To date, we have had 15 days of voir dire in the case of USA v. Dzhokhar Tsarnaev.  There have been 193 prospective jurors interviewed so far and it has not been made public which jurors are being kept for the next stage and which jurors are dismissed.  In addition, there have been numerous reports that Judge O’Toole stated 54 of these 193 jurors have been deemed qualified to serve.  So the court is close to having all the qualified jurors needed to move on to the next phase of jury selection.  O’Toole plans to reveal all 70 qualified jurors once that number is reached.

It’s really difficult for me to believe that 54 jurors are truly qualified to serve on this jury.  It is almost impossible to find anyone in the Boston area who has not been affected in some way.  But I’m not so sure being personally affected or connected bears any real importance to this court.  So what exactly makes jurors qualified according to Judge O’Toole?  For one thing, it appears many jurors are being directly asked if they could vote for the death penalty.  Is this all that makes them qualified?  In my opinion, this simple line of questioning is encouraging jurors to think Tsarnaev’s guilt has already been decided and all the jurors need to decide is death penalty or life without parole.  Isn’t it bad enough that so many people feel he is guilty prior to trial without encouraging them?  “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” according to O’Toole.  Who can really do that?

Here is one example of O’Toole’s successful voir dire jurors, as quoted by WhoWhatWhy:

O’Toole pointed to a particular juror as an example of fair-mindedness:  One human resources professional explained that it was a common occurrence in her experience for her initial impression of the merits of a workplace controversy to be altered or even reversed when she had information from a fuller or more careful investigation, and so she had learned to keep her judgment suspended until she had all the necessary information.  But this same juror also said, “It’s hard to not think that he’s [the defendant is] guilty.  I believe in an eye for an eye.”  One of this juror’s colleagues is a former FBI agent on the witness list.  She also knows someone who was emotionally harmed by the bombing.  And yet O’Toole believes this juror can be fair-minded.

Says Charles Pierce of Esquire:

It was also revealed that one of the potential jurors was an emergency room physician who treated a gunshot victim named, wait for it … Dzhokhar Tsarnaev.

How can this be?  How does such a person get past the first stage of qualifying, the questionnaire?  Either the court is not asking the right questions, or the prospective jurors are not answering correctly.

Even Judge O’Toole must be getting impatient with this process, as it has certainly not gone according to his plan (although I’m sure he’ll never admit it!)  Did O’Toole really believe they could get through 40 jurors each day as initially planned?  Forty was quite the confident (or foolish) number of jurors to interview and qualify daily.  But we must continue this wanton process however long it may take, as the court (or the puppet masters) are determined to see it through to the end.  Unfortunately, this determination is not always being viewed as positive.  Pierce also says:

Either Judge O’Toole in Boston really wants this trial, or he’s afraid he’ll be pilloried for passing the buck if he moves it.  But neither of those petty concerns should trump Dzhokhar Tsarnaev’s right to as impartial a jury, and as fair a trial, as he can possibly get.

A Brennan Center For Justice headline says it candidly:  Can Tsarnaev Get A Fair Trial In Boston?  Of Course Not.  From that article, regarding O’Toole’s opinion that jurors can set aside their impression that Tsarnaev is guilty:

This standard — one of convenience, not principle — renders meaningless a defendant’s constitutional right to a fair trial by making venue requests virtually impossible to win no matter how much prejudicial pretrial publicity infuses a jurisdiction rocked by monumental crime. … The venue rulings so far in the Tsarnaev case (and there may be more to come after jury selection gets underway) tell the defendant, his prospective jurors, and the world that the law is content to take it on faith that Massachusetts’ residents, including those who live and work at or near the blast site, will be able to be of two minds when they swear an oath to give Tsarnaev his constitutional presumption of innocence. That they will unlearn what they have learned about him, forget what they have seen about his brother, and clear out of their heads the sounds they have strained to hear, week after week after week, since April 2013. … All of this is unconstitutional, absurd, and contrary to human nature, but it is by no means an accident (emphasis supplied).

To finish, here are a few thoughts from jurors whom I hope will not be found as qualified:

  • Juror #186 said seeing the Boylston St. surveillance video from Lord & Taylor helped her form opinion that Tsarnaev is guilty.  Would this be “the” video that prosecution speaks of, the super-incriminating video that has not been released or even leaked to the public?  Or is this the 60 Minutes video that is part real footage and part fantasy from the minds of the FBI?
  • Juror #116:  “Not guilty is not a choice, because YOU [Judge O’Toole] told us we were choosing between life and death.”  Says she didn’t realize “not guilty” was a choice.
  • And one of my personal favorites from Juror #119:  “It’s time to see if the defense can bring the facts forth and change what we know from the media.”