I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.
The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating. When he does, there are actually three decisions to be made. (1) Is the factor factually true? (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?
It seems to me that there is not enough attention given to the second step. Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization." Ten jurors found that factually true. How many considered it mitigating? Did all 10 understand they could find it true and still say "So what? That's not mitigating."
These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago. But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.
The jurors probably get to the right end result in any case. In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating. Still, I would like to see this cleaned up.
The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating. When he does, there are actually three decisions to be made. (1) Is the factor factually true? (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?
It seems to me that there is not enough attention given to the second step. Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization." Ten jurors found that factually true. How many considered it mitigating? Did all 10 understand they could find it true and still say "So what? That's not mitigating."
These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago. But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.
The jurors probably get to the right end result in any case. In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating. Still, I would like to see this cleaned up.
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