Why do we allow troglodytes to sentence people to death?

Even though the death verdict delivered by the jury yesterday in the Tsarnaev case did not surprise me, I can’t stop thinking about it. Given the relatively short amount of time the jury took to arrive at its verdict, I believe most jurors probably started the deliberations having already decided to vote for death. That troubles me and has led me to ask why do we let troglodytes sentence people to death? This is my answer.
Time for a reality check and discussion regarding yet another reason to abolish the death penalty in this country. The Tsarnaev jury was a bad jury, which is what you tend to get when every member of the jury has survived the death qualification process. That means that every member of that jury declared under oath that they would sentence Jahar Tsarnaev to death, if the evidence introduced during the trial proved his guilt beyond a reasonable doubt and the court’s instructions authorized them to vote to kill him.

Prospective jurors who either refused to sentence him or anyone else to death or who expressed doubts whether they could vote to kill anyone for any reason were excused because they could not follow the law and kill people, despite legal justification to do so. Sounds surreal, doesn’t it? I’m thinking the death qualified jurors should be bussed somewhere special for intensive psychotherapy sessions to find out what the hell is wrong with them and remedial sensitivity training training before slowly easing them back into their lives.

Given the peculiar human residue that made the final cut, it should come as no surprise that some of them reportedly did not believe Tamerlan was the primary mover and some of them thought that if they sentenced Jahar to life without possibility of parole (LWOP), he would be stirring up trouble at the ADX Florence supermax prison by recruiting inmates to join him in jihad to take over the damn place. Never mind that he has not attempted to recruit any jihadis or caused any trouble during his two years of incarceration awaiting trial. You just never know what these devilish demons will do.
The sad truth is that this type of fact-free speculation is probably the rule rather than the exception among death qualified jurors. Experience has shown that jurors who are willing to impose the death penalty, if the evidence and the jury instructions allow it, are also more likely to convict a defendant than scrupled jurors who could not sentence someone to death.

Death qualified jurors generally respect authority figures like police, especially if they wear a suit like all detectives and FBI agents do, and they assume they are honest public servants who are saving them from the criminal element that is infesting and destroying our society. Yes, that would be black people, Latinos and anyone who is poor and marginalized. They are so clueless, they do not realize they are prejudiced and they think killers should be put down like rabid dogs.

The FBI takes advantage of their presumption that they are mini gods by designating all of their agents as a “Special Agent” so-in-so, as if they’d won a prize for superior crime detection or something. FBI agents never videotape or audio record suspect interviews because they figure they will always win swearing contests against defendants who claim they are mistaken or lying about some damaging admission they supposedly made during the interview.

They assume cops never intentionally lie and they also assume they have better memories than defendants or civilian witnesses because, after all, they are trained observers risking their lives every day to keep us safe.

These assumptions have no basis in fact, of course, and they amount to a presumption of guilt when they are supposed to be attempting to presume the defendant is innocent.

Utterly blind to their own prejudices, they think they are performing a public service by doing whatever the prosecutor tells them to do.

That’s the kind of juror we see over and over in death penalty cases, along with the ones who are too stupid to pore piss out of a boot.

That places all defendants in capital cases at a considerable disadvantage and there is only one way to fix the problem: Abolish the death penalty.


Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.


  1. Libertarian
    May 16, 2015 at 3:40 pm

    I’ve noticed that all the comment boards are lit up with this same kind of ignorance. Maybe we need to face the fact that the United States is not the intelligent “First World Nation” it says it is. News websites in boston are especially bad. It is all based on emotions.

    I’m getting drained trying over and over to talk sense into these people. It has to be the most draining thing, because all of them got the little ques in what to say from their media outlets. One after another they all sound the same, and none of them even remotely try to understand or take in what we are saying. I do believe many must be paid shills.

    The jurors couldn’t even comprehend the Verdict Form either, showing they did not have the qualifications to be determining if someone lives or dies.

    They need to change how the Jury works. But how do you create more intelligent jury pools, when it benefits the System to have ignorant ones. One News person at the courthouse said some of the jurors started crying. Cognitive dissonance?

  2. Carolyn D
    May 16, 2015 at 4:40 pm

    Masha Gessen had the same observation I did about the jury forewoman. Check out her article:

    I felt the restaurant manager/jury forewoman was bad news for the defense and I wonder how she was able to get through. Bad call by Bruck/Clarke. The woman actually smiled when prosecutors were tearing defense witnesses to shreds.

  3. Chris Maukonen
    May 16, 2015 at 4:50 pm

    Interesting thing about the whole “Boston Bombing” indecent and aftermath. Most of those who participate and view it are from the upper crust.

    Wonder how much publicity and drama and action it would have generated if only poor and black and minorities were involved.

  4. bsbafflesbrains
    May 16, 2015 at 5:10 pm

    Very good point. Remember how the haves wanted to run the NY marathon after hurricane Sandy?

  5. Chris Maukonen
    May 16, 2015 at 5:42 pm

    No..not really. But I have not been paying close attention to the Boston thing either since I really do not care what happens to the “haves”.

  6. Shutter
    May 16, 2015 at 6:38 pm

    “…every member of that jury declared under oath that they would sentence Jahar Tsarnaev to death…”

    I always wondered about this pre-screening to verify the lethality of a prospective juror. It seems so close to a wink-wink nod-nod question. Wouldn’t it be more fair to NOT ask the question, to not preload the jury box with mouth-breathers, eager for the kill?

  7. knowlyn
    May 16, 2015 at 6:54 pm

    I posted this over at the previous blog, nothing profound, but I thought I’d re-post here since it deals with juries:
    MIB–I’m wondering if your earlier stated principle that these cases are won/lost in jury selection didn’t prove very true here. Just from my own observations “listening” to voir dire as reported and then reading the break-out in the Globe’s piece on the jurors about their stated death penalty beliefs, I had a bad feeling from the beginning. They didn’t get a single person who called themselves “anti-dp” but said they would follow the law on to the jury (I think one was an alternate). They were mostly defined by the Globe as “open” to it. People made a big deal about this being in eastern MA, so that would help given the big dp opposition there, but I’ve come to wonder (w/out being able to statistically prove it) whether that didn’t actually work against them. More opposition in the pool may have just meant more people more strongly opposed and, therefore, unwilling to even consider it and, thus, more people from a wider array of viewpoints dismissed.

    Obviously, the evidence here was brutal, so even a few who saw themselves as “anti” may have been swayed, but it seems possible with a slightly more anti attitude, one might have gotten someone a bit more able to buy the he’s young and not a problem-prisoner arguments for life. I guess this might be a statement worthy of Captain Obvious, but I thought I’d throw that out there.

  8. May 16, 2015 at 9:58 pm

    America is an Old Testament Christian Nation. Who would Jesus execute?

  9. drmyk
    May 17, 2015 at 12:11 am

    Just because you disagree with the findings of the jury does not mean that they are bad jurors. Calling them childish names doesn’t advance the cause of eliminating the death penalty.

    This case was a perfect fit for the federal death penalty. The defense offered essentially nothing in the guild or penalty phases. I’m not sure how another verdict could have been obtained.

  10. knowlyn
    May 17, 2015 at 12:15 am

    Childish is hardly the word I’d use for “troglodytes.”
    As for how another verdict could have been obtained? By any one of the jurors choosing a life sentence and not choosing to sign their name to the death sentence.

  11. drmyk
    May 17, 2015 at 12:53 am

    It was a childish ad hominem. It served no purpose in advancing the debate. Just because its a fancy word doesn’t mean it isn’t childish.

    The author of the post is frustrated by the verdict because he disagrees with the law. And the law, and the jurors, disagree with him. Calling the jurors names isn’t productive. I’m surprised we’ve reduced the level of debate to insults.

  12. knowlyn
    May 17, 2015 at 9:02 am

    Fair enough. Although given how much some of these individuals in voir dire talked about themselves as basically knowing nothing about nothing, ‘troglodytes’ might actually be a fairly accurate description.
    I’m genuinely curious of your own views for advancing the debate.

  13. Carolyn D
    May 17, 2015 at 12:00 pm

    Was admitting guilt bad strategy? Now, the media is blaming Jahar for the death penalty verdict because of his lack of emotion. It’s ridiculous! The government steamrolled this defense. And, the defense was too nice.

  14. brucej
    May 17, 2015 at 12:01 pm

    calling people ‘subhuman’ and declaring that they should need enforced, involuntary ‘phycological treatment’ before ‘easing them back into their lives’ is a wee bit more authoritarian than ‘childish’. Ironically it displays the very rigidity in thinking he’s decrying the jurors for.

  15. skeptonomist
    May 17, 2015 at 12:40 pm

    The blame for the death penalty can’t be put on juries. The laws were passed by democratically-elected legislatures, approved by courts whose members were sometimes directly elected and more often appointed. The Supreme-Court justices who overturned the ban on the death penalty were appointed by Presidents who were actually elected (this was before George Bush). Polls have been distinctly in favor of the death penalty for the last 40 years.

    The death penalty may be barbaric and out of step with the rest of the world, but it’s the result of the democratic process and is the will of the people (in the USA). Its application to Tsarnaev is probably not a good point of attack to try to change the overall attitude. Not many will be convinced that Tsarnaev in particular should be exempted from a death-penalty law.

  16. knowlyn
    May 17, 2015 at 1:01 pm

    I doubt the point is that he “in particular” should be exempted. And while you are certainly correct in laying out the laws, courts, etc. that make the death penalty the law, I don’t see why it isn’t fair to say that any given death sentence is the doing of the individuals who choose it as a sentence.

  17. Mark
    May 17, 2015 at 1:53 pm

    Not sure it is so ridiculous. They are referring to his lack of show of remorse. Using Sister Prejean as proxy wasn’t quite enough. The jury watched Jahar for 2 months waiting for some sign of remorse and sympathy. Not only didn’t they see it, some believe Jahar demonstrated the opposite. I am sorry, but I believe that if Jahar had acted less indifferent and more sympathetic and interested in the victims, that this sentence would have been less likely.

  18. Carolyn D
    May 17, 2015 at 4:18 pm

    Mark, I just don’t know if people would have believed him if he had shown remorse.

  19. Carolyn D
    May 17, 2015 at 4:24 pm

    I think the case should have been moved out of Boston. Following the case on Twitter, I just kept encountering things in the trial that convinced me that Jahar was not going to get a fair trial in Boston.

    I think the evidence that was allowed to be presented was overly prejudicial. I mentioned this before – about bombs not being personal. The prosecution made them personal. It’s as though the bomb victims were chosen by the Boston bombers, not that they were randomly killed or hurt just based on where they were standing. The repeated use of Martin Richard’s clothing with Boston sports teams on them – that was totally designed to arouse the feeling that the City of Boston was singled out for attack. I guess showing autopsy photos is customary. But the whole effect of all the blood and gore made it difficult for the jury to feel the defendant deserved any mercy.

  20. Carolyn D
    May 17, 2015 at 4:24 pm

    Harry Manion, a legal expert for WBZ in Boston, predicts that Jahar will be executed within 5-7 years. What say you other legal types?

  21. Mark
    May 17, 2015 at 5:18 pm

    I cant help but believe that at least one juror would have believed. I think what they were all unanimous about was his show of no remorse or indifference. Remember they sat there all day everyday watching. If the only time they ever experienced any human sorrow by him was for a member of his own family, it would definately have an impact on the jury. What we dont know is if this was by his choice or if he was complying with instructions by his counsel (but I find it hard to believe they wouldnt have noted the reactions and opinions about his demeanor and modified this strategy). But, we will never know now, at least not with this same jury anyway.

  22. Carolyn D
    May 17, 2015 at 5:19 pm

    I imagine the jury will be interviewed and they will talk about this.

  23. Mark
    May 17, 2015 at 5:21 pm

    I absolutely agree that the trial should have been moved out of Boston. The celebration in the streets of Boston after the verdict was read was concrete evidence.
    So, who is more at fault for that not happening– his legal team, or the judge(s) who denied the motions?

  24. knowlyn
    May 17, 2015 at 5:39 pm

    Was there a celebration in the streets? I hadn’t heard about that.

  25. Carolyn D
    May 17, 2015 at 8:53 pm

    I hadn’t heard about celebration in the streets. I saw that a building near the courthouse was lit up in Boston Strong colors.

  26. Carolyn D
    May 17, 2015 at 8:59 pm

    Judge O’Toole and two judges from the 1st Circuit Court of Appeals. One of the 3-judge panel came down hard in favor of moving the trial. Check this out.