home

Tsarnaev Trial Start Delayed, New Battle Over Venue

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.

< Jane Doe #3 Strikes Back at Dershowitz | Friday Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    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.

    Parent

    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?

    Parent

    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".

    Parent
    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.

    Parent

    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 tha