BOSTON - The long-running process of choosing a jury to hear the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev is due to wrap up on Tuesday with the judge and lawyers for both sides selecting the panel of 12 jurors and six alternates.
That jury will determine if Tsarnaev, 21, is guilty of killing three people and injuring 264 with a pair of homemade bombs at the race's crowded finish line on April 15, 2013, and with fatally shooting a police officer three days later.
Tsarnaev could be sentenced to death if he is convicted, a fact that made jury selection in the federal trial challenging in Massachusetts, where state laws do not allow for capital punishment and the practice is unpopular.
US District Judge George O'Toole in early January summoned more than 1,350 potential jurors to fill out questionnaires on their ties to the attack and their views on the death penalty. To be eligible to serve, candidates needed not to have formed a set opinion of Tsarnaev's guilt and to be willing to consider voting for execution if he was found guilty.
Tsarnaev's lawyers last week asserted that the court had violated its own procedures about random selection, reordering jurors as they arrived in a way that reduced the number of black candidates questioned.
Prosecutors and defence lawyers on Tuesday will work through the approximately 70 provisionally qualified candidates to select 18 jurors and alternates to hear a case that could run into June.
Given the high likelihood of an appeal if Tsarnaev is convicted, O'Toole will likely be looking to avoid missteps that could give defence attorneys grounds to challenge the fairness of jury selection, said Robert Bloom, a professor at Boston College Law School. "If I were the judge, I'd have to be a little bit nervous about the possible appellate route the defence might take,"Bloom said.
"The chance of an appeal being successful is not that great but you can expect that the appeal will be made." Tsarnaev's attorneys on Monday offered a possible glimpse into their strategy when they argued that they need to be able to discuss the defendant's relationship with his older brother, Tamerlan, early in the trial.
They described 26-year-old Tamerlan, who died following a gun battle with police three days after the bombing, as the driving force behind the attack, saying that his younger brother participated out of submissiveness.