The jury in the Boston Marathon bombing trial on Wednesday did what it was expected to do, returning guilty verdicts on all 30 counts. Defendant Dzhokhar Tsarnaev is now eligible to be sentenced to death in the second phase of the trial, which could begin next week and last until June.
But how that second phase will unfold is an open and intriguing question. To win convictions against Mr. Tsarnaev, federal prosecutors harnessed waves of graphic and emotional victim testimony.
Judge George O’Toole’s order of “Just for the jury, please,” became a constant refrain – signaling that the exhibits were so graphic and unsettling that only the jury should see them, not the public.
Is the jury ready to deal with three more months of such evidence? “The government is certainly going to be wrestling with that question,” says David Hoose, a lawyer and an expert on death penalty cases in Northampton, Mass. “Are we shooting ourselves in the foot by putting all this on?”
There are legal elements to the question: If testimony becomes too graphic, a judge can disallow it. The defense has already objected once to graphic testimony early in the trial, but Judge O’Toole allowed the testimony.
More broadly, however, there is the question of what impact such testimony has on a jury, with research suggesting that serving on a jury in such a case can lead to some of the same symptoms seen in troops returning from war.
In rare moments, the effects of this approach on some jurors were visible. Several cried as Henry Nields, who performed Martin Richard’s autopsy, described the child’s fatal injuries.
Testimony in the sentencing phase could be just as visceral. The government will seek to prove “aggravating factors” for why Tsarnaev should be put to death – in other words, to prove that the crimes were severe enough that he deserves to die.
At the same time, Tsarnaev’s defense team will be trying to humanize their client and explore his personal history.
There are strict guidelines behind what may or may not be allowed in victim testimony. Jurors have to be able to hear how victims have been impacted by the relevant crimes, but they can’t hear so much graphic detail that it biases their judgment. It is up to the judge to find a way to strike this balance.
From the prosecution's perspective, the relatively quick guilty verdicts on all 30 counts might suggest that what they're doing is working – and they should continue.
"In a case like this it appears pretty clear that the prosecution has momentum," says Daniel Medwed, a law professor at Northeastern University in Boston. The timing of verdicts "suggests the jurors were quite moved by the prosecution’s case. So I think the prosecution would want to build on that and move on with case as quickly as possible."
Professor Medwed also asks of the jury: "Over time, could they become more accustomed to those images? It’s possible."
But others have stressed the toll that such trials can take on jurors.
Jurors are “unrecognized victims of the death penalty,” writes Janvier Slick, a clinical social worker who has counseled juries following traumatic trials, in The Oregonian. Deciding whether to sentence someone to death is a “distressing decision.”
A 2008 study from the Capital Jury Project found that many jurors on death penalty cases report physical and emotional reactions both during the trial and after its conclusion. These reactions range from a generalized fear and sense of loneliness to nightmares and loss of appetite. Some start experiencing sleeping problems and turn to smoking, drinking, or using prescription drugs.
Judge Michael Posnor, who presided over the trial of Kristen Gilbert, a Department of Veterans Affairs nurse who killed four of her patients, has spoken of the effect the trial had on him.
He began having dreams that featured him “either in the role of the executioner or the prisoner facing execution,” he wrote for the Death Penalty Information Center.
Mental health counseling will be made available to jurors in the Boston bombing case after the trial is over, according to Reuters. Other courts have taken similar steps, recognizing that traumatic trials make enormous demands on citizens who have not volunteered to bear them.
After a 2009 federal child pornography case that involved very young victims, the judge and a probation officer who specialized in such cases brought a psychologist to a meeting with jurors.
“The discussion lasted nearly two hours,” Judge Lawrence Stengle told US Courts, the website for the federal court system. The psychologist, the probation officer, “and I spoke briefly, then the jurors asked questions and offered comments. I believe the session was extremely valuable, and I will consider this option in future cases where the jury is exposed to very troubling evidence.”
Indeed, just talking to people can be one of the best ways to cope, Sonia Chopra, a consultant for the National Jury Project in Oakland, Calif., told CNN.
But for jurors that have been sequestered for long periods of time, “that's problematic, because they're not technically supposed to talk about anything that happens in the courtroom with anyone,” she said. “For the length of the trial, they're having to just internalize everything that they're hearing and they're seeing.”
In those cases, jurors can sometimes turn to each other, Nadine Kaslow, a psychologist at Emory University, told CNN.
“To cope, to survive, actually, you form these new families,” she said.
One of the simplest ways courts can help is just being courteous and moving as quickly as possible.
“Good jury management can alleviate sources of stress from the first contact with the jury panel, from limiting delays and wait time, to educating jurors on the voir dire and trial process,” says an article on the website of the Texas District & County Attorneys Association. “Travis County district judges take the time necessary to orient jurors, explain procedures and delays, and express a great deal of appreciation for their time and service...”
In Boston, Judge O’Toole has vowed to start the sentencing phase of the trial “expeditiously.”