First Tsarnaev Trial Juror Speaks, Illustrates Complexity of Death Penalty

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August 26, 2015; Boston Globe

NPQ has been following the changing public opinion of the death penalty amid criminal reform efforts, particularly how those dynamics interacted in the trial of Boston Marathon bombing perpetrator Dzhokhar Tsarnaev. While the trial took place in downtown Boston, where the overwhelming majority of residents—including some of Tsarnev’s victims— oppose the death penalty, the twelve jurors sentenced the defendant to death in May. Now, a juror from the case is coming forward to say he “probably” would have voted against the death penalty had he known the some of the victims did not support the sentence.

Kevan Fagan, 23, spoke to WBUR about the experience of being a juror in the trial, of which he is writing a book, though he refused to comment on the deliberations. Fagan is the first and so far the only juror to speak publically and identify himself as being of the twelve jurors that served on the case. (A judge recently rejected a motion by the Boston Globe and WBUR to release the names of the jurors for now while the defense was still making motions.)

“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,” said Fagan, referring to the orders given by the judge to refrain from reading or watching anything about the case in the media. Particularly, Fagan remarked he didn’t know that the family of Martin Richard, 8, the youngest victim, had written to the U.S. Attorney General opposing the death penalty.

“We are in favor of and would support the Department of Justice in taking the death penalty off the table in 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,” wrote the Richards family in a letter published by the Boston Globe:

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government ha 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.

Similar pleas were made by other survivors, such as Jessica Kensky and Patrick Downes, who both lost their legs in the bombings. Indeed, this information never made it to jurors’ ears or eyes during the trial. The judge had prohibited victims and family members from giving their own perspectives of the death penalty during the sentencing phase of the trial. Daniel Medwed, a Northeastern University law professor, indicates that there is legal precedent in preventing victims from giving their personal opinions on the legality of the death penalty, and that those opinions are not relevant to jury deliberations. Moreover, as Fagan is writing a book, Medwed worries about his ulterior motives for coming forward.

Regardless of Fagan’s motives, what these personal opinions do show is the complicated attitude regarding the death penalty and an approach to the criminal justice system that’s growing more humane. The death penalty has been losing support steadily over the past two decades from its peak in the mid-’90s. And while the nonprofit world, the courts, and the legislature are furthering the cause to question the constitutionality of the death sentence, significant work remains to be done.—Shafaq Hasan