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Justice or Vengeance?: ACLU Raises Concerns as Boston Marathon Bombing Trial Begins

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Jury selection began Monday in the case of “The United States v. Dzhokhar Tsarnaev,” one of the most high-profile federal trials in decades. The 21-year-old Tsarnaev is accused of planting bombs near the finish line at the Boston Marathon that killed three people and wounded more than 260. It was the nation’s worst bombing since the Oklahoma City attack of 1995. Tsarnaev faces 30 counts, more than half carrying the death penalty. Jury selection will take several weeks followed by a trial of up to five months. But as bombing victims and the wider Boston community search for closure, concerns around due process could prolong the case for years. Ahead of the trial, defense attorneys unsuccessfully tried to move the proceedings out of state, saying their client can’t receive a fair trial in the city where the bombing occurred. Federal prosecutors are also seeking the death penalty in a state where executions are barred. That will mean harsh constraints on the jury pool, ruling out anyone who opposes capital punishment. In a dissent to the First Circuit Appeals Court’s rejection of a trial delay, Judge Juan R. Torruella criticized the decision to proceed with the case, writing: “Such a rushed and frenetic process is the antithesis of due process.” We discuss the Boston Marathon bombing trial and its due process concerns with Carol Rose, executive director of the American Civil Liberties Union of Massachusetts.

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This is a rush transcript. Copy may not be in its final form.

AARON MATÉ: One of the most high-profile federal trials in decades is underway. On Monday, jury selection began in the case of The U.S. v. Dzhokhar Tsarnaev, the alleged Boston Marathon bomber. Tsarnaev, who is 21 years old, is accused of planting bombs that killed three people and wounded more than 260. It was the nation’s worst bombing since the Oklahoma City attack of 1995. Tsarnaev is also charged for the ensuing events, when he and his brother, Tamerlan, allegedly shot dead a police officer and sparked a citywide manhunt. Tamerlan died after a firefight with police. Dzhokhar Tsarnaev faces 30 counts, more than half carrying the death penalty. Jury selection will take several weeks, followed by a trial of up to five months. Survivors and victims’ families are expected to attend. Heather Abbott, who lost her left leg below the knee, said the trial will be difficult, but also a healing process for the victims.

HEATHER ABBOTT: I expect it to be emotional. You know, I’m sure that it’s not going to be an easy time. But for me, it’s something that I want to at least experience attending for—I think just for some sort of peace of mind to see, you know, the person who changed my life forever. And I’ve become close with many of the other bombing victims, particularly the amputees. So, I think, you know, to be able to support each other through this time will be important.

AARON MATÉ: Boston Marathon bombing survivor Heather Abbott. But as victims like her and the wider Boston community search for closure, concerns around due process could prolong the case for years.

AMY GOODMAN: Ahead of the trial, Dzhokhar Tsarnaev’s attorneys unsuccessfully tried to move the proceedings out of state, saying their client can’t receive a fair trial in the city where the bombing occurred. The defense cited the case of Oklahoma City bomber Timothy McVeigh, whose trial was moved out of state. But over the weekend a divided federal appeals court rejected the defense’s motion.

Federal prosecutors are also seeking the death penalty in a state where executions are barred—that’s Massachusetts. That will mean harsh constraints on the jury pool, ruling out anyone who opposes capital punishment.

Defense lawyers have also unsuccessfully argued they haven’t had enough time to pour over thousands of newly released government documents. There’s also the matter of Dzhokhar Tsarnaev’s arrest. At the time, authorities used a public safety exception to delay reading him his Miranda rights to remain silent and to have an attorney present, a move that sparked controversy. It was before he was read his rights that he reportedly admitted to a role in the bombings. All of these issues could come up on appeal, a possibility that may keep this case in the courts for a long time to come.

For more on the Boston Marathon bombing trial and its due process concerns, we’re joined by Carol Rose, executive director of the American Civil Liberties Union of Massachusetts. Her article is headlined “Tsarnaev Trial Will Test What It Means To Be 'Boston Strong.'” It was published on Monday.

Carol Rose, welcome to Democracy Now! Can you talk about the climate right now in Boston and your major concerns about this trial?

CAROL ROSE: Right, well, I mean, I think the key here is whether this is going to be a trial that’s about vengeance or that it’s going to be a trial about justice. Are we going to be ruled by our values, or are we going to be ruled by our fears? The climate here in Boston is a media circus, as you can imagine. It’s sort of 24/7 around this trial. It’s where everybody’s focus is, just as it was where everyone’s focus was during the lockdown, the shelter-in-place order that came out in the days immediately following the bombing. And that’s one of the reasons that the ACLU and others have a lot of concerns about the due process, whether there can in fact be a fundamentally fair trial for Dzhokhar Tsarnaev, because it—a test here. This isn’t just a test or a trial of his guilt or innocence; it’s really a test of whether we as Americans are going to let people who use violence shake us from our values, shake us from our commitment to due process, to fundamental fairness and to the American system of justice. And I think that’s what’s at stake right now.

AARON MATÉ: Well, Carol, let’s go through your concerns. Talk about the death penalty in a state that bars capital punishment.

CAROL ROSE: Right. Well, so, Massachusetts has—is a non-death penalty state. So, this is a federal trial, so the federal government, Eric Holder’s decision, is to come in here and pursue a death penalty trial nonetheless. What that means is that when you’re trying to qualify a jury, it has to be death-qualified, is what it’s called, or death-certified. That means they’ll be asking every juror whether or not they’re opposed to the death penalty. And if they are fundamentally opposed to the death penalty, they’ll be kicked off the case. They can’t serve on the jury. So, what does that mean when you want to have a jury of your peers, when you’re in a state where, in general, the peers are opposed to the death penalty, but we’re going to have a jury that’s death-qualified? So, that’s just one of the many due process concerns that have been raised.

AMY GOODMAN: Well, Carol Rose—

CAROL ROSE: And unfortunately—yes?

AMY GOODMAN: Tell us what that means. I mean, who ends up being on a death penalty jury? Who gets excluded? Who gets included?

CAROL ROSE: Right, well, there’s going to be a series of questions that will be asked of every juror. And if a juror has said, do you—could you possibly—are you opposed to the death penalty on religious grounds in all instances, you will not be on the jury. But it will be the judge that makes that decision. So it won’t be the prosecutors having to use one of their peremptory challenges to get that person off the jury.

AMY GOODMAN: And so, in terms of populations—for example, African Americans overwhelmingly against the death penalty, Jews overwhelmingly—


AMY GOODMAN: —against the death penalty, women—so, who ends up on pro-death penalty juries?

CAROL ROSE: Well, studies have shown that you have a far more—not only—so, the trial is bifurcated: There’s the guilt phase, and then there’s the sentencing phase. But studies have shown that when you have a death-qualified jury, then you end up having a lot more people who are likely to find them guilty in the guilt-finding phase, in addition to imposing the death penalty down the road. So you are—you know, in this case, you’re more likely to have a jury not only to finding—have a finding of guilty, but also to be willing to impose the death penalty, than would a general representative jury that represents the people of Massachusetts.

AARON MATÉ: Well, Carol, the Justice Department announced that it would pursue the death penalty in the Tsarnaev case last January. Now, as we say, executions at the federal level are rare. But Attorney General Eric Holder explained his decision in a statement. He said, quote, “After consideration of the relevant facts, the applicable regulations and the submissions made by the defendant’s counsel, I have determined that the United States will seek the death penalty in this matter. The nature of the conduct at issue and the resultant harm compel this decision.” What were the government’s options? And do you see a political decision here in this decision to seek capital punishment?

CAROL ROSE: Well, Eric Holder and U.S. Attorney for Massachusetts Carmen Ortiz definitely had an alternative. They could have gone forward and proffered a plea deal to Dzhokhar Tsarnaev. For example, it could have been life without possibility of parole, life without appeal; you agree to be locked away forever and to do your time for your crime, in exchange, no death penalty. The government never did that. The government never offered that.

And I think that there are number of reasons. I mean, we can only speculate, but what people in the legal community here in Boston are speculating is in fact that this might be a chance for Eric Holder to show that Article III federal courts are capable of doing these big terrorism trials, and therefore we don’t need the military commissions in Guantánamo. It could be that the prosecutors want to be part of a high-profile case and tap into the sense of tremendous anger and a feeling of a desire for vengeance that’s very widespread in Boston right now. People are really traumatized by what happened, which is one of the reasons it’s a problem about getting a fair jury trial in Boston, because people are traumatized by it. So, there’s a number of reasons, sort of political reasons, that they would have decided to go forward.

But the problem with that is that if you have—if there had been a plea trial, then the first part of the trial, the guilt or innocence part, wouldn’t happen. You would only have the sentencing phase. And during a sentencing phase, when there’s been a plea like that, in general, the defendant doesn’t really talk. It’s really about the survivors. It’s about the people who have come forward, like the person we just heard from, to be able to tell their stories and to be able to talk about the healing process and to move forward. When instead the prosecution chooses to pursue a death penalty trial, first we have to relive every last detail of what happened and go through all of that, which can be retraumatizing for people who are survivors and for all of us.

But beyond that, during the sentencing phase, it’s really going to be about Dzhokhar Tsarnaev. It’s going to be about his youth, who he was influenced by, whether or not he did too many drugs, whether or not his big brother influenced him, what a good guy he was at the high school. It’s going to be about him, as it should be in those cases, because it’s his life on the line. But it won’t be about the survivors, and therefore there’s a real chance that if you pursue this, you’re going to create a martyr of Dzhokhar Tsarnaev among people who somehow decide that he is the person they want to back. He could be an inspiration to people around the world who would also use violence as a way to achieve their means or to make their statements in America. And it really is a setback for what we, as Americans, want, which is to move forward, to have healing and to have justice rather than vengeance.

AMY GOODMAN: And, Carol Rose, the issue of moving the venue? Timothy McVeigh was tried in Colorado, is that right, not in Oklahoma?

CAROL ROSE: That’s right, in a case that was very similar. It was an indiscriminate bombing. There were children killed and hurt in both instances. The whole city and surrounding area was really traumatized emotionally by it. And the judge in that case, I think, correctly said, “You know, it’s important that, especially in these cases that are so political and high visibility, that we as Americans set the highest standards of due process, that we prove to people who would use violence that we won’t be deterred from our values, from our system of justice. We will go over and above to make sure there’s a fair trial.” And that’s why, in the Timothy McVeigh case, they moved the trial out of state. He was still convicted. But there was no doubt that he had a fair trial.

The concern here is, if you don’t do that, there’s going to be multiple issues for appeal. There’s going to be a perception, either in the country and certainly internationally, that somehow Dzhokhar Tsarnaev didn’t get a fair trial, and therefore there’s going to be delays in any execution. And beyond that, we’re going to be living with it for years to come and have the real sad danger of the possibility of turning this guy, who used violence against so many people, into a martyr. And that’s a shame.

AARON MATÉ: And, Carol, to a skeptic who might say, “Why is this important? Why is the ACLU raising all these concerns around the rights of someone who is most likely guilty, who has admitted to a role in the bombing?” what’s your response?

CAROL ROSE: You know, this isn’t a trial about Dzhokhar Tsarnaev’s guilt or innocence. I think the evidence, most people would agree, is rather overwhelming. This is a trial about who we are. This is a trial about whether we, as Americans, are going to let people who use violence against us somehow shake us from our fundamental values, a commitment to due process and fundamental fairness, a commitment to constitutional values. The ACLU represents the Constitution and the Bill of Rights as it applies to everyone. But this trial isn’t about the bad guys. This is a trial about Americans, about who we are. And that’s why the ACLU cares.

AMY GOODMAN: And the issue of Miranda rights, how important is this, when Tsarnaev made his confession, when he was read his Miranda rights, what the public security exception is?

CAROL ROSE: Well, I think this is, again, yet another issue that’s going to be on appeal and is going to keep this case with us for many years, because there wasn’t—hasn’t been a plea bargain. I think the question of your rights in the immediate aftermath of getting arrested are hugely important to all of us. And again, the law as it’s set in one case can’t be different than in other cases. And I think all Americans really care about having their rights, knowing what their rights are, so you can’t be taken away by law enforcement and somehow coerced into saying something that you wouldn’t otherwise say because you don’t have a lawyer present. So, whether or not—you know, nobody, very few of us, certainly not me, like this particular guy, but what we’re talking about are the principles and the law and the precedent that’s behind it. And we do care about those rights when they apply to us, so it’s important to remember that the rights at issue are not just Dzhokhar Tsarnaev’s, they’re the rights of every American.

AARON MATÉ: And, Carol, can you talk about the death of Ibragim Todashev? He is the Chechen man who was shot dead by FBI agents in Florida while being questioned about his ties to the Boston Marathon bombers? Are there still unanswered questions about his death?

CAROL ROSE: Yeah, a tremendous number of unanswered questions about the shooting death by FBI in Boston—or, excuse me, Massachusetts State Police troopers down in Florida. Immediately in the aftermath of the bombing, the police announced that suddenly they had decided to pin a longtime murder, a triple homicide—three guys were killed a couple years before the Boston Marathon bombing. Suddenly they said, “Oh, we found the guy who did it.” They had not solved the case. And they just said it was Tamerlan Tsarnaev, the older brother of Dzhokhar Tsarnaev. Initially, they said that Dzhokhar was involved, and then they changed it and said, no, it was actually Tamerlan Tsarnaev and a man named Ibragim Todashev.

The Boston FBI and the Massachusetts State Police went down to Florida to interview him. Their story was that in the course of writing his confession, he jumped at them, or something happened. In any event, they shot him. They shot him dead. And then they basically deported everybody who knew anything about the case, including Todashev’s girlfriend. So, there’s a—and then there’s been no independent investigation of why, what happened in the shooting and what really went down. So there’s this huge mystery about the role of Ibragim Todashev and his involvement with the [Tsarnaev] brothers, with—and the involvement in the shooting death.

The hard drive for Ibragim Todashev’s computer was finally turned over to the defense team only two weeks ago, along with about 9,000 or some new documents that the prosecution finally turned over. That’s one of the reasons, from a fundamental fairness or due process perspective, the defense requested to have additional time to prepare for the trial. There are so many unanswered questions about the role of the police and the FBI in the shooting of Ibragim Todashev and the relationship of that to the Tamerlan—or, to the Dzhokhar Tsarnaev trial.

This trial is going to go on for many, many months. There are a tremendous number of unanswered questions. And at this point, if the trial is going forward and we’re not going to have a plea, then, at the minimum, we need to bend over backwards to make sure that we’re going to have a fundamentally fair trial, so that we can use this to really recommit or show a recommitment to our justice system, and rather than sort of a rush to execution.

AMY GOODMAN: And the case of Robel Phillipos, Tsarnaev’s friend who was convicted of lying to the FBI, his attorneys said they’re going to appeal. Where does that stand right now, and how does that fit into this?

CAROL ROSE: Well, that fits into this. I mean, there are a number of people who knew Dzhokhar Tsarnaev or had a relationship to him who have been rounded up by the police, by the FBI, by the prosecution, many of whom may or may not be called in this trial. Phillipos was convicted of—when you say lying to the FBI, what he said is “I don’t remember. I was too high to remember.” So, that was his lie. He was convicted. There, I think, is an appeal, and my understanding is that that is going to be heard later on in this month.

AMY GOODMAN: Well, we want to thank you very much, Carol Rose, for joining us, executive director of the American Civil Liberties Union of Massachusetts. Her article headlined “Tsarnaev Trial Will Test What It Means To Be 'Boston Strong,'” it was published Monday on WBUR’s website, WBUR the NPR station in Boston. We’ll link to it at

When we come back, we look at the 114th Congress, and particularly one man in the Republican leadership. Stay with us.

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