By Theodore Chakos
“More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.” –Justice Frankfurter
Dzhokhar Tsarnaev may not deserve our sympathy and compassion, but he deserved a different jury in a different place.
Nearly three years ago, Dzhokhar Tsarnaev helped detonate two bombs during the Boston Marathon. He was tried a year and a half later in a courtroom located less than two miles away from the site of the bombing and received a death sentence. The latest event in the Tsarnaev saga happened last week: the Judge, George O’Toole, denied Dzhokar’s motion for a new trial, and ordered him to pay 101 million dollars to his victims.
On their way to jury selection, prospective jurors would pass armed guards, armed boats, snipers, bomb squads, and a sea of reporters and victims of the attack. The judge would then ask them a series of questions, often convoluted and occasionally unintelligible, in an attempt to ascertain their connection to the bombing and whether or not the juror could be fair.
Now, Boston is a technically a city, but it has the feel of a tight-knit community. Most of the residents of Boston had an emotional connection either to the Marathon or to the victims. So it should not be surprising that when Boston was attacked, the people in it came together. After the attack, the community endeavored to support the victims by creating T-Shirts and billboards and signs that raised money for the various charities that dedicated their efforts to make Boston life normal again.
A year after the bombing, Boston marched and held a moment of silence at the finish line of the Marathon. Together.
All of this was still fresh in the minds of the prospective jurors when the judge asked them (as they always do) some variant of the question “can you be fair?”
During questioning, one of the prospective jurors began to cry as she talked about the 8-year old boy who was killed in the bombing. She was excused. But to the people standing next to her, “can you be fair?”
Even before the trial began, almost all of Boston had thought he was guilty and many wanted him to receive the death penalty. Some of the potential jurors, as they indicated on their pre-trial questionnaires, didn’t even think there should be a trial.
Each and every juror was asked a form of the question “can you be fair?” But the better question is, “could anyone?”
There has been much debate about whether a partial jury sat for the trial. But in extreme situations, due process doesn’t just protect defendants against a biased individual; it also protects defendants against an environment that is so emotionally charged that it could influence the conclusion that the jury came to. That is what happened in this case.
When a juror is asked whether or not she could be fair, she may say yes. She may even believe it. But, in such a charged atmosphere, even she cannot be sure if she is actually unbiased because we, as people, are not aware of the ways our environment affects us. And if she doesn’t know, the lawyers and the judge won’t either.
Asking questions about the environment won’t help. By asking questions about how her friends and neighbors would react if the jury reached an unfavorable result, one risks reinforcing the bias against the defendant.
Due process requires that when a juror says that she can be fair, we can trust that she can actually be fair. After all, due process is the “scrupulous and diligent search for truth” and it prevents “even the probability of unfairness.” Therefore, in extreme situations, the law presumes that there is prejudice against the defendant. Any trial held under such circumstances, no matter how much jurors say they are impartial, violates due process.
This was an extreme circumstance and when Dzhokar was tried, his right to due process was violated.
It’s true that it would be difficult to find people who had no knowledge of the trial. But there would not have been the same intense emotional atmosphere. There wouldn’t be the same attachment to the victims of the attack or to the Boston community.
It’s also true that the evidence is overwhelming that Tsarnaev would have been found guilty. But “arriving at the right result” is no justification for denying the process to get there. Due process is what separates our system of justice—as flawed as it may be—from corrupt systems found in other parts of the world.
And who knows? A different jury in a different place might not have given him the death penalty.
Dzhokhar Tsarnaev isn’t a sympathetic figure—particularly in Boston. But “it is the proclaimed lawless man, notorious in his community, who most needs protection from that notoriety, so that we can fairly distinguish him from the lawful.”