By Nancy Gertner

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In 1924, Clarence Darrow represented Nathan Leopold and Richard Loeb, men accused of a senseless, thrill killing of a young man. The defendants were well off, raised in comfort; Leopold was about to enter Harvard Law School. They were 19 and 18, respectively, at the time of the homicide. The victim was Robert “Bobby” Franks, just 14 years old. Given the publicity, which was unheard of for the time, Darrow counselled his clients to plead guilty and throw themselves on the mercy of the judge, rather than have a jury decide their fate. He conceded that he did this because he was afraid to submit the case to a jury. (Each received a sentence of life imprisonment plus 99 years.)

Dzhokhar Tsarnaev did not have that option. The federal death penalty statute that was reinstated in 1988 (and expanded in 1994) required a jury to decide the aggravating and mitigating factors that determine the death penalty. A defendant can waive the death penalty jury and go before a judge, as Darrow’s clients did, but only with the prosecutor’s agreement. The prosecutors in Tsarnaev’s case would not agree.

death qualified jurors are more likely to have other attitudes related to their death penalty beliefs that make death — not life imprisonment — much more likely.

The decision maker — judge or jury — is critical: In 2002, when the Supreme Court ruled that the Constitution required a jury to find the aggravating factors that determine death, some states, like Arizona, saw a dramatic increase in death verdicts. The reason? Jurors make lateral decisions; they drill down into the facts of the case before them and none other. To them, all cases are unique; all murders are horrible. Judges, however, make horizontal decisions. They consider both the facts of the case before them and also how this case compares to all others they have seen. It is for this reason that judges are tasked with making sentencing decisions; death penalty cases are the exception.

But whatever the general trend, surely Massachusetts would be different, some predicted. This is, after all, a state without a death penalty. Multiple polls found that a majority in Boston opposed death for Tsarnaev, even as the trial, with its attendant flood of horrific images and heartrending victim testimony, continued.

It all comes down to the jury — its composition, its selection. To qualify to be a juror on a death penalty case, the Supreme Court held that a juror must not feel so strongly against the death penalty that his or her belief “would prevent or substantially impair the performance of [his or her] duties as a juror,” what we call “death-qualification.” Thus, a juror who would always vote for life, no matter what the evidence, cannot sit. Equally excludable are jurors whose pro-death views mean that they would always vote for death, who believe in an eye-for-an-eye in all circumstances involving murder. Who are the people in between these two poles? Who qualifies to sit on a death penalty jury?

Multiple studies from other states suggest that it is not just that death-qualified juries are conviction prone. (That tendency would hardly have made a difference in this case, since Tsarnaev’s lawyer, Judy Clarke, admitted, “He did it.”) More significant is the fact that death qualified jurors are more likely to have other attitudes related to their death penalty beliefs that make death — not life imprisonment — much more likely.

For example, those who pass death qualification questioning tend to favor the prosecution; they will be more likely to listen to the government lawyers, to credit their positions, and to discount the defense arguments. Their pro death penalty views correlate with other attitudes; they believe in a “just world,” namely one in which people — like defendants — get what they deserve. They believe in human agency, meaning that everyone is in complete control of his own destiny. (One Tsarnaev juror said, to the question how would she feel about giving the death penalty, “I wouldn’t be giving it; he would.”) As such, they are skeptical of and likely to discount the mitigating factors that show other influences at play on the defendant, internal or external. They are particularly susceptible to pre-trial publicity, the studies suggest. They will have closely followed the case in the media, more so than their counterparts who are not in favor of the death penalty. In general, there is less diversity of opinion in death qualified juries, a characteristic linked to shorter deliberation time. Perhaps that is one of the reasons why this jury sentenced Tsarnaev to death — and in just under 15 hours.

It may well be that this jury was the fairest that could be selected, given the requirement of death qualification. Or not.

Still, there are gradations of views even within the group of citizens who are death qualified, gradations that a probing voir dire, or preliminary examination of a potential juror, is designed to uncover. In New York, for example, potential jurors are questioned extensively to flesh out the anti-defendant attitudes associated with death qualification — about their attitudes to crime, whether they would consider mitigating factors, their feelings to the government, towards psychological defenses, how much they have read of the press, what they remember of it, etc. The goal is to find the “fairest” jurors within the universe of those who are death qualified. Someone might say, “I am against the death penalty, but I would consider it under certain circumstances.” Or, “I favor the death penalty in general, but I understand there are exceptions.” Both answers would enable that juror to be considered, but further questioning is essential to select a subset of jurors free of the additional, pro death biases studies have uncovered.

It may well be that whatever the selection process, this jury was that fair subset — those without the pro death biases reflected in the social science. While we have some idea of the Tsarnaev trial voir dire from the media coverage, there is much we do not know. The transcripts — like most of the critical pleadings in the case — were sealed. So we are left to wonder and to speculate: How probing was the voir dire? To what degree were careful distinctions made even among those who could be death qualified, to select out those who could be fair about death? Which jurors were accepted? Which were rejected? What was the impact of trying the penalty phase the day after the second anniversary of the bombing? Will these issues figure in an appeal? It may well be that this jury was the fairest that could be selected, given the requirement of death qualification.

Or not.