Boston bombing trial: Should juror have known about victim's family's wishes?

A juror in the trial of the Boston Marathon bomber has said in a new interview that he may not have supported the death penalty against Dzhokhar Tsarnaev if he had known that some victims’ families supported a life sentence instead.

The statement raises the question of how much victims’ views on the death penalty should be taken into account in the sentencing phase of capital criminal cases.

The jury needed unanimous consent to pursue the death penalty against Mr. Tsarnaev.

Kevin Fagan – the first juror to go public with his identity – told WBUR that he might have reconsidered voting for capital punishment if he had known about the protests of the family of 8-year-old victim Martin Richard, who was killed by one of two bombs detonated by Tsarnaev and his brother. The bombs killed three people and injured more than 260.

"If I had known that, I probably – I probably would change my vote," Mr. Fagan said. 

"But then again, if I knew that I wouldn’t be on the jury either," he added, referring to the order by the judge to avoid news coverage and media reaction surrounding the case.

Martin's parents published a letter in The Boston Globe on April 17 titled, “To end the anguish, drop the death penalty,” which called for the prosecution to take the death penalty off the table and instead focus on life in prison without the possibility of parole.

The statement centered on the fact that the death penalty would lead to a drawn out appeals process that would delay the ability of the family to gain closure.

"We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives," it read.

The defense attempted to submit the Richard family's view as part of the case, but the evidence was excluded by the judge because of “endless loop” that may have resulted, says Daniel Medwed, a professor at the Northeastern University School of Law in Boston.   

“Especially in death penalty cases with a lot of victims, you might have the defense and prosecution calling up people in a tit-for-tat scenario,” Professor Medwed says.

The Richard family was allowed to address the court as part of their victim impact statement, which allows victims to explain to the jury how the crimes of the accused affected them. What is not admissible are victim’s views on the appropriateness of the death penalty, because it delves too far into the realm of opinion, instead of fact. 

“The reason the law does not allow it is that it distracts the jury from their quest. They’re the ones who have heard all the evidence and are entrusted with the heavy responsibility in a death penalty case,” Medwed says. “The idea is that either way you slice it you don’t want jurors voting for or against death out of sympathy of victim’s views and feel like they are rejecting victims if they choose the alternative, the other path.”

Allowing victim's opinions on sentencing would lead to additional procedural issues like which side would call them up to testify, Medwed adds.

One possible way to get a victim's calls for clemency in front of a jury would be use it as evidence of the waning impact of the crime on the victims, says David Rossman, a professor at Boston University School of Law.

While Fagan refused to go into detail about the jury deliberations, he did say he was partially convinced by the defense that Tsarnaev’s older brother had a malevolent influence over him. Ultimately, though, Fagen felt that Tsarnaev deserved the death penalty because of personal responsibility.

“He still chose to leave that bomb there for about 4-1/2 minutes. So it’s hard to get away from that and the damage and strife that it caused,” he said.

The juror is writing a book about his experience called "Juror 83 – The Tsarnaev Trial: 34 Days That Changed Me," which is expected to be released next month.

Lawyers for Tsarnaev filed a motion last week seeking a new trial in a new location, because they say the jury in the case was unduly influenced by media attention surrounding the trial.