The 13th Juror: When picking a jury turns into a marathon

Posted at 8:23 PM, Jan 29, 2015

By Ann O’Neill


BOSTON (CNN) — Most people here think Dzhokhar Tsarnaev is guilty as sin.

They have little doubt that the scruffy college sophomore and his big brother built a couple of pressure cooker bombs and blew up the finish line of the 2013 Boston Marathon. Three people died, including a little boy and, later, an MIT campus cop. Countless other lives were forever changed and nobody in the birthplace of liberty feels quite as safe as they did before.

Don’t take my word for it. Let the good people of the jury pool tell you for themselves:

“I am set in my ways and this kid is GUILTY.”

“If I get picked I know how I’m voting. Guilty.”

“Everyone thinks he is guilty.”

“Caught red-handed, should not waste the $ on the trial.”

“We all know he’s guilty so quit wasting everybody’s time with a jury and string him up.”

“Waste of time, they should have already killed him.”

“They shouldn’t waste the bulits [sic] or poison; hang them.”

People actually wrote these things on their official juror questionnaires.

And it continued in person, in court. One woman looked like a promising prospect — until she said she agreed with friends, who told her we should “just skip the trial and go straight to sentencing.”

Not so fast, people. That’s not who we are. I can’t help but think of the trial drama “Twelve Angry Men” and that famous line written by Reginald Rose: “It’s not easy for me to raise my hand and send a boy off to die without talking about it first.”

At the John Joseph Moakley federal courthouse here, they’ve been talking about it for eight days. We’ve heard 105 people pontificate, prevaricate and vacillate.

Terror prosecution, death penalty defense

United States of America vs. Tsarnaev pits some of the best anti-terrorism prosecutors against some of the best death penalty defense lawyers the nation’s legal system has to offer. They sit at two conference tables pushed together in the center of an airy, modern courtroom in a building that overlooks Boston Harbor.

With a dozen lawyers assembled, it’s no surprise that picking a jury is slow going.

What is surprising is that so many of Tsarnaev’s supposed peers are convinced of his guilt without hearing one word of testimony. It also has been fascinating to watch people wrap their heads around something they don’t usually think about in Massachusetts — the death penalty.

The jurors will have two tasks. First, they will have to determine whether Tsarnaev, who is 21, is guilty of some 30 federal crimes, which include terrorism counts and intentionally killing people with weapons of mass destruction. Since 17 of the counts carry possible death sentences, jurors then will have to decide whether he should pay for those crimes with his life. So the stakes are about as high as stakes can get.

I love a good trial and long ago lost count of how many I’ve covered. But in each one, I’ve experienced the same thing: The lawyers ask me and other reporters what we think. How am I doing? How’s it playing? They’re hungry for feedback. But we always tell them that it doesn’t matter what we think.

It matters what the jury thinks.

They know, they know. Still, lawyers in high-profile cases come to view some of the press gallery regulars as 13th jurors. They parse our stories for hints of how the case is going. Is my strategy working? Is that witness believable? Is my cross-examination hitting the mark?

Because this trial is being held in federal court, there will be no cameras.

Instead, you’ll have me writing weekly as The 13th Juror. It’s a filter, true, but remember, this ain’t my first rodeo.

Already, this trial reminds me of two others I covered:

Lyle and Erik Menendez gunned down their parents in Beverly Hills. Like Dzhokhar Tsarnaev, Erik Menendez was 19 when the crime was committed, and his lawyers argue that he was under the sway of an older brother. And Sara Jane Olson, a respectable doctor’s wife, was tried for trying to blow up police cars during her days with the Symbionese Liberation Army, the same ragtag political radicals who kidnapped heiress Patty Hearst. Olson was arrested after 23 years on the run and pleaded guilty when prosecutors started using the word “terrorist” to describe her.

The trial of Tsarnaev, the wannabe jihadist whose profile selfie wound up on the cover of Rolling Stone, promises to be full of meaty issues dealing with the war on terror that has shadowed our lives since 9/11.

A look through the voluminous court file clued me in as to where this case is headed. Prosecutors are going to paint the Brothers Tsarnaev as terrorists. The defense is going to try to portray their client as a mixed-up slacker under the influence of his more radicalized big brother.

The truth is, wannabes who blow things up are every bit as scary as real jihadists. Timothy McVeigh, who is often referred to as a home-grown terrorist, blew up a courthouse in Oklahoma City with a homemade bomb made partly out of fertilizer. He paid for that with his life.

It’s not always about ISIS and al Qaeda.

Terror is in the eye of the terrified.

The human Petri dish

As jury selection plods along, I am reminded that this is the civics lesson part of any trial. Many reporters skip it. But most big cases are won or lost during this process. It gives you a deep dive into the human Petri dish.

It’s important to know the 12 people sitting in judgment as best as you can. Granted, they are on their very best behavior the first time we meet them.

Then the lawyers poke and pry and pick, trying to uncover the secret agendas.

Ask somebody right out, “Are you biased against my client?” and the answer likely will be, “No.”

That’s when the real work begins.

One woman, for example, seemed like a perfect juror. But she fudged about how much she used social media. The defense checked out her Twitter account. There it was, a profane tweet applauding Tsarnaev’s arrest.

The defense team knows it is waging an uphill battle. They’ve asked, three times now, to move the trial out of Boston. They’ve been summarily turned down.

The truth is, unless you can find 12 hermits who have been living in caves without cable or the Internet, it will be impossible to find anyone who hasn’t heard something about the bombs that went off at the Boston Marathon. I’m not sure I’d want people who live in that kind of bubble to sit on a jury of my peers.

In the latest court filing, the defense took the trouble to analyze the prospective jurors’ responses on the questionnaires. It was the first court filing I’d seen with pie charts, in color. They were designed to show how bad things look for Tsarnaev in Boston’s court of public opinion.

The numbers were eye-popping: 68% of the 1,373 people in the jury pool think Tsarnaev is guilty: 85% either think he’s guilty or feel some personal connection to the bombing. The media coverage, the defense said, has spun “a narrative of guilt.”

Prosecutors responded that Tsarnaev is notorious, no matter where you go. In New York, they said, 92% of the people surveyed in a telephone poll said they thought he was guilty; in Washington, D.C., 86%.

So far, the argument of local bias hasn’t moved U.S. District Court Judge George A. O’Toole Jr. He keeps right on questioning folks, convinced he can pull this off. All he needs is 70 people who can agree to put aside their personal opinions and listen to the evidence.

Is it really possible to find 12 fair and impartial people (plus six alternates) in Boston? Can people really put aside everything they think they know about the marathon bombings as soon as they step into a courtroom? And then, can those 12 people make a life or death decision on what the punishment should be in a state that hasn’t had the death penalty for a generation?

They’ve spent 11 days on jury selection, eight of them questioning the prospects one by one. At the end of each day, the lawyers and judge go behind closed doors to hash out who might make the cut. The Boston Globe filed court papers late Tuesday seeking to open up the process, saying transparency would give the public more confidence in whatever the jury decides.

But the judge thinks it also might give some of the prospects clues on how to dodge jury duty.

So far, O’Toole has given no indication of how close they are to that magic number, 70. Once they hit it, we’ll go into the lightning round, where each side gets to eliminate 20 jurors. Whoever is left standing is likely to make the jury.

It is particularly disturbing to listen to so many people say it’s up to the defense to convince them Tsarnaev isn’t guilty. Save it for the kangaroo court, folks. You’ve been watching too many crime shows. You’ve got it bass-ackwards.

It’s a cornerstone of our legal system that a person is presumed innocent until proven guilty. So the proper answer to any question about Tsarnaev’s guilt at this stage is simple: He’s innocent.

Nobody has proved anything yet. Get it? It’s not an opinion. It’s a fact, Jack.

It’s perfectly OK to think Tsarnaev did it as long as you don’t use the “G-word.”

It’s OK to believe he and his brother blew up the marathon and shot an MIT campus cop to death while they were on the run. It’s OK to think Dzhokhar was the one the cops found hiding in a boat parked in somebody’s back yard in Watertown.

It’s hard to argue with all the surveillance video: the footage of the brothers with the backpacks near the finish line, the images of them in a gas station after a car-jacking, the footage of police rousting Dzhokhar Tzarnaev from the boat.

But it’s flat-out wrong to say in front of a room full of people that Tzarnaev is guilty. If you do, you have no business being on his jury.

That’s probably just fine with most of these people. Nobody in their right mind would volunteer to relive the horrific events of April 15, 2013, or want to decide whether another person should live or die. Not for $40 a day.

‘Only dumb people wind up on juries’

One woman said she worried others would judge her. “People were saying, ‘Only dumb people wind up on juries. You have to be smart enough to get out of jury duty.’ ” And it was even worse at the office. “People at work think the job should be priority,” she said, “so shame on me for not getting out of jury duty and making my job my priority.”

But then there are those who know jury duty is a small price to pay to live in a democracy.

“I guess it’s my turn to stand up,” said one.

“Would I choose to do it? Probably not, but I know this is important,” said another.

I felt a kick of dread in the pit of my stomach when the judge asked a man who has a small child if viewing images of dying or grievously injured children would be disturbing to him. Hell, yes, it would be. But he was one of those who feel duty-bound to do the job.

There were several people, most of them middle-aged women, who seemed far too eager to be picked. Perhaps they are bored with their routines and their afternoon soaps. One, who described herself as a “country bumpkin,” said she’d “never been to something this big.” It was all just so exciting.

She walked in already convinced of Tsarnaev’s guilt and said she’d have no problem giving him the death penalty. “This happened on U.S. grounds, and that’s unacceptable,” she declared.

Not surprisingly, she was one of the people waiting for “the defense to come through and give us more facts” to prove him innocent, or at least worthy of more time on this Earth. She said she feared Tsarnaev might receive “special privileges” if he was sentenced to life in prison. Asked why she thought that, she replied, “I don’t know.”

Let’s hope we don’t see her again.

A young stay-at-home mother acknowledged that she was anxious at first, but now would welcome serving on the jury because “it would get me out of the house.” She seemed level-headed in her responses, so she might make the cut. She thought she could vote for the death penalty “as a juror.”

The death penalty is the real elephant in the courtroom. Many people from Massachusetts just can’t go there. Some haven’t given it much thought, and really, why would they in a state that hasn’t had a death penalty on the books in a generation? The last time the state executed somebody was in 1947.

“I’ve killed spiders, and that’s about it,” said one woman who, like many others questioned, said she won’t really know where she stands until she’s actually facing the reality of voting for someone’s death. In theory, she says, “I’d prefer not to have that option, but I could go there.”

I heard two prospective jurors, a man and a woman, say they were shaking as they grappled with the difficult questions about their ability to send another person to the death chamber.

A young man with a purple ponytail who works part time at a tanning salon made no secret of his strong feelings and was quickly shown the door. “I will not make that decision to put another human being to death,” he stated.

I can’t figure out whether Boston has some of the dumbest people on the planet — or some of the shrewdest. If your goal is to get out of jury duty, some of these folks have mad skills. Consider the guy who wore a “Boston Strong” sweatshirt to the first day of jury selection. He hasn’t been seen since.

“All my friends have said I’d be crazy not to make some crazy statement to get off this case,” said a woman who works in a bank. She played it sane.

A middle-aged man provided a peek at what was going on in the jury room: “When I was in the first room and they were saying they were going to do anything they could to not be picked, I was ashamed for them — and ashamed of myself for feeling the same way,” he confessed.

But, he added, “Somebody has to do this.”

Nobody told him it would be wicked hard.

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