hereinafter, the “Defendant” ‘s jury trial for, among other things, multiple murder continues in Boston’s Federal District Court. The Defendant is accused of carrying out bombings with his now-deceased brother near the finish line of the race on April 15, 2013. Three people were killed in the bombing. More than 260 others were injured. Also, the Defendant stands charged with the killing of an MIT police officer days after the bombings. His brother died in connection with that killing.

Our representatives desire to have the Defendant join with his brother. While some might have expected the matter to be tried in state court, it is being brought to trial in federal court.

The reason is fairly simple. Massachusetts’ state criminal justice system does not have a death penalty. The federal criminal justice system does.

Since the government has announced that it is seeking the death penalty should the Defendant be convicted, the Defendant’s lawyers and federal prosecutors spend days reviewing more than 37,800 pages of juror questionnaires before individual questioning begins on January 15th. Twelve jurors and six alternates will be chosen over three weeks. Then, it is expected that “Phase One” starts with a flourish. The judge told prospective jurors that he expects the trial to begin with opening statements on January 26th.

Attorney Sam’s Take On The Jury Selection Procedure

The procedure of jury selection differs between jurisdictions and types of crimes. However, while some of the specifics differ, the basic process and importance remains the same.

After all, it is the jury which will decide the facts in the case in a jury trial. In a criminal case, the jury must be unanimous in order to reach a verdict. Otherwise, there is a “hung jury”. The unfortunate name merely means that the jurors were unable to unanimously agree whether a defendant has been proven to be guilty beyond a reasonable doubt.

In the case of a hung jury, the parties will have to decide whether they can come to an agreed upon result or else the case goes to trial again.

Basically, the same status quo as before the trial.

“What is the general procedure? Why is it going to take so long? The jury selection in my state case took less than an hour!”

Yes, but this case is different in many respects.

Jury selection in Massachusetts state courts is a fairly quack, particularly in district court cases which are non-sex-oriented. Presently, the judge asks the jury panel some general questions, as well as, perhaps, some questions the attorneys submit to the court, and then the attorneys pick the jury. Each side gets a small number of “pre-emptory challenges”. Such challenges mean simply that the party does not want a particular prospective juror without having to say why.

There are generally very few of these per party.

Challenges to jurors can also be done for “cause”. These types of charges, which are unlimited, basically submit to the court that there is no question but that the potential juror cannot be fair and impartial.

These have to be argued and are usually hard to get.

Since there are so few potential challenges, the process goes pretty fast. It is a process of elimination…not, as many assume a process of picking your favorite potential jurors.

In more serious cases, each side gets more pre-emptories. In federal court, the number of pre-emptories differs from the number in state court.

Next, you have the jurors who either cannot or do not want to serve for the trial. When it comes time for the judge if there is any “other” reason they cannot serve, there is often a long line of potential jurors ready to come up and plead their case as to why they should not serve.

Again, the longer the line, the longer the time.

In the Defendant’s case, it is a high profile and very emotional case. Regardless of how many pre-emptor challenges there are, you may be sure that there will be many challenges for cause and, particularly given the amount of time involved, many jurors looking for the proverbial exit.

The selection will be further complicated because the jury may be called upon to serve during “Phase Two”, the penalty phase.

That will be the phase in which, if there is a conviction, whether the penalty should be prison or death.

There are a number of potential jurors who will clearly have to be excluded from serving. First, as Professor Ira Robbins of American University’s College of Law points out, are those who are categorically opposed to the death penalty. These folks would not be able to fairly serve in “Phase Two” and, if it would influence their decision regarding guilt, “Phase One”. One would imagine that any potential jurors who lost loved ones or saw loved ones injured at the bombing would be excused. Further, because the court has refused to move the case, there may be many folks who were actually present during ether the bombing or the aftermath.

Potential witnesses really cannot be considered fair and impartial jurors.

One final complication. An issue for appeal in the case already exists as to whether the Defendant can receive a fair and impartial trial in Boston. The court will likely be very sensitive to this issue during jury selection. After all, if there is a conviction, which many expect, whether the jury was truly impartial could be an issue which overturns such a conviction.

Then we may get to go through this whole thing again!

As mentioned in my last blog. Kinda makes you wonder if it wouldn’t have been worth moving the trial if not simply to avoid that issue…!

But, then, I am sure that those dressed in black robes are much more knowledgeable and intelligent than I.

To review the story upon which this blog is based, please go to http://abcnews.go.com/US/wireStory/things-jury-selection-tsarnaev-trial-28062420 and http://www.nbcnews.com/news/crime-courts/boston-bombing-trial-dzhokhar-tsarnaev-begins-jury-selection-n277561

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