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The Challenges Of Jury Selection In The Boston Marathon Bombing Trial


A federal appeals court has rejected the fourth request to move the trial for the accused Boston Marathon bomber out of the city. Lawyers for defendant Dzhokhar Tsarnaev say it's impossible to convene an impartial jury in Boston. In the coming weeks, we'll hear from a judge and a former juror about the challenges of jury selection in a media-saturated age. But this week, we called up Karen Fleming-Ginn, a jury consultant for courts all over the U.S. Karen, welcome to program.

KAREN FLEMING-GINN: Thank you very much.

RATH: So let's start with the specific issues that have come up in the Boston bombing case. The defense has said it's impossible to put together an unbiased jury in Boston because media coverage of the bombing is just inescapable. Is that a legitimate concern?

FLEMING-GINN: I think it is. I think the fact that it was such a sort of randomized event and so many - so many lives could have been lost, it really changes the context. I mean, if you think about Unabomber, who killed the same number of people and injured, I believe, fewer than 25 - and his venue was changed. So the fact that this one is not is very interesting to me professionally.

RATH: So talk about the concerns with the jury when there is this degree of attention. And how do you work with that?

FLEMING-GINN: I think it's difficult because any time a case gets this kind of - actually not even just national, but worldwide attention - all of a sudden, jurors who might otherwise want to get excused from jury duty want to be on the jury. It's a very sexy cocktail issue - cocktail fodder issue. And people get some notoriety for being jurors in a really famous case. So as a consultant, you really need to look out for people who are sort of concealing their true feelings in order to remain neutral and seem objective.

RATH: Do you think it would make sense in a case like this to sequester the jury?

FLEMING-GINN: I'm not a big fan of sequestering a jury because I think it's such an unnatural, fabricated experience that that also can change how they view the evidence and ultimately what the experience is like for those people.

RATH: And what about media distinct from news coverage? For instance, this week, a jury found Eddie Ray Routh guilty of murdering Chris Kyle. He was the main character in the blockbuster movie "American Sniper." The defense had asked for verdict of not guilty by reason of insanity. Do you think the movie had an effect on that jury's decision?

FLEMING-GINN: I have really mixed feelings about that. I've heard a lot of people say that the facts of the case were so egregious and so compelling on so many levels that the movie didn't really matter. I don't honestly know that. I don't know that we'll ever really know that. I think it was a really hard case, and it's just - it's a really, really hard road.

RATH: Let's talk about social media, which are not a new challenge in court rooms. Jurors are supposed to not post about trials on Facebook or Twitter. But during the jury selection process, are there social media habits that prosecutors or defense attorneys look for - look out for?

FLEMING-GINN: Well, I think that typically both sides are just leery of anybody who is a chronic poster on anything, just because the issues are so sensitive that something could leak out that could be just really detrimental to the trial. So I think that's the big one. But the underlying attitudes, beliefs and personalities are going to be more important.

RATH: And looking at the Boston bombing trial, there have been a lot of challenges, a lot of - a number of delays during jury selection. Do you expect a jury is going to be picked by next week when the trial is supposed to start?

FLEMING-GINN: Well, I think it could. I mean, I know that the judge wanted to cut it off when 70 jurors were qualified. But the interesting thing to me is that if both sides were to use all of their challenges, for both the, you know, the seated jury and the alternates, that would equal 70 people. So I'm surprised that Judge O'Toole is not having, you know, some padding with maybe a dozen extras or, you know, a few more so that in case people need to be excused for whatever reason. And that always happens, especially when the issues are as grueling and gritty as they are in this case, when people really understand not only the time it's going to take but what's going to be expected of them ultimately.

RATH: So you're worried about the pool not being big enough in the end?

FLEMING-GINN: I think - yeah. I'm just - I'm very shocked at the turn of events - first of all, not granting the change of venue and then also having so few people who are qualified to actually be selected.

RATH: Karen Fleming-Ginn is a jury consultant. Karen, thanks very much.

FLEMING-GINN: You're welcome. Transcript provided by NPR, Copyright NPR.