by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter
Almost two years after the Boston Marathon bombings, the trial of the accused bomber, Dzhokhar Tsarnaev, is underway in a federal courthouse about two miles from the scene of the horrific events of that April day.
Tsarnaev was charged with 30 federal crimes, 17 of which carry a possible death sentence. A lengthy jury selection process delayed the start of the trial, with approximately 1,350 individuals completing juror questionnaires. The defense filed four motions to change the venue, arguing that the widespread pre-trial media coverage and universal emotional impact of the bombings made a fair – and constitutionally sound – trial impossible. Each of these motions failed, and rightfully so. Once it began, the trial took an unexpected turn when Tsarnaev’s attorney admitted her client’s guilt during opening statements, surprising everyone – except, hopefully, her client. While the prosecution still has to prove its case, this trial is largely now about whether Tsarnaev will live or die.
The defense’s efforts to move the trial and its recent admission of their client’s guilt raise several questions. Would the defense lawyers have admitted guilt so quickly if the trial had been held in a different venue? Likely so. While, as noted, the defense unsuccessfully tried four times to have the trial relocated, it is highly likely that the focus would still have been on saving their client’s life, rather than arguing his innocence. The burden is on the prosecution, of course, but the evidence against Tsarnaev is overwhelming, from a video showing him set the backpack containing the bomb near a crowd of marathon spectators to his identification by a victim who lost both of his legs. Moving the trial from Massachusetts would not have lessened this evidence’s weight.
In deciding to admit guilt, the defense team also likely had in mind research suggesting that jurors selected for death penalty cases are more prone to find guilt because the attention given to the sentencing phase during the pre-trial voir dire process suggests that there will be one. If that research is accurate – a topic beyond the focus of this short post – that bias would exist in Baltimore as well as in Boston. (Interestingly, in 2005 the Massachusetts Governors Council on Capital Punishment – commissioned by then-Governor Mitt Romney to consider ways to make the imposition of a state death penalty “as infallible . . . as humanly possible” – proposed in its report that separate juries be empanelled for the guilt and sentencing phases of a capital trial to address this potential bias.) Given the evidence against their client, it is likely that the defense strategy to admit guilt and focus on saving their client’s life would have been the same if the trial was held hundreds of miles from the scene of the marathon tragedy.