Due Process For The Devil

Jury selection began yesterday in the trial of the accused Boston Marathon bomber Dzhokhar Tsarnaev. Reporting from the courtroom, Seth Stevenson touches on why it is significant that he is being tried in the same city where the bombings took place:

Judge [George A.] O’Toole has refused to move the trial to another location. It’s worth remembering that the most comparable act of domestic terrorism, Timothy McVeigh’s bombing of a federal building in Oklahoma City, was not tried within walking distance of the site of the crime. It was shifted to Colorado in search of a less biased jury pool. Some of the circumstances in that case were different, but there’s no doubt there are parallels in how these two attacks cut at the heart of the regions they damaged.

Whatever the final makeup of this jury, the hardest question they face will have little to do with simple guilt or innocence. It’s safe to assume Tsarnaev will have no hope of disproving his involvement in the bombing. There are videotapes. A rumored confession. A revealing, anti-American screed written in the boat cockpit where he lay bleeding.

The gut-wrenching decision for this jury will come later, during the penalty phase, when Tsarnaev faces execution. This is a state where a firm majority opposes the death penalty on principle. But Tsarnaev’s jurors, to be chosen, will need to state that they are willing to impose a death sentence if they determine one is justified.

Noah Feldman can’t see him getting a fair trial in Beantown:

The Boston Marathon bombing poses a new challenge. It’s not just that many and maybe most Bostonians know one or more of the thousands of people who ran in the marathon and were targets of the attack. (I certainly do.) The search for the bombers actually shut down the city and several suburbs after they killed a police officer for the Massachusetts Institute of Technology and exchanged fire with Watertown police. Having been in lockdown, with the sound of Black Hawk helicopters overhead and the children barred even from the backyard, was an experience not easily forgotten. And it affected hundreds of thousands of people who might be in the jury pool.

Deepening the problem of a fair trial is the collective response to the bombings. The “Boston Strong” campaign, which featured everyone from then-Mayor Thomas Menino to the redoubtable Red Sox slugger David Ortiz (the latter mere popular even than the former) united greater Boston like no other public outpouring in my lifetime.

Masha Gessen agrees:

[T]he eighteen jurors who are eventually seated will face the difficult, if not impossible, task of separating their duty of representing the community as jurors from the outrage they may feel as members of a community that was attacked, by proxy, when the bombs went off at the Boston Marathon. The prosecution and, likely, its witnesses will repeatedly stress this sense of collective injury. Tsarnaev is accused of attacking America, and he may believe he did. The government will, in effect, ask the jury over and over again, “Are you with us or against us?”