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August 26, 2015

How did Boston bombing jurors not get informed some victims did not favor death sentence for Dzhokhar Tsarnaev?

As regular readers may recall from this post back in April, Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the Boston marathon's finish line, wrote this stirring Boston Globe commentary about their hopes for the outcome in the federal criminal case against Dzhokhar Tsarnaev.  The Richards there expressed disinterest in a death sentence for Tsarnaev because of all the attention and appeals that such a sentence would necessarily bring for the duration of Tsarnaev's life behind bars.  As they explained, in order to be able to "turn the page, end the anguish, and look toward a better future," they were calling upon "the Department of Justice [to take] the death penalty off the table in an exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal."

As regular readers know, federal statutory law gives crime victims an inpedendent right to express their views in federal sentencing proceedings.  For that reason, and especially because the feelings and desires of all victims seems important, relevant and proper evidence for jurors trying to decide on a life/death capital verdict, I took for granted that anti-death-sentence victim views would get relayed in some way to the jurors deciding on the sentence for Tsarnaev.  (Indeed, I had long thought that one of many benefits of the federal Crime Victim Rights Act was to ensure federal court proceedings would regularly incorportate the views and voices of all victims, not just those prosecutors and/or defense attorneys brought forward.)

But this local interview with the first Boston bombing juror to speak publicly suggests that (1) the jurors were unaware of the Richards' perspective on how best to sentence Tsarnaev, and (2) at least one juror might have reached a different verdict if he knew of what the Richards had said.  Here is part of the introduction and transcript of the interview with Kevan Fagan, Juror 83, covering this ground: 

Kevan Fagan, “Juror 83″ in the trial of Dzhokhar Tsarnaev, sat down for an interview in our studio with WBUR’s Jack Lepiarz and David Boeri, who both covered the trial. The 23-year-old became the first juror to agree to be named, to have his picture taken and to talk about the trial, though he would not discuss the jury’s deliberations.

Fagan told WBUR that he may not have voted for the death penalty had he known that some bombing victims wanted Tsarnaev to get life in prison. He said he likely would have changed his vote had he been aware of opposition to the death penalty by the parents of 8-year-old Martin Richard, the youngest victim killed in the bombing.

“If I had known that, I probably — I probably would change my vote. But then again, if I knew that I wouldn’t be on the jury either,” he said in the interview. The jurors were ordered to avoid media coverage of the trial.

He is co-authoring a book about his experience titled “Juror 83 — The Tsarnaev Trial: 34 Days That Changed Me” that is expected to be released at the end of September....

DB: What impressed you? Did you find anything persuasive in the defense case?

KF: I think it was a very hard case, and I’m not a lawyer, so I don’t know if there have been harder cases to defend. I think they did the best that they could for their client.

DB: You didn’t know at the time that the Richard family and other families had written to the U.S. Attorney and to the Justice Department saying they were opposed to the death penalty?

KF: Oh sure. No, I had no clue about that.

JL: If you had known that, would you have changed your vote?

KF: If I had known that, I probably — I probably would change my vote. But then again, if I knew that I wouldn’t be on the jury either.

DB: What do you mean?

KF: If I went out of my way and disrespected the judge and went against his orders about researching things. That wouldn’t have been very fair or judicious of me.

Because this juror is writing a book about his experience as a juror — and especially because this juror will likely benefit personally from the publicity that provocative interviews will generate — I am a bit suspicious of his suggestion that his sentencing vote would have been different if he had full information about all victim perspectives.  Nevertheless, I now am wondering a lot about (a) whatever legal or strategic or practical issues surrounded decisions to keep jurors unaware of the Richards' (and other victims'?) perspectives on how best to sentence Tsarnaev, and (b) whether this jury unawareness, coupled with this juror's comments about the impact such information could have had, will become a key part of direct and collateral appeals of the Tsarnaev death sentence.

I cannot help but note a particular and particularly sad irony here: the commentary authored by the Richards movingly "urge[d] the Department of Justice to bring the case to a close"; but now this commentary, now combined with its failure to get known to the jury during the sentencing proceedings, seems itself likely to continue to generate legal issues and media attention.  The commentary not only noted, but now adds the reality that, a death sentence for Tsarnaev is all but certain to ensure this case will not be coming to a close for decades. So sad.

A few prior related posts:

August 26, 2015 at 11:41 AM | Permalink


Was the defense allowed to put the opposition of the girl's parents in the record?

Seems like something they would -- but then they are the experts -- if they were allowed.

Posted by: Joe | Aug 26, 2015 12:16:43 PM

Who were the "victims" of the event? Those bombed and injured at the scene? Those who were relatives of victims at the scene? Those who watched the video and are hurt by watching?

Posted by: Liberty1st | Aug 26, 2015 12:49:18 PM


Well, if you believe the state of Texas all the little puppy dogs and unicorns riding rainbows are "crime victims".

Posted by: Daniel | Aug 26, 2015 6:01:58 PM

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