Crime

What Overturning The Boston Bomber Death Sentence Means

The judge should have asked about not just about their degree of exposure to the case, but the kind of exposure.

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Dzhokhar Tsarnaev was convicted in the 2013 Boston Marathon bombing, but last week a federal appeals court overturned the decision to execute him due to the trial judge’s failure to properly screen the jury. It will not change the verdict of conviction on the underlying charges, but at least now Tsarnaev, 18 years old at the time of the incident, will not be executed.

Realizing the controversial nature of the ruling, the appellate judges made sure to point out in their written decision that Tsarnaev will still spend the rest of his life in a maximum-security prison deep underground in Florence, Colorado. He’s not getting off easy.

The trial took place in Boston within 20 months of the bombing. Defense attorneys moved four times for a change of venue claiming it would be impossible to get a fair jury in the same town where the bombing occurred.

Federal Judge George O’Toole disagreed in spite of the massive amount of media coverage capturing the event itself, the chase of the suspects (Tsarnaev’s brother died in a gun battle with police), and later the trial, verdict and sentence.

It’s tough to get an unbiased jury in any trial, but when the charges are so heinous and the event so close to home, it’s almost impossible.

Interestingly, the circuit court did not base its decision to overturn the death penalty on the denial of a change of venue, but rather on O’Toole’s failure to sufficiently scrutinize jurors (who decided the death issue) for potential prejudice.

The decision is important not only because it gives Tsarnaev a second chance at life, but because it’s a template for judges in all high-publicity cases on how to better select fair jurors.

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Whether they be death-penalty eligible or not, all defendants deserve jurors free from the taint of negative publicity. Many judges handling these cases are first-timers to such giant media attention. Take the cases of the machete murder of the 16-year-old boy called “Junior” in the Bronx last year, or the trial of Harvey Weinstein in January. Both of these trials were the first time either judge dealt with such a publicity onslaught.

Super-trials like these don’t come up that often, but when they do, the presiding judge faces a universe of worries he’d never had to deal with before. How to accommodate the crowds, keep people safe, handle the incessant media attention, and assure that unsequestered jurors won’t be tainted by what they see online or hear from friends.

It all comes down to trusting the jurors’ self-reporting. When they say they’re not posting about the case on social media or viewing anything related, is it true?

Appellate judges reviewing the Tsarnaev conviction found the judge abused his discretion in failing to either question or kick off two jurors when their social media postings were brought to his attention during trial.

Juror 286 (all jurors were anonymous and assigned numbers), the foreperson, retweeted a post commending “all of the law enforcement professionals who went through hell to bring in that piece of garbage.”

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Another juror posted on Facebook that he was among the pool of people being considered for the jury to which his friend replied, “if you’re really on jury duty, this guy’s got no shot in hell.”

Defense attorneys argued in appeal that these jurors came into the case with undisclosed biases. The appellate court agreed, “A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished. To help make that promise a reality, decisions long on our books say that a judge handling a case involving prejudicial pretrial publicity must elicit ‘the kind and degree’ of each prospective juror’s exposure to the case if asked by counsel. Only then can the judge reliably assess whether a potential juror can ignore that publicity, as the law requires.”

Although the court called up some 1,373 jurors in its venire and had them fill out a 100-question questionnaire, it was not enough vetting to understand what the jurors’ exposure to the case had been, what they may have written or read about the crime, and whether what ever prior exposure to the case they had, made them unable to be fair.

The judge should have asked about not just about their degree of exposure to the case, but the kind of exposure.

Another issue implicit in this is that jurors are not the best judges of their own impartiality. Prospective jurors may have an interest in concealing their own biases or may not even be aware of them.

The more information the court and attorneys have in determining who to seat, the better they can more objectively decide who is the most likely to be fair.

I seated a person in a rape case a long time ago who failed to reveal that she volunteered on a rape hotline. When I questioned her after the conviction she stated, “Nobody ever asked me.” Needless to say, I never fail to ask that question now.

Setting time limits on voir dire, while expedient for the court, creates further hardships for attorneys. It’s tough to get to know anyone during jury questioning, but with diminishing time limits imposed for each round (the first round 20 minutes, the next 10, the third only five), getting sufficient evidence to deselect jurors becomes tough.

With this decision, judges in high-stakes, high-publicity cases might think twice before cutting short counsel’s voir dire. And if information is presented that challenges the juror’s ability to be fair, a judge might have to excuse him or her even if in the middle of trial.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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