THE BOSTON BOMBING JURORS: CAN TSARNAEV GET A “FAIR” JURY?

The attorneys in the Boston Bombing trial have the daunting task of picking a fair and impartial jury in one of the most highly publicized crimes in our country’s recent history. Is it possible to find a juror who has no knowledge of the case? Unlikely. Is it possible to find someone who has not formed an opinion about the case? Doubtful. Everyone seems to agree that the balance is definitely tipped in favor of the prosecution. But does that mean that it’s impossible to get a “fair jury”? Maybe not.

While most potential jurors will come to the jury selection process with some knowledge about the bombings and an opinion about the fate of the bomber, there are some who understand that what jurors hear in court may be different than what they have heard in the media. Finding jurors who will base a decision on the evidence and not their preformed opinions and values will be the key to jury selection. While it is interesting to ponder who might be a “good juror” or who “should serve” on this jury, the real question is who should not serve. The prosecuting and defense attorneys don’t actually get to pick their jurors; they only get to strike jurors.

So who gets struck? The defense clearly has the much harder task. First, this trial has the unique challenge of “death qualification.” To even be considered for this trial, jurors must be willing to give the death penalty. This criterion will remove the best defense jurors since anyone who is opposed to the death penalty will not serve. Not only will the panel include jurors who are willing to impose death, some polls show that 70% of Americans are in favor of the death penalty specifically for Dzhokhar Tsarnaev. This is a significantly higher percentage than the general support for the death penalty. If the defense is lucky, some jurors will admit in the screening process that they have already decided that punishment by death is required and they will be removed by the judge for cause (on the grounds that there is a specific reason that this person can not be fair and unbiased), but that will not level the playing field. The scale will still be tipped in favor of the prosecution. Assuming we don’t have any stealth jurors who want on for fame or to “ensure justice,” the best case scenario for defendants is a pool of jurors who are not opposed to the death penalty, but also do not come ready to sentence the bomber to death.

Does that mean they can be fair? What can be done to level the playing field even more? One place to start is by looking at a psychological trait called Authoritarianism, which has proven to be an influential factor on verdicts, particularly in criminal trials. Authoritarian jurors often favor the prosecution, and are more likely to seek the death penalty than non-Authoritarian jurors. Authoritarians have a desire for rules, traditional values, and strong leadership. These jurors tend to strongly disfavor people who challenge or deviate from the norm. In today’s world, Authoritarians may be hostile to those supporting gay marriage, marijuana legalization, or those protesting what they perceive to be racially motivated police shootings. Asking prospective jurors about their opinions toward leadership, traditional values, and lifestyle choices could reveal strong Authoritarianism.

Authoritarian jurors will strongly agree that:

• Our country is in need of a strong leader who will get us back to the laws and values on which our country was founded.

• I would rather trust the judgment of the authority figures than the free-thinkers who are trying to shake things up.

• The moral fiber of our nation is being destroyed by people rebelling against our traditional values.

• I live my life based on what some might call “old-fashioned values.”

• We need to be tougher on groups that break away from the rules that govern our land.

Authoritarians will strongly disagree that:

• Free-thinking and radical views are the key to progress in our society.

• There is no “right” way to think, feel, or behave; I support every individual’s choices about who to live with and love.

• People who challenge the majority view should be respected for their courage.

• Acceptance can only happen when people are praised for defying traditional family values.

• Most of the rules governing the way we live our lives are outdated.

• Thankfully young people today feel comfortable protesting social injustices.

In the oral voir dire process, the defense attorneys should include a series of questions to find jurors who “score high” on the Authoritarian scale. The strongest Authoritarians may present grounds for further cause challenges, and certainly should be prioritized high on the list of peremptory challenges. While removal of these jurors will not result in a neutral panel, it is one notch closer to getting a jury who may actually reach a decision on the facts presented at trial rather than on the values and bias they bring.