I prosecuted terrorists in a courthouse that was a couple of blocks away from the World Trade Center that they had actually conspired to bomb. Our courtroom was similarly within simple strolling range of the FBI’s New York field office and the Holland Tunnel, which were likewise on the jihadists’ target list.
To be sure, it was not a death penalty case, but the same concerns of prejudicial pretrial publicity existed. The tip that it is not possible for an accused to get a reasonable trial in the city he has scared is improbable.
Why? If the jury was irritated by unjust bias from the start, then why does the court believe Tsarnaev’s convictions should stand? That a minimum sentence of life imprisonment must stand? That only the death charge must be reviewed?
A couple of weeks back, when the Justice Department ventured to restart executions of inmates sentenced to death by juries for unspeakable murders only to have federal judges (appointed by President Obama, in the primary) toss up roadblocks, I repeated an observation I’ve made numerous times throughout the years.
A terrorist who bombs Boston is not going to be seen with detachment and objectivity if he is instead tried in Philadelphia or Houston.
The court does reverse three firearms convictions, but on technical legal grounds not because of jury bias. (Aside: Most Americans will be puzzled by the technical legal rationale, which causes the court’s conclusion that Tsarnaev, a terrorist, was not taken part in a “criminal activity of violence” while he was bring a firearm.)
The outcome of the judgment, nevertheless, is that the trial judge failed to ensure that the Boston jury might be neutral and reasonable in light of all the prejudicial pretrial publicity. The court does reverse three guns convictions, but on technical legal grounds not because of jury prejudice. If the jury was irritated by unfair prejudice from the start, then why does the court think Tsarnaev’s convictions should stand? To be sure, it was not a death penalty case, but the same concerns of prejudicial pretrial promotion existed. The court intimates that the challenge of insulating a jury from publicity is more challenging today than it has ever been because the Internet and social media make promotion ubiquitous.
Beyond that, no one approves of terrorists. A terrorist who bombs Boston is not going to be viewed with detachment and neutrality if he is instead attempted in Philadelphia or Houston. The people in those cities are going to have actually been nearly as inundated by promotion about the atrocity as Bostonians.
In a criminal case, the issue with jurors is never ever whether they authorize of outright conduct. It is whether they can put aside their natural displeasure, determine what factually occurred, and faithfully use the law as instructed by the judge.
We’ll have to study the lengthy opinion. At first blush, however, it definitely appears that Friday’s judgment has at least as much to do with judicial hostility to capital punishment regarding concerns about the due process implications of intense media coverage.
The court intimates that the difficulty of insulating a jury from publicity is more challenging today than it has ever been since the Internet and social networks make promotion ubiquitous. To my mind, that undercuts the claim that changes of place are called for to guarantee a fair trial.
Domestic terrorist attacks are nationwide stories. Undoubtedly, people who reside in a city that has actually been attacked stand a greater chance of knowing a victim of the attack, or of being personally affected by the fallout of the attack. Such jurors can easily be weeded out in a skilled voir dire assessment.
More time will be required to study it since of the choice’s girth. The outcome of the ruling, nevertheless, is that the trial judge failed to guarantee that the Boston jury could be fair and impartial due to all the prejudicial pretrial publicity. There is a strong tip that the trial judge need to have granted a change of location.
This appears absolutely unpersuasive to me. To begin with, if there is grave doubt that Tsarnaev got a fair trial under the circumstances, then why does the court leave the bulk of his convictions undisturbed?
Yet, the court takes pains to guarantee everyone that Tsarnaev “will remain restricted to prison for the rest of his life.” The only staying concerns are whether the government will pick to re-try the death sentence phase of the case, and whether a brand-new jury will unanimously vote for a capital sentence in a case that the examining court– sooner or later, years from now– decides passes its evolving standards of fairness.
“Because much of the bench is hostile to the capital punishment, judges are wont to fashion reasons not to enforce it, a few of which have absolutely nothing ostensibly to do with the death sentence and make prosecution of other types of criminals more difficult,” I wrote.
We saw this again Friday. A federal appeals court in Boston threw away the death sentence of Dzhokar Tsarnaev, who completely killed three people and injured more than 260 others when he and his late bro, Tamerlan, bombed the 2013 Boston Marathon.
The three-judge panel included two Obama appointees, Judges O. Rogeriee Thompson (who composed the nearly 200-page opinion) and William J. Kayatta Jr., who formed the bulk. A Reagan appointee, Juan R. Torruella, concurred in the outcome and much of the thinking.