A fair and impartial jury in Boston?

A federal court in eastern Massachusetts has sifted through a pool that began with 1373 prospective jurors from the area and selected 18 to sit in judgement on Dzhokhar Tsarnaev, accused of the Boston Marathon bombing and associated mayhem.

Judge George O’Toole says the persons selected are "fair and impartial."

I have to wonder what the judge means. If ever there were a trial about which the whole world has an opinion as to whether the defendant did the deeds in question, this is one. The prosecutor has him on video, dropping off the bombs; it has been shown on TV. If these people were living in the area, they were locked down during the manhunt for the two perps. The entire community (and many more) raised money for the victims and thrilled to "Boston Strong." If the jurors weren't living under a rock, they feel part of this event, part of the reaction to the crime. From all the way out here on the west coast, I "know" Tsarnaev is guilty, for goodness sakes.

Apparently the judge did most of the pretrial questioning of potential jurors himself. According a fascinating article from radio station WBUR News whose reporters attended the entire long procedure:

O’Toole asked each potential juror if he or she had formed an opinion of Tsarnaev’s guilt or innocence. Many of them responded that indeed they had, and invariably they presumed Tsarnaev was guilty. Asked how they came to that opinion, they said they had seen, heard or read coverage in the media.

So the judge then asked these people, "Can you set aside your opinion?"

I have to wonder, how many prospects were going to tell this important black robed old white guy: "No, I can't be fair." One defense-oriented jury expert called the judge's questioning "brow-beating." But many people said they could give up what they believe to true. So the judge insists that the process has delivered a fair jury, despite polls showing that 58 percent of area residents believe Tsarnaev did it. Actually, I'm surprised the number is that low. O'Toole denied repeated defense motions to move the trial.

But getting people who claimed to have an open mind was only part of Judge O'Toole's hurdle in seating a jury. He also had to find jurors who would be willing to vote for the death penalty. That's the law. In a death penalty case, if you think the state should not be in business of killing offenders, you are barred from the jury.

Now maybe, if you think the death penalty is wrong and you live somewhere like Georgia or Texas or even California's Orange County, you are branding yourself as outside of community norms, some kind of crackpot. And just maybe, that's reason to exclude you from a jury in a locally important case. But you are not an outlier in the Boston area. Massachusetts has no death penalty; an effort to reinstate such a penalty after the marathon bombing fizzled. A Boston Globe poll in 2013 showed that 57 percent of locals supported life in prison without parole for Tsarnaev (note pretty much all respondents think he's guilty) and only 33 percent want death.

But this is a federal trial and prosecutors want an execution. So the judge was required to hunt for citizen outliers with unusual opinions to sit in judgement on the defendant. And he found people who satisfied his idea of fairness.

John Pucci, a criminal defense lawyer in Springfield, commented on the likely attributes of "death-qualified" jurors:

"By dint of (jurors') willingness to impose the death penalty, they might be more willing to accept the government's version of what happened as compared to people that are opposed to the death penalty."

There's unfortunately considerable research showing that such juries tend to be prosecution friendly.

Perhaps insistence by prosecutors (that means the federal Justice Department) on seeking the death penalty will have more influence on the outcome of this trial than any of the jurors who have to sit through the proceedings. Or perhaps not. Juries can surprise.