The trial continues in Boston this week for the man accused in the bombing of the Boston Marathon. DzhokharTsarnaev faces the death penalty for those crimes. And next month, a pre-trial hearing in Vermont will begin in the case of Donald Fell, who faces the death penalty for the murder of a Clarendon woman in 2000.
Neither Vermont nor Massachusetts are states that have the death penalty, but having a trial that could end with capital punishment in those states is not an uncommon occurrence.
"Some offenses are both state and federal offenses. And in those circumstances where there is concurrent jurisdiction in the state and federal systems, generally what happens is that the prosecutors in both systems get together and make a decision about who will prosecute the offense, and sometimes it's both," said Jessica West, director of the Experiential Advocacy Program and an associate professor at Vermont Law School.
Under the federal system there is a possibility of capital punishment. Both cases involve federal offenses as well as state offenses. The Tsarnaev case is considered an act of terrorism, which is a federal offense.
Donald Fell, meanwhile, was charged with committing the murder of Terry King, but before allegedly killing her he transported her from Vermont to New York, and West said that is the justification for a federal offense in that case, which makes Fell eligible for the death penalty. Fell also killed his mother and her friend earlier before kidnapping King from a parking lot. Fell's accomplice in the crime, Robert Lee, killed himself in prison before being tried.
Donald Fell is getting a second trial because one of the jurors went and visited the crime scene and told other jurors about his visit. West said the juror's actions were troubling because the judicial system controls the evidence that is presented, or not presented, to the jury. "In a circumstance where a juror, here Juror 143, goes out and visits a scene that juror can come back and provide additional information that's not able to be cross examined or refuted, or rebutted or weighed or balanced by the other jurors," West explained. "So it does in some circumstances, and did here, result in a new trial."
West said jurors are given instructions to follow, including not to decide or think about the case in a way of deciding the outcome until all of the evidence is presented. "Yet, social scientists will tell us that's not in fact the way the brain operates." West said it's clear in the Fell case, however that Judge William Sessions had instructed jurors not to try to collect their own information, and Juror 143 violated that in something that was more than just negligence.
The jury will need to decide for a second time whether Fell committed the crimes and they'll have to make another determination on sentencing. "I don't think they're going to have a hard time coming to a conclusion with regard to the guilt or innocence of Mr. Fell," West said. "But the issue of the appropriate penalty is probably one that they're going to struggle with all over again."
West said picking a jury in a death penalty case presents its own challenges, in part because they are difficult cases to sit on, and jurors are reluctant to do that, both because of the length of the trials, and because of the emotional weight of making a sentencing decision.
"It's one of the things that abolitionists, people opposed to the death penalty point to, is the burden on those people who need to decide, the burden on the system, those kind of issues," West explained. "In a place like Vermont where there isn't the death penalty, where there may be a number of people opposed to the death penalty, the system has a mechanism for weeding those people out. A jury in a death penalty case must be 'death qualified' meaning the could impose the death sentence."
If you are picking people who are willing to oppose the death penalty are they biased in favor of the death penalty? West said that argument is made all the time. "And it's true. They are biased in favor of conviction, and they are biased in favor of the death penalty. But the system doesn't know another way to navigate the fact that it wants to have a set of jurors who can and are able to impose the law."
