Jury Selection in Tsarnaev Trial and Comparisons

Update: Tsarnaev's defense team has now requested a continuance due to the Paris shootings.

Boston Magazine has an interesting interview with Stephen Jones, lead trial counsel for Timothy McVeigh, "Tale of Two Trials" on similarities and differences in McVeigh's case and that of Dzhokhar Tsarnaev.

On jury selection, he raises the issue of the "stealth juror."

The federal courts, in my opinion, engage in a fiction. The fiction is — and some sincerely believe it, but I think nevertheless it’s a fiction — that once the juror takes an oath as a juror that their personality and character sort of changes and now they recognize this tremendous responsibility on them. I’ve not found that to be true.

What I’ve found is that the more notorious the case is, or the greater the publicity, jurors campaign to be on the jury so they can be a part of history, and that was certainly the case in Mr. McVeigh’s jury.


Stephen Jones says of McVeigh:

Tim McVeigh was an interesting person. He was a true terrorist. He wanted to advance the cause of the revolution and he was willing to sacrifice himself to do so.

That's an interesting statement from a political perspective: that a "true terrorist" is someone who wants to advance the cause of a revolution and is willing to martyr himself for it. I would say a "true terrorist" is one whose primary goal is to cause terror and evoke sustained fear, particularly among the citizenry. I think McVeigh's acts were fueled by his hatred of the federal government, which he viewed as the "true terrorist" for its actions at Ruby Ridge and Waco, and the citizenry, in his view, were collateral damage. I also think there are "true terrorists" who direct terror attacks and don't put themselves in a position to be killed, and who later cooperate with law enforcement. David Coleman Headley (convicted of the Mumbai bombings) comes to mind. The interview with Stephen was condensed, so I wonder if he didn't have more to say on this that didn't make it into the article.

On to Tsarnaev: Jury selection in Tsarnaev seems to be moving forward. I think there are enough similarities between the shootout with the Tsarnaev brothers and the shootouts in Paris to warrant a continuance. As of yesterday, there's nothing on the docket to indicate the defense has requested one, although so many pleadings are filed under seal, it's hard to know for sure.

The Judge presiding over the Tsarnaev trial yesterday released the number of jurors excused for cause from the first two jury panels (A and B). These jurors were excused for cause, based solely on their written answers to questions contained in a juror questionnaire, and the agreement of both sides.

According to an order entered by the Court (Document 895), there are six panels, designated A to F. Each panel has about 200 prospective jurors. In Panel A, the government and defense agreed about 64 of them should be excused without any questioning. In Panel B, around 70 were excused. There are four more panels (C-F), 1200 people in all, and the number of excused jurors from these panels will be disclosed by the court tomorrow and Wednesday.

Those who remain will then be called in for questioning beginning sometime on or after January 15 in groups of 20, with the court intending to question one group in the morning and the next group in the afternoon.

I think one big difference between picking the jury in McVeigh and Tsarnaev is that in McVeigh, Judge Matsch allowed the Government and defense to extensively question the prospective jurors on their views. In Tsarnaev, the judge's order states, as to the jurors who will appear in groups of 20:

The Court will provide preliminary instructions and question prospective jurors in each group regarding their adherence to the Court’s instructions prohibiting case-related communications and media exposure.

The Court will then question prospective jurors individually in Courtroom 9. The Court anticipates conducting individual voir dire itself, but may permit limited follow-up questions by counsel as may be appropriate.

The judge instructed the lawyers to provide followup questions to those he asks in writing. It seems like he intends very little active participation by the lawyers in the actual questioning of jurors.

Note: The words on the left side of the graphic at the top of this post are those of Justice Louis Brandeis in his dissenting opinion in a 1928 wiretap case, Olmstead v. United States. They are on etched on the Suffolk County Courthouse in Boston (not the federal court where Tsarnaev is being tried.) They are also the only words spoken by Timothy McVeigh at his sentencing, when asked by the Judge if he had anything to say before he pronounced his death sentence.

"If the court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me," McVeigh told the court. "He wrote, `Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.' That's all I have."

Here's the full quote:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.

In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.

Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Disclosure and note: Since I was one of McVeigh's trial lawyers, please do not include personal attacks on him in your comments. They will be deleted.

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