In Boston Marathon bombing case, jury selection is an ongoing struggle

BOSTON — When she received the summons in December, her friends told her she would be disqualified instantly, and she agreed. There was no way she would make it past the first round of jury selection in the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev. Yet there she was on Thursday, potential juror 337, in Courtroom 9 at the federal courthouse, sounding almost mystified at times as she explained why she shouldn’t be one of the 12 Boston-area residents impaneled to determine Tsarnaev’s fate.

The disqualifications seemed obvious. Her late father, she explained, had spent more than two decades serving on the board of the Boston Athletic Association, the group that sponsors the marathon, and her brothers were still involved in the organization. One had been near the marathon’s finish line in April 2013 only minutes before two bombs were detonated, killing three and injuring nearly 300. The marathon was in her blood, and what happened that day had affected her deeply. There was no way she could be impartial, the juror said.

Besides, the middle-aged brunette added, she already believed Tsarnaev was guilty. “That’s clear,” she said, nodding ever so slightly in the direction of the accused bomber, who sat a few feet away from her at the opposite end of a long conference-room table. Tsarnaev briefly glanced at her before he sank back into his chair.

But the presiding judge, George O’Toole, plowed on, ignoring signals from Tsarnaev’s defense team suggesting the juror be dismissed. Could she put her personal beliefs aside? he asked. No, the woman answered. One of the prosecutors, Aloke Chakravarty, tried a similar tack, reminding her that a jury’s duty was to weigh the case only on the evidence presented in the courtroom. Could she do that?

“I can’t un-forget what I already know,” she bluntly replied. “I think he’s guilty.”

After a few more minutes, the woman was finally excused — ending yet another day in the slow process of trying to seat a jury impartial enough to fairly judge Tsarnaev. The 21-year-old former college student is accused of plotting and carrying out the deadly bombings along with his older brother, Tamerlan, who was killed in a confrontation with police four days after the attack. Tsarnaev faces the death penalty if convicted.

Tsarnaev’s attorneys have argued that their client can’t get a fair trial in Boston — though their motions to move the case out of the city have been repeatedly denied. On Tuesday, the defense filed a second motion with the First Circuit Court of Appeals, this time armed with evidence from juror questionnaires filled out by the 1,337 Boston-area residents summoned in the case. Sixty-eight percent of those called to serve already believe Tsarnaev is guilty, according to the defense, while 69 percent have a “self-identified” connection to the bombings, meaning they were affected or knew someone who was. Prosecutors filed a motion opposing the move Friday, calling the argument without merit.

Even as the defense team fights to move the trial out of Boston, jury selection has meandered on, sometimes in an atmosphere of desperation as the court tries to find someone, anyone, who hasn’t already formed an opinion about Tsarnaev’s innocence or guilt in the highly publicized case. Members of the jury must also be willing to consider sentencing Tsarnaev to death, and that’s a high challenge in Massachusetts, where the death penalty was outlawed on the state level in 1982 and a majority of the population opposes capital punishment on moral or religious grounds.

Jury selection began Jan. 5 in the case, and individual questioning of potential jurors, known as voir dire, began on Jan. 15. Judge O’Toole had hoped to begin opening arguments in the trial on Jan. 26, but the court has not come close to meeting his expectations of questioning as many as 30 to 40 jurors a day. Court has been delayed or canceled because of snowstorms that have walloped Boston in recent weeks, and the process of talking to prospective jurors has moved achingly slowly.

As of Friday afternoon, 157 potential jurors had been individually questioned over 12 days. The court is trying to gather a pool of 70 “qualified” jurors — people who not only have not formed an opinion about the case but also would be willing to impose the death penalty. From there, the list would be whittled down by prosecutors and Tsarnaev’s attorneys to a panel of 12 jurors and six alternates.

On Tuesday, O’Toole, through a spokeswoman, acknowledged the delays in picking a jury, but said the process was “progressing satisfactorily” and that it was “reasonable to think” jury selection could be wrapped up by Feb. 13. But the court has declined to say how many jurors (whose identities are being kept anonymous) questioned so far have made the cut. A majority of potential jurors questioned have said that they believe Tsarnaev is guilty or that they could not sentence him to death.

This week O’Toole has sped up proceedings, questioning as many as 15 jurors a day — slightly up from the early days of voir dire. But at times the judge has also sometimes seemed desperate to seat a jury, spending time questioning potential jurors who would never pass as impartial.

On Wednesday, Tsarnaev’s defense team pushed to dismiss potential juror 292, who was identified as a corrections officer in Plymouth County outside Boston. They argued that because he was a member of law enforcement, he was automatically exempt. But O’Toole insisted on questioning the man, even after the juror told the court that he guarded Khairullozhon Matanov, a Tsarnaev friend who is expected to plead guilty to lying to federal agents about what he knew about the Tsarnaev brothers. “His codefendant,” the man said, referring to Tsarnaev — though Matanov has not been charged or implicated in the bomb plot.

Though Tsarnaev’s attorneys repeatedly exchanged glances with the judge, signaling that they thought the juror should be excused, the judge continued to go through the questionnaire for another five minutes. The juror spoke of his distrust of defense attorneys, how he couldn’t defend the people he guarded at the jail, said he firmly believed Tsarnaev was guilty and would not be swayed. “Before I even sat down, I would have my opinion: guilty,” he said. A few minutes later, the judge finally excused him.

The difficulty facing the court was illustrated in a new Boston Globe poll released Thursday that found 50 percent of 1,000 Massachusetts residents polled believe Tsarnaev is guilty, while another 40 percent believe he is “probably guilty.” But those polled were split on what punishment he should receive: 48 percent said life in prison, 46 percent said the death penalty and 6 percent said they didn’t know.

On Thursday, the court questioned several jurors who were personally affected by the bombings or who knew someone who was. Juror 328, a woman who works in public relations, said that a friend had a part of his ear blown off by shrapnel from the second bomb and that she believed Tsarnaev is guilty — but insisted she would be able to remain impartial. Another woman, juror 308, was working dispatch at the campus police department at Northeastern University during the manhunt for Tsarnaev. Juror 318 disclosed deep ties to law enforcement in Boston — her husband is head of security at City Hall, her brother is a Boston police officer and her son works as a state corrections officer outside the city. She told the court she was “unsure” about whether Tsarnaev is guilty or whether she could support a penalty of death.Asked if she was sure she could be impartial, the woman replied, “I’m positive.”

On Friday, juror 345, a woman who works as a veterinarian’s assistant, disclosed that she had previously worked with Warren Russell, a doctor who is the father of Katherine Russell, the widow of Tamerlan Tsarnaev. Under questioning from Judy Clarke, one of the defendant’s attorneys, the prospective juror said she had never met Warren Russell’s family, but recalled a day when he came to work upset and told co-workers that he was “estranged” from his daughter over her husband.

He was “not a fan of his brother,” the juror said, referring to Dzhokhar Tsarnaev, who offered no visible reaction to the mention of his older brother, Tamerlan.

“I know him to be a kind man,” the juror replied when Clarke asked about Warren Russell and how she might weigh his testimony in the case — the first hint that the Russell family might be called to testify in the upcoming trial. But the juror insisted she could remain impartial. She told the court that she tended to believe Tsarnaev was guilty, but could be open-minded and was open to the death penalty — though she said mitigating circumstances could also prompt her to lean more toward life in prison. She told the court she wanted to know what motivated the defendant before determining what the sentence would be.

“I want to know why,” juror 345 said.

From the end of the table, Clarke asked the juror if she would consider other factors, like a “learning disability” or “upbringing.” “What if you didn’t hear why a crime was committed?” Clarke asked.

The juror paused. “Don’t you have to hear why?”