Jury Selection in Marathon Bombing Case: A Mini-Marathon Indeed

Yesterday, an unexplained cancellation of court proceedings, accompanied by sealed filings from both sides, prompted a rash of speculation and second-guessing, especially by an admittedly cabin-fevered press corps. One local attorney went as far as predicting that the government might be in the process of "taking death off the table" (or something like that) out of concerns over a prolonged venue fight and/or granting the defendant a soap-box forum by continuing to trial. With due respect for differences in opinion, my response to that is one word. "What?" Believe me, that's the last thing the government is thinking right now and almost certainly not what was behind yesterday's cancellation. Now, it's always a risk to predict the nature and contents of sealed filings, which is why the parties take the time to seal them. However, if I had to guess, I would speculate that there is a far greater chance yesterday's filings relate to a last minute effort by the defense to unseal the impounded jury questionnaire and many of the written jury answers in order to bolster/supplement their recent argument in the appeals court before a decision issues, as well as the government's opposition to the same, than they do to any alleged plea negotiation. (Yes, an initial plea agreement can sometimes be filed under seal in federal court, but it usually does not occasion simultaneous filings by both sides.) If not related to an effort to unseal juror answers that are currently impounded, the other possibility is yesterday's motions relate to the defense requesting additional peremptory challenges (no cause juror dismissals) beyond the 20 they've been allotted for regular jurors (they have 3 more for alternates), now that the end of the selection process is drawing nigh, as well as the government's opposition; or the parties could simply be seeking more time to review the 70 or so jurors the Court has deemed "impartial" before proceeding to the final selection phase.

Again, though, I can only speculate, and since none of my guess-work would not, of necessity, require a day long postponement of proceedings (which could be nothing more than one of the principal participants feeling "under the weather"), one is still left to wonder if anything else could be going on. After 33 years of active participation in the criminal justice system as a former state and federal prosecutor and now longtime defense-attorney, I have learned never to say never. However, instinct and experience tell me if any pretrial disposition is, indeed, under discussion at this late stage in proceedings, there is a far greater chance it relates to the defense, perhaps recognizing their venue change motion is likely going nowhere, exploring whether or not it might be in their client's interest to now concede guilt (as happened in 2003 in United States v. Sampson), and immediately move into the penalty phase where the sole issue is life or death. My thought behind this is, now that they've had the benefit of nearly 2 months of juror responses, the defense team has the data to discern that while a majority of those polled may have had preconceived feeling about their client's guilt, a substantial number of those remaining in the pool appear to be more conflicted when it comes to imposing the death penalty. Since there is always a grave risk that the same jury that heard and weighed the (expected) mounds of evidence presented to establish the defendant's culpability during the guilt phase might be more inclined to sentence him to death during the penalty phase, it's possible that the Tsarnaev defense team now has enough data to justify a decision solely to litigate life or death; an ultimate jury decision in which the defendant's relative youth will undoubtedly factor. Now I'm not saying there isn't still a possibility of the defense now offering a guilty plea in exchange for a sentence of life in prison—that's likely always been on the table. But I am saying I don't think that's what's happening. And while I'm not even saying I think the parties are, in fact, currently engaged in some form of negotiation regarding truncated proceedings, I am saying, if they are, I believe it to be more likely the former, than the latter.

In the end, my guess is the Tsarnaev trial will be getting under way as planned soon, with the standard guilt phase first and the penalty phase second. Before it does, I will be back at you with my opinion on what to expect (and not to expect) from both sides during Opening Statements. Gee, I guess this wasn't a short blog after-all. Just like a lawyer. Beg the judge for brief rebuttal, then filibuster for another twenty minutes. Oh well. I am what I've trained to be. Sue me!