Last week, defense attorney Judy Clarke stood before the jury in the case of Boston Marathon bomber Dzhokhar Tsarnaev and urged that mercy be bestowed.
The question of Tsarnaev’s guilt had already been settled: The 21-year-old was convicted on April 8 in federal court for his part in the deadly 2013 attack. But now the jury would decide whether he would live out his days in the Colorado supermax prison, often called the Alcatraz of the Rockies, or whether he would be executed instead.
Citing mitigating factors – his youth, the overwhelming influence of his controlling radicalized brother, and his disturbing family life – attorney Clarke reminded the jurors that they had the alternative to spare Tsarnaev’s life.
But did they really? Looking on as a Bostonian, I am left wondering whether the outcome was predetermined even before this trial began.
Even before any jury was impaneled, the defense may have fought and lost a definitive battle when the judge refused motions to move the case outside the jurisdiction. This issue will be at the center of Tsarneav’s appellate battle which will begin at the First Circuit and may continue to the US Supreme Court, while a separate habeas corpus process will commence and likewise travel up the hierarchy of federal courts after all direct appeals are exhausted.
The push to move the trial out of Boston
Early in the proceedings, Tsarnaev’s lawyers urged that justice demanded this trial proceed outside Boston to ensure an impartial jury be selected. Many have drawn comparisons between this case and the Oklahoma City bombing, but in the latter case the trials for the accused were conducted in Colorado. On Tsarnaev’s behalf, the defense team filed four different motions for change of venue and appealed twice for mandamus relief to the First Circuit, arguing that it was impossible for Dzhokar Tsarnaev to receive a fair trial in this jurisdiction.
The trial judge denied each motion, as did the First Circuit. The lone dissenter was First Circuit Judge Juan Torruella whose single vote was insufficient to turn the tide. Torruella warned that the refusal of the First Circuit to grant relief in the form of a change of venue would “pave the way for a trial that is fair neither in fact nor in appearance.”
And so, the trial proceeded in the Boston Federal Courthouse.
All Bostonians were affected by the attack
The Courthouse stands about five miles from the Boston Marathon finish line where the bombings occurred and three people were heinously killed and several maimed that Patriot’s Day of 2013.
But the events of two years ago extended beyond the horror at the finish line and swept over the city and surrounding areas as the search for the bombing suspects extended for several days.
In the four days after the April 15 attack, for us Bostonians, the marathon bombings crawled out of the safe distance created by our televisions or computer screens into our homes as an unprecedented manhunt for the bombers began.
The public transit system was shut down to prevent an escape. The tragedy traveled across towns from Boston to Cambridge as an MIT police office was fatally shot on the third night. While one suspect was killed on April 19, a second one remained at at large.
On the fourth day of the manhunt, Friday morning, the governor commanded residents of Boston and its suburbs – Watertown, Cambridge, Newton, Belmont, Waltham – to stay inside and lock their doors, pull their shades. It was not safe to go outside. In Watertown, families were awakened that same morning as SWAT teams banged at their doors, urgently told them to exit, and entered to search for the second suspect.
Police officers lined the Watertown streets, with their assault rifles exposed. Emergency vehicles and armored trucks traveled the thoroughfare. Helicopters hung in the sky. All of Boston watched -– we were glued to our televisions because we were afraid for ourselves and for our loved ones. This tragedy happened to all of Boston.
What happened to Bostonians also happened to the jurors
And so this tragedy happened to each of those Boston jurors. They were likely angry and afraid on the days of the manhunt, locked in their homes just like the rest of us.
In its final plea for a change of venue while in the midst of jury selection, the defense recounted that 76% of the seventy-five individuals who had been qualified by the trial court to serve as Tsarnaev’s jurors “had connections or allegiances to events, people and/or places” in the case. The twelve jurors who eventually decided for the death penalty were chosen from these entangled seventy-five.
Nonetheless, the trial began in early April 2015 at Courthouse Way in Boston. Jurors were instructed to avert their eyes and cover their ears to any trial coverage in the media. But still they walked in and out of that courthouse every day – five miles from the finish line. They walked past the media frenzy, past banners reminding them to be “Boston Strong” and that “This is Our ****ing City.”
And between the guilt phase and the penalty phase of the case, another finish line was painted on Boylston Street, another Boston marathon passed, another anniversary of the tragedy was memorialized.
And at the end if it all, when attorney Judy Clarke asked the Boston jury to be merciful and spare Dzhokhar Tsarnaev’s life, the jury responded, echoing Bostonian’s resounding “No.”