By David R. Dow
According to the Sixth Amendment, Dzhokhar Tsarnaev, the Boston Marathon bomber, was entitled to a public trial at which he would be judged "by an impartial jury of the State and district" drawn from the community where the crime occurred. Yet while well more than half the people from the Boston community opposed the imposition of the death penalty, Tsarnaev was nevertheless sentenced to death. How did that happen?
A day after the verdict, a handful of major media outlets, including Esquire magazine and MSNBC, reported the news by observing that it was a big loss for Judy Clarke, Tsarnaev's lead defense counsel, as if the trial were a baseball game, and Clarke had struck out with bases loaded and two outs in the bottom of the ninth. The reality is, to switch metaphors, Clarke and her team had about as much chance as saving Tsarnaev as a craps player has against the house rolling loaded dice. In fact, it would have been miraculous if Clarke and her team had eluded a death sentence for their client, because Tsarnaev's fate had been sealed long before he ever met his lawyer.
So when exactly was it sealed? It did not happen on that spring day in 2013 when Tsarnaev placed a homemade bomb in front of the Forum restaurant on Boylston Street, which exploded and killed Martin Richard, an eight-year old child, and Lingzi Lu, a 23-year-old graduate student from China who was studying at Boston University. Nor did it happen on January 30, 2014, when the U.S. Justice Department announced it would seek the death penalty. It was not even sealed on March 4, nearly two years after the horrific bombing, when Tsarnaev's jury was finally selected and his trial began.
And it wasn't even sealed during the trial itself. Quite the contrary: According to media reports, three jurors believed Tsarnaev had acted under the influence of his older brother; two believed he was genuinely remorseful. Considering that all it takes to avoid a death sentence is a single juror who holds out for life, the fact that these jurors accepted at least one of the major themes of the defense narrative suggests that Judy Clarke and her team did their job well and that fact reinforces the same question: Why, then, was Tsarnaev nevertheless sentenced to death?
The Witherspoon case arose because the prosecution had excluded from the jury every potential juror who expressed reservations about the death penalty. The Supreme Court ruled the prosecution had gone too far—that, by sweeping "from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality [and] produced a jury uncommonly willing to condemn a man to die."
The Court ruled for Witherspoon and reversed his death sentence, but the holding ultimately proved inadequate to ensure fair and impartial juries in capital cases. Indeed, the opposite occurred. While Witherspoon began as an attempt to safeguard a criminal defendant's Sixth Amendment right to an impartial jury, it developed into a tool prosecutors use to construct exactly the type of jury the Supreme Court condemned: one uncommonly disposed to death.
The way this happened lies in what Witherspoon did not say. The Court could have said that impartial jury means just that: not favoring one side or the other. Under this reading, the prosecutor would be able to ask whether there are any potential jurors who could never impose a death sentence, even on Hitler, for example. There are some people who would say yes to that question; prominent death penalty opponent Sister Helen Prejean comes to mind. But there aren't many. Even most opponents of capital punishment are what we might call opponents with exceptions: people who have reservations about the death penalty, but are not absolutely, positively, unable to imagine a case where they would think it warranted.
What the Supreme Court said in Witherspoon was this: "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction."
The word simply in that sentence proved pivotal. It led to the process known to death penalty lawyers as "death qualification." Potential jurors could not be excluded "simply" because they had conscientious reservations, but this left open the possibility of excluding them because their reservations about capital punishment were not merely general, but were in fact categorical or absolute.
But how do we know the difference between a potential juror who has scruples that cause her to take death penalty cases especially seriously, and another potential juror whose scruples are so absolute she would never sentence anyone, even Hitler himself, to the gallows? The answer is: we ask, and we ask at length.
In a death penalty case, unlike nearly all other cases, potential jurors are questioned individually, outside the presence of any other members of the panel, by the prosecutor, the defense lawyer, even the judge, about his or her views toward the death penalty. The objective of this process, known as death-qualification, is to learn precisely where on a moral spectrum a potential juror's attitudes lie.
Imagine a five-point scale: One describes a person who is categorically opposed to the death penalty (someone like Sister Helen Prejean, if you need an example). Five describes someone who believes in executing anyone who commits murder, no exceptions whatsoever. Three is perfectly in the middle. Two is someone with reservations against the death penalty. Four is someone who leans in favor.
What the Supreme Court in Witherspoon should have said is that the prosecutor is allowed to get rid of anyone who is a 1, and the defense is allowed to get rid of anyone who is a 5, and the jury will therefore comprise people who are 2, 3, or 4 on the moral spectrum. But all you need to do to learn whether a potential juror lies at one extreme or the other is to ask two simple questions to the entire group of potential jurors: First, is there anyone here who is absolutely, positively so opposed to capital punishment that you could never, under any circumstances, vote to impose it, even against Adolph Hitler or Osama bin Laden? Second, is there anyone here who believes that anyone convicted of murder should automatically be sentenced to death?
Any potential juror who raises his or her hand in response to either question is dismissed. Anyone else may sit on the jury.
But that is not what happens. Instead, jurors are examined at great length about the subtleties of their views. This individualized questioning takes a fair amount of time, which is why it takes weeks or months to pick a jury in even the most mundane death penalty case. In Tsarnaev's case, jury selection began in early January, and opening arguments in the trial did not occur until March 4th. What happened during that time was that lawyers tried to figure out exactly how a potential juror's general attitude toward capital punishment would play out in real life.
As one might imagine, it is exceedingly rare for anyone in the United States to be either a 1 or a 5 on our scale—which means that virtually no potential juror is what is known as Witherspoon excludable. Unfortunately for capital defendants, the process of learning whether someone is Witherspoon excludable also allows prosecutors to identify the jurors who identify themselves as 2 or 3 on the moral spectrum, and prosecutors may then use their peremptory challenges—a challenge that requires no explanation or justification—to get rid of them.
Now one might ask why there is any such thing as a peremptory challenge. Why should a lawyer, whether for the prosecution or the defense, be permitted to exclude someone from jury service just because the lawyer feels like it? And indeed, peremptory challenges are a refuge for the exercise of racism, sexism, and all other sorts of bias. But despite the occasional call for their abolition, they persist, and their persistence allows prosecutors to construct juries with virtually the same profile as the jury the Supreme Court rejected in Witherspoon.
The entire range of consequences resulting from death-qualification of jury remains somewhat unknown. Substantial data, however, support the conclusion that a death-qualified jury is significantly more likely than a non death-qualified jury to convict; in other words, the process of death-qualification itself produces a jury predisposed toward the prosecution. The impact of this process on the willingness of potential jurors to sentence a defendant to death is not as well-understood, and it is difficult to assess. Nevertheless, there are reasons to believe that the pro prosecution bias created by death-qualification at the guilt phase of a capital trial continues into the punishment phase. Put another way, not only does the death-qualification process permit the prosecution to identify—and thereafter use peremptory challenges to exclude—jurors inclined against capital punishment, but the process may also have the effect of nudging neutral potential jurors—those who initially self-identify as a 3 on the moral scale—toward the pro death penalty end of the spectrum.
It is obviously impossible to know precisely whether or how death-qualification shaped the Tsarnaev jury. What we do know, however, is that at least three jurors accepted the defense narrative, yet nonetheless voted for death. We also know that only fifteen percent of Bostonians expressed support for executing Tsarnaev. Even if the polling data overestimated opposition to the death penalty by 200 hundred percent, we would still expect to find at least one death penalty opponent on Tsarnaev's jury; and that one opponent would be all it takes to spare Tsarnaev's life. That single vote, however, may have been identified and nullified by the prosecution before the first witness was called.
The fact the process is rigged leads the government to spend obscene sums chasing death sentences it otherwise would not. The cost of the Tsarnaev case has not been reliably reported, but it can be calculated by adding up the lawyer and investigator time, for both the defense and prosecution (which involved interviewing literally scores if not hundreds of witnesses all over the world); the court time, including the cost of security; the cost of experts; and the cost of conducting the trial itself (which included transporting and housing witnesses, paying jurors, and the like). Having done the math in mundane capital cases, I can safely estimate that the aggregate cost to date (i.e., before any appeals) easily exceeds five million dollars, and I would not be surprised if the cost were twice that.
There are of course some people who say one cannot place a price on justice, and that sentiment might well be true, but ten million dollars the U.S. government spends pursuing a death sentence is ten million dollars it is not spending doing something else. The question, therefore, is not whether justice has a price; the question is whether spending millions of dollars to execute someone is worth the tradeoff. No rational government would make that tradeoff without being supremely confident the expenditure would produce the outcome it was seeking. The government's confidence is founded because the process is rigged.
In capital cases, we have replaced the presumption of innocence with the presumption of death. Consequently, defendants who face possible execution, even when they are represented by a legal dream team, will still probably lose. As Judy Clarke conceded in her opening statement, Dzhokhar Tsarnaev's guilt was not in question, but that fact did not resolve the moral question of whether to execute him. That her client was ultimately sentenced to death despite opposition to that sentence from the relevant community does not reflect failure on the part of the defense team. It reflects the fundamental absence of fairness in our machinery of death.
About the Author
David R. Dow is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice. His books include Executed on a Technicality, The Autobiography of an Execution, and, most recently, Things I've Learned from Dying. Follow him on Twitter at @drdow.