[This is my latest column for the CT Law Tribune.]
[Update: The First Circuit has granted a hearing on the motion for change of venue. I think it’s a sham. Read why here.]
Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial, a right to a fair trial and a right to a trial by an impartial jury.
At the same time, the public and the press have a First Amendment right of access to courts and to trials. These rights combine to form a “presumption of openness”. A judge may close a courtroom to some or all people only under the very strictest of circumstances, after giving all parties an opportunity to be heard and only in the least restrictive way possible.
The core value of this right to a public trial is to provide for public monitoring of the judicial process through open court proceedings and records because this public monitoring enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures. This “bright light cast upon the judicial process” by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. And of course, this openness is designed to give the public a better understanding of the criminal justice system.
The right to an impartial jury is of utmost importance for obvious reasons. While jurors are not required to be “totally ignorant of the facts and issues involved” they are required to put aside any biases they may have and decide the case based solely on the evidence presented to them.
In a case involving the death penalty, however, there is an added component to this impartiality and that involves the imposition of the ultimate sentence. Jurors must also not be fixed in their desire to impose life or death. The Supreme Court has approved this practice and these juries are called “death-qualified juries”.
For most people, the above principles are academic notions that they read about in textbooks or casebooks and they remain concepts in that ivory tower sense. Which is why it is extremely rare for us to be able to see these ideals given life in a case currently underway in Boston: the Boston Marathon bombing trial of Dzhokhar Tsarnaev.
All of the above mentioned rights are at loggerheads in the Tsarnaev trial: the media’s right to report on court proceedings has created an atmosphere of publicity in which it is impossible to find and seat impartial jurors. There has been such extensive coverage of the marathon bombing – one news agency billed it the top news story of 2014 – that finding jurors who haven’t made up their minds about his guilt or do not have any emotional connection to the case has become impossible.
According to the defense’s third motion for change of venue – which was denied just last week – an extraordinary 85 percent of the prospective jurors either believe Tsarnaev is guilty, or have some self-identified connection to the case, or both. 68 percent of prospective jurors already believe that Tsarnaev is guilty even before listening to any evidence. Finally, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Another poll conducted by the Boston Globe shows that the prejudice among potential jurors is even higher: 90% of those polled believe that Tsarnaev is probably guilty.
Over 13 days the parties have questioned 173 prospective jurors. Many of them have expressed the same concerns that the polls indicate: they think he’s guilty or they have some deep connection to the incident and cannot serve as a juror. Yet District Judge O’Toole plows on, adamant in his belief that an impartial jury is possible to seat in the epicenter of the terrorist attack. We, the public, have no way of knowing if that’s true, because he’s taken the unusual step of closing that portion of the proceedings to everyone but the lawyers. Every day, after a full day of questioning potential jurors, the lawyers and the judge meet in court to excuse some jurors, either for cause or by use of a peremptory challenge and move others into a the final category of those who might be selected. No one is allowed to be there for this process. Here’s where the second issue comes in: this is a partial closure of the courtroom and according to the United States Supreme Court in cases starting with Press-Enterprise I, courtrooms can be closed in very strict, limited circumstances (1) to prevent prejudice against a compelling interest; (2) when no other adequate alternatives short of closure exist; (3) the prejudice outweighs any First Amendment right of access, and; (4) this closure is very narrowly tailored. All of the above findings have to be made on the record, with the parties affected – the public and press – having an opportunity to be heard.
Judge O’Toole seems to have neglected to do any of this. There does not seem to have been a public hearing on this closure, nor is there any order of the Court making these specific findings supporting closure. In fact, the Boston Globe has a motion pending since January 28, 2015, asking the court to permit access to that latter part of the proceedings or, in the alternative, to be told which jurors were selected and which were excused. Two weeks have passed, no objection to their motion has been filed and the judge has not yet ruled. Every passing day without an opinions means another day that the public is in the dark. It also means that there’s one less day in which to seek a remedy from a higher court. By dragging his feet, the judge is doing the worst thing possible: stalling so as to render the issue moot.
Of the 173 questioned, we do not know how many were selected and more importantly, what reasons were given for those excused. The nightmare scenario is that the judge refuses to excuse jurors for obvious cause, thus forcing the defendant to burn up his challenges and thus leaving him vulnerable to being forced to accept later unsavory jurors. We simply don’t know if that’s the case and the public has a right to know. Are jurors being excused for simply not being strongly in favor of the death penalty? While currently Constitutional, observers should be allowed to determine whether they find this practice palatable, especially in a jurisdiction like Massachusetts which seems to have eschewed the death penalty a long time ago, both in practice and principle.
The high publicity death penalty case jury selection presents an interesting juxtaposition: preconceived notions of guilt are pitted against prejudices against capital punishment. Both may be strong held beliefs, but while the judge seems insistent on questioning and probing jurors who have made up their mind about guilt, those who lean toward life are automatically and unceremoniously excluded.
Judge O’Toole referred to the presumption of innocence as a “legal fiction” in an early ruling. In his desire to rush through a trial in Boston, oblivious to the prejudices of jurors and the rights of the public, he seems hellbent on attaching that moniker to yet another core right – the right to a fair trial.