Tsarnaev Trial Start Delayed, New Battle Over Venue

By Jeralyn, Section Terror Trials
Posted on Fri Jan 23, 2015 at 08:57:00 AM EST
Tags: Dzhokhar Tsarnaev, Boston Marathon Bombings (all tags)

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Dzhokhar Tsarnav's defense team filed a third motion to change venue yesterday. They provided a lot of statistics and quotes from the voir dire process so far to show Tsarnaev cannot get a fair trial in Boston.

In the filing Thursday, the lawyers said questionnaires filled out by 1,373 prospective jurors from Eastern Massachusetts show that 85 percent of them either believe Tsarnaev is guilty, have some self-identified connection to the case, or both.

“There is now no doubt that these emotions are deep, that they linger, and they are peculiar to and permeate the entire Eastern Division,” of Massachusetts, the lawyers argued, adding that 68 percent of the jury pool believes Tsarnaev is guilty “before hearing a single witness or examining a shred of evidence at trial.”

[More...]

The Judge was not happy the defense filed their brief publicly and later yesterday issued this order placing it under seal:

Jury selection is currently underway in this matter. Great care has been taken to maintain the integrity of the proceedings and to protect the privacy of jurors, including by keeping the completed questionnaires confidential and non-public. Earlier today, the defendant filed a Third Motion for Change of Venue.

The memorandum in support of the motion quotes from the confidential juror questionnaires, attributing the quotes to specific prospective jurors who are identified by juror number, including jurors who have not yet been interviewed in the course of the public voir dire proceedings.

This was improper. Consequently, though the damage already may have been done by the defendant's public filing of confidential material, I have ordered the memorandum in support of the defendant's motion to be placed under seal until further order.

The press has been in the courtroom and doing live reporting of the questions and answers from the prospective jurors according to their juror numbers. The judge's beef seems to be that the defense quoted from their questionnaires in its filing, not just their answers during live questioning.

The brief is still available online as some sites published it before it was sealed. I just finished reading it (and won't link to it or quote it since it's now sealed.) I will say some of the answers people gave are simply disgusting and I think the public should be allowed to see them. All the judge had to do was redact the juror numbers of those whose written answers were quoted -- not seal the whole brief.

Also yesterday, the court sent out a notice to the media yesterday that because jury selection is going so slowly, the trial will not begin next week as planned. No new date has been set.

The New Yorker has just published this interesting article on the jury selection process so far. The most memorable paragraph discusses a dispute between the parties over the meaning of the presumption of innocence:

If jurors cannot be expected to believe that Tsarnaev is innocent, there is the question of what the “presumption of innocence” means. On the third day of the voir dire, an argument erupted between the defense and the prosecution about this basic issue. Judy Clarke, one of the defense attorneys, said that the questioning was conflating the presumption of innocence with the concept of burden of proof, and assuming that it was enough for a prospective juror to understand that it was the government’s duty to show that Tsarnaev was guilty. The judge sided with the prosecution, saying that “presumption of innocence” is “a term of art” that does not actually mean presuming the innocence of a defendant.

I tracked the history of the phrase back in 2003 here, writing that in 1895, the U.S. Supreme Court traced the history of the presumption of innocence in Coffin v. United States, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. (The case was later overruled on grounds unrelated to the presumption of innocence issue.)

The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence -- by informing the jury that a defendant is presumed innocent. The Court stated,

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Courts still cite the 1895 Coffin case as controlling on the issue in federal trials. For example, in a September, 2014, U.S. District Court Judge Katherine Forrest (now presiding over the bitcoin case of Ross Ulbricht) wrote an order in another case (available here)stating:

The U.S. Constitution provides that each defendant is presumed innocent until proven guilty. See Coffin v. United States, 156 U.S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.").

Different standards may apply for state trials, but Tsarnaev is being tried in federal court, where the presumption of innocence is not and has never been, as far as I can tell, merely a term of art.

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Tsarnaev Trial Start Delayed, New Battle Over Venue | 51 comments (51 topical)

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I read the brief (5.00 / 1) (#1)
by scribe on Fri Jan 23, 2015 at 06:18:46 AM EST

It's actually rather understated.

I've been following the trial, though at a distance.

It's a disgusting spectacle, made worse by a judge who gives every indication of being hell-bent on railroading a conviction and a death penalty, and aiding and abetting the thuggery of Carmen Ortiz' US Attorney's office.

I pray for Tsarnaev. I refrain from praying for anything other than actual justice. For everyone involved.

I suppose one can understand the emotional rending from the events of 2 years ago. Would that the people in charge of things would understand that even the appearance of a fair trial is important, not only in Boston (where everyone might well like to see a gallows on the Common and Tsarnaev at the end of the rope) but around the world. This patently unfair[-appearing] trial will be just as much a cause of more trouble as were the Abu Ghraib photos. Which, in case no one is looking, still cause more young people to pick up something and go after the West or America.

But, I guess that's too ... something for the Court to understand.

Believe it or not (none / 0) (#5)
by CST on Fri Jan 23, 2015 at 09:23:01 AM EST

I think the city overwhelmingly thinks he's guilty - but doesn't want him on a gallows at the end of a rope at all.

One other unfortunate thing about the venue is that Boston is actually very anti-death penalty compared to the rest of the states, even on this case. But if you've indicated you don't support the death penalty you are automatically kicked off the jury. Which is a whole separate issue, IMO, since those people might also be more likely to believe in the presumption of innocence. But don't mistake a belief in guilt as a call for his head. Because that is not there.

That being said - I think they should probably change the venue.


Maybe they can swap venues with (none / 0) (#8)
by Mr Natural on Fri Jan 23, 2015 at 10:47:48 AM EST

Swami Witness, because that's how far away from Boston the juror pool will have to be to find people who haven't formed opinions.

IMO, they're asking the wrong questions. The question isn't, do you believe he's guilty? The question is, can anything change your mind?


I dunno (none / 0) (#11)
by CST on Fri Jan 23, 2015 at 10:54:08 AM EST

I think there's a pretty big gap between "have you formed an opinion" and "has his name and face been plastered all over the local news for a year and a half and you know people who were personally impacted by it".


: I live a long way from Boston... (none / 0) (#24)
by Mr Natural on Fri Jan 23, 2015 at 03:49:49 PM EST

but I went to school with a bunch of friends from there and who still live in the area. It was hard not to think of them when that happened.
Five days into this trial everybody in that courtroom will be je suis Bostonianizing.

It would appear equally axiomatic (5.00 / 3) (#6)
by Reconstructionist on Fri Jan 23, 2015 at 10:17:03 AM EST

that the term "presumption of innocence" cannot mean belief of innocence. Lawyers should all understand what a "presumption" is in the law (jurors and other laypeople, of course, might not). It does not connote a belief in the fact which is to be presumed.

A "presumption" refers to a fact which requires no further proof to meet the burden of proof placed upon the party relying on the presumption. If the presumed fact is not challenged and rebutted by contrary evidence sufficient to meet the applicable burden of proof, then the factfinder must accept the presumed fact as true.

All factual presumptions are "rebuttable presumptions." Irrebuttable or conclusive presumptions apply only to issues of law (e.g., that a person below the legal age to consent to sexual relations cannot "consent" to havce sex despite any evidence the person was a willing participant).

The Supreme Court in Taylor v. Kentucky, 436 U.S. 478 (1978), provided a concise and clear explanation of these principles in a case holding it is error not to give a requested "presumption of innocence" instruction even if the jury is properly instructed as to the burden of proof:

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."Coffin v. United States,156 U. S. 432, 156 U. S. 453 (1895). The Coffin Court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States. While Coffin held that the presumption of innocence and the equally fundamental principle that the prosecution bears the burden of proof beyond a reasonable doubt were logically separate and distinct, id. at 156 U. S. 458-461, sharp scholarly criticism demonstrated the error of that view, see, e.g., J. Thayer, A Preliminary Treatise on Evidence 551-576 (1898) (hereafter Thayer); 9 J. Wigmore, Evidence § 2511 (3d ed.1940) (hereafter Wigmore); C. McCormick, Evidence 805-806 (2d ed.1972) (hereafter McCormick). [Footnote 12]

Page 436 U. S. 484

Nevertheless, these same scholars advise against abandoning the instruction on the presumption of innocence, even when a complete explanation of the burden of proof beyond a reasonable doubt is provided. Thayer 571-572; Wigmore 407; McCormick 806. See also ALI, Model Penal Code § 1.12(1) (Proposed Off.Draft 1962). This admonition derives from a perceived salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence. Wigmore described this effect as follows:

"[I]n a criminal case the term [presumption of innocence]

Page 436 U. S. 485

does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused's guilt, while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases."

Wigmore 407.

This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. See, e.g., Estelle v. Williams,425 U. S. 501 (1976). And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right.

Sounds Like a Trifling Quibble (none / 0) (#9)
by RickyJim on Fri Jan 23, 2015 at 10:53:11 AM EST

So if a jury is instructed to decide the case only on the evidence presented in court + a charge itself is not evidence proving the charge + guilt must be proven beyond a reasonable doubt, is that equivalent to being instructed as to presumption of innocence + guilt must be proven beyond a reasonable doubt? The argument against using the term "presumption of innocence" in court is that its name and meaning are confusing to both lay and professionals, and apparently the judge's comments in the Boston case are evidence for that.


NO!!!!!!!!!! (5.00 / 1) (#13)
by Reconstructionist on Fri Jan 23, 2015 at 11:04:07 AM EST

you are reading it pretty much completely backward. The Taylor court is QUITE CLEARLY stating that despite the logical similarity of the concepts that a trial court must give a presumption of innocence instruction, in addition to the instructions on the burden of proof if requests and that it is reversible error to refuse to do so.

It's not an argument against using "presumption of innocence" because it's confusing, it's a mandate to use it because it stresses to the jury the importance.


That's nice, Reconstructionist. (none / 0) (#15)
by Mr Natural on Fri Jan 23, 2015 at 11:21:08 AM EST

Reality Bites, as is in what the Judge actually said.

The monopolists of the bar pretend, with all the air pressure at their disposal, that our laws are a system constructed with mathematical logic and rigor. They are not. They are an ad hoc muddle glued together with ad hoc b/s.

I don't have any sympathy for Tsarnaov. But the Judge revealed a humungous bias with his statement. He should be thrown off the case now.


First, (5.00 / 1) (#16)
by Reconstructionist on Fri Jan 23, 2015 at 11:29:41 AM EST

You don't even know exactly what the judge said. Notice that there are quotes only around "term of art" and not around: ...doesn't mean....

Second, how does that comment, even assuming it was made as presented, made outside the presence of any potential juror, show this judge is biased?

: LOL. You're right. (none / 0) (#19)
by Mr Natural on Fri Jan 23, 2015 at 12:07:55 PM EST

Let's presume him innocent.

"Presumption of innocence" (none / 0) (#12)
by Mr Natural on Fri Jan 23, 2015 at 11:01:31 AM EST

means nothing in a system that presumes guilt.

The only thing that allows us to move forward in such a biased environment is that most of the time the cops actually do get the right person. (I hope.)


: No System Presumes Guilt (none / 0) (#14)
by RickyJim on Fri Jan 23, 2015 at 11:16:42 AM EST

except, some argue, the US. See.

Subject to change (none / 0) (#2)
by Jim in St Louis on Fri Jan 23, 2015 at 06:29:54 AM EST

I think that you will not find many potential jurors who have not heard of the case-even with a change in venue. And humans being humans they could have an opinion, but during the selection process the question of importance is not "have you formed an opinion?" but should be "will you be guided by the facts you hear in court and the judge's instructions?"

I'm also interested in the defense plan here- are they actually going to try and say he didn't do it? I would have guessed some sort of diminished capacity- undue influence from the older brother --just a crazy mixed up kid- look how cute he is- such dreamboat eyes--type of defense. If they are going for outright aquital saying the cops got the wrong guy in the boat then that will be a tough sell.

What Might the Reduced Charges Be? (none / 0) (#3)
by RickyJim on Fri Jan 23, 2015 at 08:37:53 AM EST

I agree that a jury setting him free is not a realistic possibility.


LWOP. (none / 0) (#7)
by oculus on Fri Jan 23, 2015 at 10:39:56 AM EST

: I am assuming that you mean (5.00 / 2) (#25)
by Zorba on Fri Jan 23, 2015 at 04:02:02 PM EST

"Life without parole," as opposed to "Leave without pay." ;-)

The dreamboat eyes defense won't work; (none / 0) (#10)
by Mr Natural on Fri Jan 23, 2015 at 10:53:41 AM EST

He was banged up, more than a bit, in the shootout. Even with the ACA, I doubt if the state has paid for reconstructive surgery.


I've Been Trying for Years (none / 0) (#4)
by RickyJim on Fri Jan 23, 2015 at 09:01:51 AM EST

to figure out what "Presumption of Innocence" has in it besides "Proof Beyond a Reasonable Doubt". I have read all the referenced material and more and I doubt I ever will see it. By the way, Masha Gessen, the writer of the New Yorker article is a native Russian and often reports from that country. I hope she brings up how the trend toward jury trials is going in Russia and contrasts them with what she sees in the Boston trial.

The Sixth Circuit Pattern Jury Instructions (5.00 / 1) (#17)
by Jeralyn on Fri Jan 23, 2015 at 11:49:00 AM EST

contain a full discussion as to the difference and the law as it has evolved, including the different standards for state and federal trials. You can read it here.


The Value Add of Presumption of Innocence (none / 0) (#20)
by RickyJim on Fri Jan 23, 2015 at 12:26:42 PM EST

seems to be the two things I mentioned in replying previously to Reconstructionist,

The charge itself is not evidence of its proof,
Only evidence presented in court is to be used in deciding guilt or innocence.

The Sixth Circuit says,

Instead, the defendant starts the trial with a clean slate, with no evidence at all against him,
and the law presumes that he is innocent. This
presumption of innocence stays with him unless
the government presents evidence here in court
that overcomes the presumption, and convinces
you beyond a reasonable doubt that he is guilty.

I think I say it clearer.


Well, (5.00 / 2) (#21)
by jbindc on Fri Jan 23, 2015 at 12:45:51 PM EST

A defendant could sit at the table and (theoretically) play cards throughout the trial and not put on a case. S/he doesn't have to prove anything. (Leaving aside this would be bad trial strategy and malpractice). The prosecution still shoulders the entire burden.

If, theoretically, the judge could allow opening statements to take place and then sent the jury back to deliberate, the presumption of innocence is still there and the jury MUST still come back with a not guilty verdict, because no evidence would have been presented at that point.

Frankly, in my limited court observance experience, it seems more people have more trouble with the concept of "beyond a reasonable doubt".


I was going to use that hypothetical too (none / 0) (#27)
by ruffian on Fri Jan 23, 2015 at 04:17:18 PM EST

the number of jurors voting to convict after the prosecution rested without putting on a case (probably not allowed, but hypothetically), that would be your measure of how well the presumption of innocence is working.


You can take your cues from the Stanford (5.00 / 1) (#30)
by Mr Natural on Fri Jan 23, 2015 at 05:07:57 PM EST

Prison experiment. Once people have been labeled, defendant, attitudes about and behavior toward the person thus labeled will change. Idealized presumptions of innocence disappear down the drain.

Criminal Defense attorneys have a tough job, a very tough job.


Which is why (5.00 / 2) (#32)
by NYShooter on Sat Jan 24, 2015 at 09:31:33 AM EST

less than 10% of defendants actually choose to go to trial.

I have always felt that until, and unless, the State gives a defendant all the financial, and expert, resources they themselves possess, non-millionaire defendants don't stand a chance for justice.


You mean (none / 0) (#35)
by jbindc on Sat Jan 24, 2015 at 11:49:47 AM EST

The highly criticized Stanford Prison Experiment?


: Abu Ghraib (5.00 / 1) (#36)
by Mr Natural on Sat Jan 24, 2015 at 12:00:35 PM EST

To me it becomes pretty clear (none / 0) (#18)
by ruffian on Fri Jan 23, 2015 at 12:00:44 PM EST

that something is not just 'a term of art' when one side fights against its use.

We all want the perpetrator of that horrible attack to be convicted and gotten off the streets, to say the least. But as someone said above it would benefit this country immensely if this trial was one of the most exemplary we have ever conducted. That said, we seem to be especially good at shooting at our own feet these days, so I am not optimistic.

No one is fighting against its use. (5.00 / 1) (#22)
by Reconstructionist on Fri Jan 23, 2015 at 01:48:52 PM EST

At this stage, the argument is over whether prospective jurors should be excused for cause (and more broadly whether the trial should be moved because it will not be possible to seat a jury in Boston composed of people who should be subject to being excused for cause).

At this point the judge has said nothing more, in essence, than he is not yet convinced it will be impossible to seat a properly qualified jury in the Eastern District.

Personally, I'd choose to move the trial despite the important considerations favoring holding a trial in the district where the crime occurred. I think those considerations are outweighed by grounds against holding such a widely publicized and emotional case in Boston. The standard is that when a probability exists(i.e., it's more likely than not) that pretrial publicity will preclude a fair trial before an impartial jury, a "presumption" (there's that word again) arises that a court should grant a change of venue. The standard for judging that is not whether jurors remember the case or have opinions about it but whether those opinions are so fixed and unalterable that the jurors cannot put what they have heard and the opinions they have formed aside and render a verdict based solely on the evidence presented in court and the instructions of law given by the Court.

I think that standard (which calls for the judge to consider the "tolaity of the circumstances) has been met by the combination of the statistical evidence from surveys, the responses to the jury questionnaire, the in-court voir dire of the early prospective witnesses and the more ephemeral but no less real situation where in this particular community with this particular crime not only do many people at least have an indirect connection to someone affected by the incident but it's become a "community solidarity ritual" (for lack of a better term) -- see "Boston Strong", etc)

That does not lead me to throw around wild-eyed accusations that the judge is corrupt and biased, that the trial is rigged, or that what has transpired so far supports any indictment of "the system." Tsarnev has highly experienced and capable lawyers. They are making every argument possible (some better than others) for moving the case (and I am confident will represent him more than ably throughout), and all the judge has held so far is that he wants to keep trying to seat a jury.

The fact is that most if not all the reasons why a jury will be difficult to seat in Boston will be present elsewhere. Despite that because the "knowing someone if only indirectly" and "community solidarity" issues will not exist to a great degree elsewhere, it would br wise to mobve the case.
It would also mean one less issue on appeal.


Good luck with moving the case. (none / 0) (#23)
by Mr Natural on Fri Jan 23, 2015 at 03:46:53 PM EST

The other day Jeralyn mentioned the phenomenon of jury candidates campaigning for seats in that box. Whether they did so for anticipated personal gain or anticipation of inflated self-importance or simply the chance to hold someone else's life in their hands wasn't clear.

I'm guessing, extrapolating from behavior of humans I know, or simply pulling the notion out of my wazoo, that Judges can suffer similar moral hazards.


This sounds like an argument to me (none / 0) (#26)
by ruffian on Fri Jan 23, 2015 at 04:11:52 PM EST

but admittedly it is that reporter's version and I wasn't there.

On the third day of the voir dire, an argument erupted between the defense and the prosecution about this basic issue. Judy Clarke, one of the defense attorneys, said that the questioning was conflating the presumption of innocence with the concept of burden of proof, and assuming that it was enough for a prospective juror to understand that it was the government's duty to show that Tsarnaev was guilty. The judge sided with the prosecution, saying that "presumption of innocence" is "a term of art" that does not actually mean presuming the innocence of a defendant.

Not saying it necessarily indicates bias on the part of the judge.


Yes, itt's an argument (none / 0) (#29)
by Reconstructionist on Fri Jan 23, 2015 at 05:03:18 PM EST

but not an argument against using the term presumption of innocence or applying the principles embodied in that term. The judge and even the prosecution agree that to be seated jurors must evince a willingness and ability to apply the POI regardless of any knowledge or opinion with which they enter and afford the defendant the proverbial clean slate and base their decision only on the evidence presented in court (but see the caution in my post above about accepting expressions of willingness and ability at face value).

It appears the judge merely-- and correctly-- stated that the POI is not synonymous with holding an opinion of innocence at the start of the trial.


: Well, there's that. (none / 0) (#31)
by Mr Natural on Fri Jan 23, 2015 at 05:12:33 PM EST

I've decided that he's guilty as sin, but I'd still that belief for the duration of a trial.
But then, I'm a saint, as cynical about my own beliefs and behaviors as I am about those of others.
What I can't imagine is how they'll be able to screen out the people who want on the jury. I wouldn't. Horror is bad enough at this distance.

: They would be better off (none / 0) (#33)
by NYShooter on Sat Jan 24, 2015 at 10:02:04 AM EST

if they changed the wording to something like, "You should hold the belief that the defendant enters these proceedings with a "clean slate," not guilty, nor innocent. Your final determination should be based strictly on the evidence presented in this courtroom."
By using the euphemism, "presumption of innocence," some juror's may infer from that instruction that