Legal Docket: Mayhem at the Marathon

STAR SPANGLED BANNER AND FLYOVER

JENNY ROUGH, COHOST: Marathon Monday. Boston. April 18th, 2022. Trees along the Charles River have come to life with signs of spring. Crowds stream in all directions. Sidewalks are a blur of bright yellow and blue—official marathon colors. Yellow and blue painted on signs, stamped on swag, and definitely the running gear fashion trend for shorts, socks, pullovers, caps, and tops. The marathon seems to be on everyone’s mind. From the 9,000 race committee volunteers—

JENNY SOT: Hi. I’m here for my bib pickup.

VOLUNTEER: If you have the QR code and then the government-issued photo I.D.

JR: To the piano player entertaining diners at a restaurant on Beacon Hill—

SOT: CHARIOTS OF FIRE

JR: Even the pastor at Park Street Church couldn’t help but mention it during his Sunday morning’s service.

SERMON: We can do amazing things. Write poetry, make music and art. We can walk on the moon. We can raise children. And yes, we can even run marathons.

JR: Yes, we can even run marathons. That’s what I keep telling myself, anyway. Because the Boston Marathon attracts some of the world’s fastest runners…along with runners like me… officially number 28,890.

JENNY SOT: 9:19 in the morning. Had a breakfast of English muffin with peanut butter and honey. And the shuttle bus just arrived at the hotel to take the last set of runners to another shuttle which will take us to the starting line. I’m in the last wave, running with a charity group. It’s a beautiful day. Sunny blue skies. “This is the charity bus?” “Yep.”

JR: The elites have already started and finished by the time I walk from Athlete’s Village … to the corral, where I’m supposed to start the race.

ANNOUNCER: One minute! One minute away, Wave 4. Get ready!

JR: The night I arrived in Boston, I wandered down Boylston Street. The hubbub centered around the freshly-painted finish line, with soon-to-be runners snapping selfies next to the Boston Athletic Association’s symbol: a unicorn. A mythical creature meant to symbolize something both desirable and highly rare. Difficult to attain.

Steps away, another symbol. Eight lamp spires glowed in silence. Four in one spot; four in another. A set of twin memorials…also symbolizing something somewhat rare in the lives of most Americans, but highly undesirable. Something to be avoided, feared, and punished when those responsible are captured. Memorials remembering the bombings nine years ago.

NEWS COVERAGE MONTAGE: [EXPLOSION] In a heartbeat, the big city event with the small town family feel went up in smoke. Shattered by two explosions / We're going to need more ambulances here...more ambulances / [EXPLOSIONS] / A large puff of smoke and then ultimates chaos with people running everywhere / I saw quite a few casualties coming back. I saw one guy with his legs gone at the knees / Well the FBI is launching a massive effort to find those responsible for the deadly attack. They're going to be looking at bomb fragments. They'll also be looking at hundreds of videos from the finish line / We will get to the bottom of this. Any responsible individuals, any responsible groups, will feel the full weight of justice.  

JR: Two brothers carried out the attack. The elder brother, Tamerlan Tsarnaev, killed during the confrontation with police. Police managed to arrest the younger brother, Dzhokhar Tsarnaev. He was tried, found guilty, and sentence to death. Our case today centers on what happened at that trial.

But what happened to the families and community? Healing takes years, and leaves scars seen and unseen. The path through suffering eventually leads to an understanding that the race must go on. And in Boston, it has.

SOUND: [STARTING PISTOL]

JENNY SOT: Crossing the start of the Boston Marathon…On my way…26.2 miles to go!

THEME: I Clarence Thomas...I Sonya Sotomayor...I Stephen Breyer, I Amy Coney Barrett…do solemnly swear, I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, and that I will well and faithfully discharge the duties of the office on which I’m about to enter, so help me God…[APPLAUSE]

JR: Welcome to Legal Docket, I’m Jenny Rough.

MARY REICHARD, COHOST: And I’m Mary Reichard. This podcast is from the creative team at WORLD Radio.

MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!

MR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

MARSHALL: All persons having business before the honorable Supreme Court...

JR: Today, a case about whether evidence should be included or excluded … and a question of jury bias.

MARSHALL: God save the United States and this honorable court.

[UNDERWRITING BREAK] Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan ministries, a biblical and affordable solution to healthcare, connecting more than 280,000 Christians across the nation who help pay one another’s medical bills. More at Samaritan Ministries.org /worldpodcasts.

JR: A runner doesn’t typically start with a marathon. She might begin with a 5k, or 10k, and work her way up. Likewise, most cases don’t typically start with the Supreme Court. They’ll start with a trial, then maybe an appeal, then a select few wind up at the ultimate court of appeal, the Supreme Court.

MR: The federal court system has three main levels. Trials take place in U.S. district court, the first level. Back in 2015, Dzhokhar Tsarnaev was put on trial for carrying out the bombings at the Boston Marathon. His trial took place at the United States District Court for the District of Massachusetts. Judge George O’Toole presiding. Twelve jury members, and six alternates listened as prosecutors put on their case.

MATTHEW LEVITT: It kind of made you raise your eyebrows for a second when you first walked into the courtroom, because the courtroom was laid out differently.

Matthew Levitt is a counterterrorism expert who testified for the government at Dzhokhar Tsarnaev’s trial.

LEVITT: Because so many of the victims who survived were injured in the lower half of their bodies, because the devices were placed on the ground, they had to set up the courtroom differently so that there could be a ramp so that victims, who were testifying, would be able to walk up the ramp with their crutches or be wheeled up the ramp.

MR: On that Marathon Monday in 2013, Dzhokhar’s older brother detonated a bomb in a crowded area for spectators near the final stretch. Thirteen seconds later, Dzhokhar set off a second bomb. The bombings killed three spectators. Seventeen people lost limbs. Others lost hearing or were left with life-altering injuries.

That different trial courtroom arrangement Levitt just described … it meant that when he took the witness stand to testify for the government, he sat near a person he typically wouldn’t: the defendant.

LEVITT: So Tsarnaev was actually quite close to me, just a few feet away when I was testifying. And he did not much like what I had to say.

JR: Tsarnaev entered a plea of innocence. Yet on the first day of trial, Tsarnaev’s own lawyers admitted: He did it. A tactical decision made by the defense. To claim otherwise would be too incredulous. It would hurt Tsarnaev’s credibility, not to mention strain the patience of the jury!

MR: So, instead of presenting evidence to refute the allegations that Tsarnaev carried out the attacks, he shifted the blame to his brother. He claimed Tamerlan masterminded the attack. And put great pressure on young Dzhokhar to carry it out. Tamerlan was 26 the day of the bombings. Dzhokhar was 19.

SOUND OF 2013 BOSTON MARATHON

JR: The Boston Marathon is a point-to-point race. The course starts in Hopkinton, Massachusetts. A rural community. Population 18,000, directly west of Boston. 26.2 miles away. From there, the course passes through eight cities and towns. Tim Kilduff is president of the 26.2 Foundation. It promotes all things marathon. He’s also one of the former race directors for the Boston Marathon.

TIM KILDUFF: The course itself—it just simply is probably the most intriguing part of the race. You know, 26.2 miles can be mapped out over all kinds of terrain...

JR: It's similar to the Athens Marathon. It runs from Marathon, Greece, to Athens.

KILDUFF: The first part of the Boston race is…it’s a downhill grade all the way from Hopkinton through Ashland. Framingham it starts to level out.

JENNY SOT: Okay, coming up on Mile 6. About to cross over that here in a second. In Framingham…Okay, I’m going to get some water.

JR: Water stations begin at Mile 2 and are set up at every mile after that. The course is marked in places with two parallel blue lines. Painted by the Boston Athletic Association. The B.A.A.

KILDUFF: It’s pretty dramatic. The B.A.A. decided a couple of years ago to add the first mile…the blue lines during the first mile they’ve done that. And it’s actually kind of exciting. But you also pick it up at the end.

JR: Perfect. Keep those two lines in mind. Because in this court case, we are also going to track along two lines. Two specific things happened at the trial that ended up before the Supreme Court.

MR: The first track has to do with evidence to try to prove Tamerlan dominated Dzhokhar. The second relates to the jury. We’ll stay on the evidence track first. Expert witness Matthew Levitt’s job at Dzhokhar Tsarnaev’s trial? To help the government prove Tsarnaev acted of his own free will.

LEVITT: The defense certainly tried to make the case that he was just a follower, and he wasn’t the main guy…What prosecutors tried to prove…was…that this really was kind of a case with terrorist intent.

To be clear, Levitt wasn’t a fact witness. He wasn’t at the marathon or involved with Tsarnaev in any way.

LEVITT: I’ve never met this guy, I have nothing to do with this guy…I’m just brought in to explain the context. So there’s going to be a lot of terrorist content, a lot of terms, there’s going to be a lot of Arabic words…things that are found on his computer, in his statements.

JR: Let’s start with one of those terms. You’ve heard it mentioned a few times already: terrorism. What makes something not just an act of violence … but an act of terrorism? Especially since many acts of violence are terrifying. Couldn’t mass shootings be considered terrorism? They do terrorize people. Levitt says that even within the U.S. government there are 16 or 17 different definitions.

LEVITT: But in a nutshell, to really simplify a very complicated problem…terrorism comes down to, it’s not just terrorizing people, but it’s carrying out an act of violence, targeting civilians for the purpose of seeking to effect social and political change. So it has to be targeting civilians, and it has to be for the purpose of trying to effect social and political change.

MR: Levitt testified that Tsarnaev was radicalized. That he internalized extreme ideas and acted on them. For example, Tsarnaev had looked at published material by Anwar al-Awlaki, an al Qaeda propagandist.

LEVITT: So you know, So, for example, Inspire magazine, which is published by al Qaeda in the Arabian Peninsula, glossy, very kind of, you know, Sports Illustrated, Vogue style.

MR: Written in the English language with English vernacular. Levitt said al-Awlaki’s material starts off with a focus on Islam 101. Not radical. Phase two gets much more radical. To the point that it explicitly calls for violence targeting civilians, Americans.

LEVITT: And then in phase three moves to mobilization.

MR: Not only that it’s a requirement to do it, but also a virtuous form of religious service. And finally, the nuts and bolts:

LEVITT: Here’s how to do it. So you know, his Inspire magazine had a very prominent article that came up in this case and others, “How to Build a Bomb in the Kitchen of Your Mom.” And the bombing device that was used in the Boston Marathon bombing was pretty much that device.

JR: So bombs at Mom’s … and Levitt also testified about the note in the boat. You may remember media coverage at the time: During the manhunt after the attack, authorities ordered Boston residents on lockdown while police searched for the brothers. After Tamarlan died, Dzhokhar Tsarnaev decided to hide out in a boat in the backyard of someone’s house. On the interior of the boat, he wrote a manifesto.

LEVITT: Part of which he wrote in pencil and part in blood.

The trial courtroom had state-of-the art technology. Levitt said the jurors each had their own monitor, sort of like a little TV on an arm. Each of the lawyers’ desks had a couple monitors. So did the judge.

LEVITT: We literally put up a split screen and would say, okay, here’s the quote from this, al Qaeda affiliated or Islamist affiliated where they say you have an individual duty to carry out militant jihad targeting unbelievers, and here’s that exact same quote in his note.

MR: A jury trial has phases. First, the trial phase. Guilty or innocent. Here, the jury here came back with a guilty verdict on all 30 counts. Those ranged from malicious destruction of property to using a weapon of mass destruction.

JR: Next, the penalty phase. What punishment will be imposed? Life in prison? Or death?
And here’s where the defense lawyers’ strategy really comes into play. Yes, he did it. But we’re going to present evidence to show why he should get a lighter sentence. Life in prison, not execution.

It’s in this second phase—the penalty phrase—where Tsarnaev has the chance to introduce a unique type of evidence. It’s known as mitigating evidence.

JIM BELANGER: Mitigating evidence is any evidence relevant to the defendant’s life, circumstances, or circumstances of the offense, that would warrant a juror to find that life is the appropriate sentence rather than the death penalty.

JR: Jim Belanger is a criminal defense lawyer in Tempe, Arizona. He’s also a runner, but he doesn’t run marathons. He runs ultra-marathons! He lists examples of mitigating evidence.

BELANGER: Intoxication. Intoxication is not a defense to a crime, but it’s possibly a mitigating circumstance regarding whether or not the death penalty should be imposed. A lot of it ends up being family background, history, substance abuse. I mean, what is this client’s life like that led them to the point where they ended up participating in this homicide? And jurors, please accept the fact that this mitigating evidence is substantial enough to call for a sentence of life rather than the death sentence.

JR: When he’s not running, he defending clients who are trying to outrun the death penalty. He’s been lead defense counsel in about 30 of those cases, and has consulted on about 70 more. He says courts tend to be lenient with allowing mitigating evidence.

BELANGER: I’ve almost never had mitigating evidence excluded.

MR: So here was the mitigating evidence Dzhokhar Tsarnaev wanted to present at the penalty phase: That his older brother was a stone-cold killer. For example: Tamerlan had been accused of murdering three drug dealers in Waltham, Massachusetts. The murders happened two years before the bombing, but the accusation came later… after Tamerlan was dead. 

The evidence? the accuser’s written statement pinning the murders on Tamerlan. The problem: When the accuser began to write his statement against Tamerlan, an altercation broke out between him and the FBI agents. An FBI agent shot that accuser. So that meant the written statement wouldn’t be allowed at the trial’s first phase on the grounds that it’s considered hearsay, unreliable … because the accuser cannot be called into court and questioned. He’s dead now.

But at the penalty phase, Dzhokhar argued it should be allowed—as mitigating evidence for him—that Tamarlan radicalized first and then pressured Dzhokhar to follow. Dzhokhar was under the control of a terrifying older brother.

JR: The trial court did not allow it and the jury returned a sentence of death. The court of appeals reversed, saying the trial judge should have allowed the evidence. The United States then appealed that decision, and the Supreme Court took up the case. Deputy Solicitor General Eric Feigin argued on behalf of the federal government. He said the trial-court judge was right to exclude the proposed mitigating evidence because it was too weak:

ERIC FEIGIN: We'll never know how or why three drug dealers were killed in Waltham in 2011, and none of Respondent's evolving theories justifies inserting that separate crime into the penalty phase proceedings for Respondent's own individual participation in the 2013 Marathon bombing.

But that didn’t sit well with Justice Elena Kagan.

JUSTICE ELENA KAGAN: Your entire case rests on the notion that this evidence just wasn't strong enough, that it was too, I don't know what else to call it—it didn't establish that Tamerlan had played a leading role in the Waltham murders. That's what your case is. But how is that the job of a district court to evaluate, much less decide, that question?…It's the job of the jury, isn't it, to decide on the reliability of the evidence, to decide whether it's strong evidence or weak evidence that Tamerlan, in fact, played a leading role in those other gruesome murders?

JR: Kagan continued on, showing that the trial court allowed evidence portraying Tamerlan as a bully … but wondered why not allow evidence that he might have been a murderer?

KAGAN: This court let in evidence about Tamerlan poking somebody in the chest, this court let in evidence about Tamerlan shouting at people, this court let in evidence about Tamerlan assaulting a former student, a fellow student, all because that showed what kind of person Tamerlan was and what kind of influence he might have had over his brother. And yet, this court kept out evidence that Tamerlan led a crime that resulted in three murders?

The government contended the accuser, Ibragim Todashev, had a conflict.

FEIGIN: This is very unreliable evidence because Todashev had every incentive to pin this entire thing on Tamerlan, who at that point was already dead and they knew they were looking for him.

Justice Breyer didn’t buy the government’s argument that the evidence wasn’t reliable. True, the guy who said Tamerlan murdered the three drug dealers died in the midst of the accusation. And Tamerlan is also dead and no longer around to defend the accusation. But the government used the accuser's allegation to justify getting a search warrant to search a car. If it was reliable enough for the government then, why not now?

JUSTICE STEPHEN BREYER: Now, if the government thinks it stands up enough to show probable cause at least, isn't it enough to get into a death case?…And unless there's a much tougher rule of mitigating evidence in a death case than there is to show probable cause to search a car, why doesn't this come in?

MR: Ginger Anders argued on behalf of Tsarnaev … saying the mitigating evidence of Tamerlan as an experienced killer would’ve shown the profound effect it had on his impressionable brother … and that its exclusion distorted the penalty phase. But Justice Samuel Alito asked: If the mitigating evidence had been included, evidence of a different crime, the Waltham murders, could the government then “put on a case” to refute it?

JUSTICE SAMUEL ALITO: To what degree can the prosecution then respond by introducing evidence that disputes the version of the other event?…In other words, at a trial, you don't have these mini-trials. If a person's on trial for murder X, you don't have a trial about murder Y and murder Z…Or is it one-sided? The defense gets to put in this minimally reliable evidence, but the prosecution cannot respond?

MR: Tsarnaev lawyer Anders.

GINGER ANDERS: What this Court has said over and over again, is that more evidence should come in at the capital sentencing phase, not less. And that's because we think the jury will make a more reliable sentencing determination if the jury gets to see the evidence.

JR: Justice Brett Kavanaugh asked attorney Anders for clarity on how Tamerlan’s previous murders, presuming true, had anything to do with radicalizing his younger brother, Dzhokhar.

JUSTICE BRETT KAVANAUGH: Well, I thought the evidence on how he radicalized was that he read Inspire, Al Qaeda's magazine; he read Anwar al-Awlaki's messages, and he became influenced by those and decided that he wanted to wage war against America.

ANDERS: The Waltham murders would have proven that that's not all that was going on between the brothers. Tamerlan… He demonstrated through that that he was absolutely committed, that he was irrevocably committed to the point of murdering his friend. And at that point, Dzhokhar would have faced a choice, does he follow, does he not. We already know that he was under Tamerlan's sway, and so there would have been tremendous pressure there.

JR: In other words, Dzhokhar acted under duress. Criminal defense lawyer Belanger said Dzhokhar had an incredible team of defense lawyers at trial—Belanger has worked with many of them before. But even with the country’s top attorneys by his side, duress is no easy argument to make.

BELANGER: Duress is a difficult mitigating circumstance to prove… Duress…has to be like, you’ve got my wife at gunpoint and if you don’t do X, Y, and Z I’m going to kill her.

MR: Just like that, duress has to be at a significantly high level of coercion. One that Belanger says doesn’t compute here.

BELANGER: In this case, the duress was: My brother was involved in three homicides in Waltham…And because of his capacity for violence, that caused me, the defendant, to be subject to his will. My will was overborne. Well, that’s a tough sell for a jury when you can move. You can get out of the house, you can go to Connecticut, you can go to Arizona. And it was never proven, for a variety of reasons, that his brother was involved in those homicides.

MR: On the other hand, courts do usually allow it in.

BELANGER: Why not? Right? The bottom line is, why not? I mean, you run the risk of having error if you keep it out. And if it’s tangentially relevant, let it in and see what happens.

MR: So now we’re at the end of the first half of our legal marathon. Question one: Did the trial court judge make a legal error by excluding mitigating evidence? Now we turn to the second half: the question of jury bias. How are you feeling, Jenny? Let’s check in with the tape. Are you ready for the second half?

JENNY SOT: I think I can do that again.

JR: I may not have sounded it, but I did believe what I said: That I think I can do that again. And that’s how I felt at Mile 13 at the Boston Marathon. The halfway point.

JENNY SOT: Crossing Mile 13…I remember during training runs, the first time I did 13, thinking, there’s no way I can do that twice. But the crowd just buoys you up so much. It’s a beautiful day and I’m feeling good!

At that point in the race, I was still having fun … wasn’t wanting to break my stride, as the old pop song goes. So I sucked down a mandarin orange-flavored gel. Energy! And I drank more water … so I could keep on moving!

LYRIC: Ain’t nothing gonna break my stride / Nobody gonna slow me down / Oh, no. I’ve got to keep on moving.

MR: As you said: A person can’t just decide to run the Boston Marathon. You have to qualify. Run another certified marathon during a short window before Boston. And? Run that other race within a fast time, which varies depending on age and sex. Tim Kilduff of the 26.2 Foundation:

KILDUFF: You can imagine how people feel that are within one or two minutes and then don’t get in the race. It’s rather depressing, so to speak. 

Or, another way to qualify for Boston? Sign up to run with a charity team. Like I did. But even then, you still have to meet certain requirements. Well, it’s the same for jury duty. 

CRAIG WOOD: You can’t just volunteer to do jury duty.

Craig Wood is a recently retired trial lawyer. Over the course of his career, he estimates he’s put on 100 trials. He’s going to help explain the second track in our legal marathon, question number two in the Tsarnaev case, involving jury bias.

The 6th Amendment of the U.S. Constitution guarantees criminal defendants the right to an impartial jury. One that won’t favor or discriminate against either party. And Tsarnarev said the government violated that here. So let’s examine how a person winds up on a jury. 

In order to qualify to be on a jury, you have to be a U.S. citizen. Cannot have any felonies. Courts might vary, but here are other examples of common qualifications to serve on a jury.

WOOD: You’ve resided in the jurisdiction where the court is for at least six months, you are over 18 years of age, and you’re otherwise competent…Basically, residency, age, and general competency.

MR: To find qualified jury members, a jurisdiction will start with a large selection of people. That’s called the jury pool. For that, Wood says the court will use some sort of public information system to capture as many qualified jurors as possible. Voter registration records. Automobile registration. Personal property tax records.

WOOD: If you combine all of that into a single database then you’ve probably captured a significant number of the qualified voters or qualified jurors in your jurisdiction…So that becomes the jury pool, that’s the big massive pool in any jurisdiction.

JR: The court will then summon some people from that large pool into a smaller pool to narrow the selection. Wood remembers the days when the clerk would literally pull names out of a hat!

MR: Today, it’s built-in randomized computer software. But how do you get from the jury pool to the jury box? Most courts start with a written questionnaire. And that’s what happened here. In Dzhokhar Tsarnaev’s case—

WOOD: —there was a 100-question questionnaire. That’s really extraordinary…Usually, it’s 12 to 15. Yeah, that struck me immediately that the court had sent out a 100-question questionnaire in advance of the trial. That’s a lot of data.\

JR: Here, the jury pool was filled up with 1,373 prospective jurors who received that questionnaire. The purpose of those 100 questions? To find jury bias. The court will strike prospective jurors who it determines to be biased. They won’t be allowed to serve.
Trial lawyer Craig Wood gives this example:

WOOD: I think the judge would be very inclined to dismiss people who had any connection at all to the events. So, if someone was a runner that day…that’s just too close. You’re going to have some bias. I mean, it’s going to affect how you run every race the rest of your life. It’s going to affect you emotionally…I think that if someone was working in an emergency room trauma center that received patients that day, that person is not going to be on that jury.

MR: Now, this is a capital punishment case. The stakes are high. If a prospective juror has an opinion on the death penalty that he or she cannot set aside, that person will be eliminated. Here’s Jim Belanger again, the capital criminal defense attorney you heard from earlier.

WOOD: You know, I believe in an eye for an eye, and I’ll never change…If I’m on the jury, I’m going to kill the rat bastard. Or, I could never take a life. I don’t care what the instructions are, I could never vote for the death penalty. Those people are not going to get on a jury.

JR: Other questions on the questionnaire in the Tsarnaev case focused on whether somebody has biases against people of Islamic faith.

WOOD:  If you just ask the question, are you biased against people of Islamic faith?…That’s not going to work. You can’t ask the obvious.

MR: The questions must probe deeper. That deeper probing will happen later. In person.
Once the court has reviewed the answers to the questionnaires, the court reduces the pool once again. The ones who are left show up at court.

JR: They’re still not in the final jury box though. That box will have only 12 people, plus alternates. Here, the court reduced the pool of more than a thousand prospective jurors to a panel of just over 250. At this stage, that’s what it’s called. A jury panel. And they go through a questioning process called voir dire.

MARK GERARD: The term voir dire means speak the truth.

JR: That’s Mark Gerard. He’s a jury consultant based in Newport Beach, California. His job is to help lawyers with voir dire and help them prepare arguments for trial so they can deliver their side of the story persuasively.

GERARD: The jurors are going to be sworn. The entire panel raises their right hand and swears they’ll tell the truth. And then they are going to be asked particular questions, either from the court and/or from the parties…But either way, each juror is swearing that they are willing to tell the truth on any particular question that’s asked.

MR: A good voir dire is when the lawyer asks open-ended questions that engage the prospective jurors. Get them to talk. Lawyers will listen closely. Watch body language.
Here’s trial lawyer Wood again, walking me through that deeper probing.

WOOD: Have you ever worked with anyone who is from Islamic faith?

ROUGH: No.

WOOD: Have you ever had any uncomfortable experiences with anyone of Islamic faith?

ROUGH: No. One time I went to Israel and our guide was a Muslim-turned-Christian.

WOOD: What can you tell me about that experience… 

JR: There’s no limit to the number of jurors a court can strike for cause. Such as an identified bias.

GERARD: It’s unlimited. I mean, the court is going to ultimately decide. The judge will ultimately decide whether that juror is “so biased” that he doesn’t believe the juror can be fair and impartial.

JR: That's jury consultant Gerard. Of course, a really smart judge will ask both legal teams: Do you agree this person should be struck? If both parties agree, that prevents an appeal later. You can't say the court made an error if you agreed to it.

GERARD: Sometimes the judges really drill into it because they’re trying to figure out is this juror just trying get out of jury duty, or is this juror really biased? And you know, if it looks pretty clear, the court will remove that juror in a cause strike.

JR: So the lawyers aren’t selecting anything. Reducing the large pool down to the final 12 is a process of deselection. Eliminating.

GERARD: So probably one big misnomer of people that are not in the legal system is they think you’re jury selecting. Like you’re picking jurors. I want juror 3; the other side wants juror 6; I want juror 7; I want juror 12. And that’s not what happens.

MR: Well, in the Tsarnaev case, the written questionnaire for the jury deselection included several inquiries about media coverage. And that is where this dispute arose. It centers on questions about media bias.

WOOD: Now, in these high profile cases, media bias is always a big area of questioning because people have watched the television coverage. So they had their own ideas about the cases, and the lawyers are really going to be interested in that because they lawyers are going to want to know whether they’ve already made up their minds about, you know, in the Boston case, it would be very easy to contemplate that there are people that had been called to serve on this jury who watched the whole thing on television live when the boat was being searched, and everybody knew that he was in the boat, you can imagine the drama of that.

MR: So understanding the influence of the media on a jury pool is important to trial lawyers.

WOOD: If you’re on the defense side, one of the questions you’re always asking yourself is can I possibly get a fair trial?

MR: In the Tsarnaev case, the trial court judge allowed written questions about the amount of time a prospective juror watched or read about the case. And whether he or she had posted online about the bombings. But it rejected a written question that the defense lawyers had wanted to ask: List the facts you’ve learned about the case … what was the content of the media he or she saw or read.

JR: The court said that that blanket question on the form was too unfocused. It would hold minimal value that would produce an amount of data that would be unmanageable.
So, it didn’t allow the blanket question in the questionnaire. However, the court did at times allow Tsarnaev’s lawyers to ask individual questions along those lines at voir dire. Allowed the lawyers to follow-up with some prospective jurors, depending on the answers they had previously given in the form.

MR: That voir dire process, the questioning, took three weeks. And then the case finally went to trial. And we’ve already pointed you to the outcome: Guilty on all 30 counts. Death penalty. Now the issue on appeal before the Supreme Court: Did the trial court make an error by excluding the question about media coverage from the questionnaire.

JR: At oral argument, government attorney Eric Feigin said the trial court judge made the right call by rejecting the question on the written form. And by allowing a careful process during the individual questioning.

FEIGIN: That process reasonably favored individualized voir dire over focusing every prospective juror on pretrial publicity through rote content questioning that would have been unhelpful.

MR: The justices didn’t spend much time on this matter at oral argument. Although Justice Sonia Sotomayor did bring it up early on. She wanted to know what was wrong with the jury question Tsarnaev requested.

JUSTICE SONIA SOTOMAYOR: What stands out in your mind about all that publicity? It seems to me that that's not asking for details of everything you've read but what has influenced you or affected you enough for you to remember it. That seems like a totally appropriate question to me.

FEIGIN: A question like that is unlikely to be particularly useful in a case like this because everyone saw the same coverage, so they were all going to say the same things: the carnage at the finish line, the chase in Watertown, the killing of Officer Collier, the boat manifesto.

SOTOMAYOR: If you ask a juror that and the juror says, I listened to Victim X and that has haunted me, that certainly would be information relevant to a defense attorney.

MR: Feigin said many jurors volunteered that information. Ginger Anders, who argued on behalf of Tsarnaev, had this to say.

ANDERS: First, the district court violated the First Circuit's longstanding voir dire supervisory rule by refusing to learn whether jurors had been exposed to inadmissible and inflammatory publicity that could prejudice their consideration of the death penalty.

JR: Her argument rested on a previous case the court had decided that did allow a similar question. She said that meant that the court must allow it here. That the prior case created a rule for all time. But at oral argument, she only got one line of questioning about the jury question issue. From Justice Clarence Thomas.

JUSTICE CLARENCE THOMAS: We've generally given the district judges, district courts, quite a bit of discretion at the jury selection stage. How do we know how far the court of appeals could go with displacing discretion?

Anders relied on what the Supreme Court has said in the past.

ANDERS: What the Court said is there's nothing inconsistent about that recognition and having, you know, some narrow rules where eliciting more information is both a good idea and also serves judicial integrity.

MR: After an hour and a half of oral arguments—

CHIEF JUSTICE JOHN ROBERTS: Thank you, counsel. The case is submitted.

MR: —the long wait. Wait for the Supreme Court to come down with its final decision.
That wait is hard on everyone. The parties on both sides, anxious to know the answer. The lawyers who invested so much time and thought in the case, genuinely trying to make sure the Constitution is properly guarded and correctly applied. And, of course, the victims, their families, and the countless others who were affected by the attacks. All who want resolution in this case.

JR: Former Boston Marathon race director Tim Kilduff was at the race in 2013 when the bombs went off. He had been on the men’s lead truck and gotten off near the finish line.

KILDUFF: I happened to be standing, looking across the road at the finish line when the bomb went off. We were up in the stands. I was standing with Dimitris Kyriakides, by the way, whose father won the 1946 Boston Marathon. And we heard a loud explosion, if you will. Dimitris said to me, “Well, you know, that sounds like some sort of electrical thing.” And we’d had some of those in Boston. Manholes popped open, that sort of thing. But 10 seconds later or so, that second bomb went off.

MR: That’s when Kilduff realized it was the real thing.

KILDUFF: People scattered. We were all pushed out very quickly. The police came in, moved people out. So explosion, panic, concern, not knowing what to do. Cell phones went down. We sat, it must have been I’ll bet 45 minutes to an hour, and we didn’t say a word to each other. Because we were worried about the people on the course. My daughter was on the course and you really couldn’t communicate.

JR: That’s part of what makes terrorism so effective. It’s a horrific disruption to what is such a powerful community tradition: Fathers cheering on daughters. Kids tracking Mom on the course with the marathon app. Spouses or friends holding custom-made big face posters. Spectators handing out licorice and bananas…and hoping for a high five from a runner. A marathon … isn’t just about the runners. It’s about the community.

KILDUFF: We have come to understand that there is more to a marathon…than running 26.2 miles. The involvement of a runner’s friends and families is one of them. On the Boston course, you have old timers who will tell you that every year, their parents would drag them out. People have cookouts along the course, that sort of thing. So, it becomes, you know, it's a corny term, but it becomes part of the fabric of those communities, and people keep coming back and they come back to the same location year after year. They may not know a hoot on who's leading the race, but they can appreciate the drama, and they appreciate the sense of history that Boston has to offer.

JR: The most famous part of the course: it’s known as Heartbreak Hill. Named by a former runner who was leading, but got passed on the hill, thus leading to the heartbreak of loss.
The heartbreak of Boston extends far beyond that now. And always will. The reach of the bombings was global.

MR: Well, five months after the case was submitted, the Supreme Court came out with its opinion. 6-3 in favor of the government. Justice Thomas wrote the opinion. He said the trial court did not abuse its discretion in excluding the mitigating evidence about the Waltham murders. Abuse of discretion is the legal standard here. The appeals court might have used its discretion differently, but that’s not enough to reverse the trial court. The court held that it was reasonable for the trial judge to discern it would be too confusing to include the mitigating evidence. To include it would risk producing a mini-trial about the prior murders within Dzhokhar’s big trial about the bombings.

JR: And when it came to the question about jury bias? The court also held that the trial court judge did not abuse his discretion by rejecting the question on the questionnaire. Again, the opinion spilled a lot of ink on the idea of a trial court judge’s exercise of discretion. Trial court lawyer Craig Wood was pleasantly surprised. and found that fascinating.

WOOD: It’s probably the thing I found most fascinating about the Supreme Court decision, because the Supreme Court justices for the most part, they’re not trial judges. Most of them are professors, right? They’re academics. They’re brilliant people, but they didn’t come up through the trial bench, and so when they protect trial judges based on the job that a trial judge has to do, I’m always surprised by that. Because it’s just not the world they live in.

MR: He’s right. Read a bunch of Supreme Court decisions and you’ll find very little discussion of what the trial judge actually does in any given case.

WOOD: They’re talking about the big global legal issues in the case. But in this case, they were specifically talking about the fact that the trial judge was exercising his discretion in this questioning issue about the media questioning. Do I have to do it on a written question or can we do it by verbal questioning?

MR: The defense was arguing that it was a legal requirement that there be the written question.

WOOD: And amazingly the appeal court agreed with that and reversed the trial court. And the Supreme Court was scolding the Appellate Court saying, you know, basically what you’re saying is in the exercise of your discretion, you think that the trial judge in the exercise of his discretion made the wrong decision. That’s not the standard. The exercise of discretion belongs entirely to the trial judge. What you have to say, appellate court, is that there is a precedent for, or a legal principle involved that makes it clear that the trial judge made an error. Not just in your opinion you would have done it differently…

MR: The rule is the Constitution. And the Constitution simply says you get an unbiased jury.

WOOD: And so the Supreme Court is really protecting trial judges in saying, don’t be reversing these people. They’re the ones that are sitting in the courtroom watching the jurors, listening to the jurors. They’re watching their body language. They’re watching their tone of voice. They’re watching the ways their eyes are moving. They’re watching whether they shuffle or sweat. And you can’t see any of that…so give them some space to do their job.

JR: That reminds me of something Mark Gerard said, the jury consultant you heard from earlier in this episode. He said the American legal system is one of the marvels of the world.

GERARD: I think the jury system is incredible, to be honest. Jurors, most of the time, get it right. And they try really hard. I mean one thing is absolutely for sure. Jurors are trying to make the right decision.

MR: The judge is the judge of the law. But the jury is the judge of the facts. And in this case, the jury’s verdict stands. The court of appeals is overruled. Tsarnarev’s death sentence is reinstated. That’s the final decision. Case over.

JR: And race over! Four hours and eight minutes after I started the Boston Marathon, I crossed the finish line!

MR: We were all pulling for you. How did you feel?

JR: Tired! But hands down, one of the best experiences of my life! And one of the things I loved most? The signs that the spectators held up. Most had encouraging words. Although just a few miles in, a woman had a sign that said: “You’re NOT almost there.” That made me laugh. But another sign brought tears to my eyes. It touched me deeply.

JENNY SOT: There will come a day when I can no longer run. Today is not that day. Psalm 56, 57.

MR: Whether you’re a runner or not, we all have a race to run: The great human race: the marathon of life.  It makes me think that our time on this planet seems so short.

JR: Exactly. After I saw that sign, I thought: To run a marathon a person has to make a series of personal choices. Eat well. Hydrate. Spend weekends putting in long runs instead of doing other things. The same is true of the great human race, the marathon of life. We can maim, kill, and destroy. Or…we can be a blessing to others. That choice is up to us.
Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.

MR: And I’m Mary Reichard.

JR: We’re the hosts each week, and we write the scripts. Our script editors are Nick Eicher and Paul Butler, who’s also our producer. Lillian Hamman gave audio support. Special thanks to Matthew Levitt, Tim Kilduff, Jim Belanger, Craig Wood and Mark Gerard.

MR: Audio sources for this episode include news coverage from ABC Television. Broadcast footage of the 2013 marathon from the Universal Sports Network. Also, music in the episode from Universal Production Music library as well as Matthew Wilder’s “Break My Stride.” Sermon audio used with permission from Park Street Church. And of course oral arguments courtesy of SupremeCourt.gov …

That’s it for Season 3 of Legal Docket. What a term! It was like…well…a marathon! We covered death row, guns, abortion.

JR: And arbitration, prayer at school, the opioid crisis. Plus, a few special episodes.

MR: If you missed any of those episodes, you can go back and listen wherever you get your podcasts. And if you enjoy this podcast and want to hear more, please review us, rate us! The more support, the better we’re able to serve you. God willing, we’ll be back next summer.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.