Boston bomber Dzhokhar Tsarnaev is pictured in this file handout photo presented as evidence by the U.S. Attorney's Office in Boston, Massachusetts on March 23, 2015.
Police sergeant Sean Murphy, a tactical photographer, documented the dramatic manhunt for Tsarnaev, four days after the bombs killed three and wounded more than 260 near the finish line of the marathon on April 15. Here, officers are seen at the boat in which he had hidden.
On Friday, the United States First Circuit Court of Appeals vacated the death sentence received in 2015 by Dzhokhar Tsarnaev, the surviving member of the duo who perpetrated the 2013 Boston Marathon bombing and the spree of gunplay and robbery that followed. Tsarnaev had admitted his involvement in the bombing, so the “guilt phase” of his initial trial was not affected. His lawyers succeeded, however, in convincing the appeals panel that the judge had not been careful enough about jury selection.
If the Justice Department wants Tsarnaev to face the needle, it will have to appeal upwards or go for a do-over of the “penalty phase.” The appeals court upheld two dozen convictions carrying life sentences, so no matter what happens, Tsarnaev will remain in super-secure federal custody for the rest of his life. Indeed, the author of the appellate decision, Judge Rogeriee Thompson, emphasizes this almost to the point of celebrating it.
But what specifically was the mistake that the trial judge made? It goes back to 1960s Boston mob history, believe it or not. Although, as the mafia history buffs would be quick to let me know if I didn’t mention it, the “Boston mob” of that period was controlled in Providence, R.I.
The key case that inspired the Tsarnaev ruling is Patriarca v. United States, heard in 1968 by the same First Circuit court. Raymond Patriarca (1908-1984) is said to have run organized crime in New England from a vending-machine company office in Providence. In 1967 one of his cronies went to the grand jury with a tale of conspiracy and murder. The snitch’s unhappy lawyer, John Fitzgerald, soon had a bomb go off in his face when he started his car. (Fitzgerald lived to tell the tale, minus a leg, and decided to put some miles between himself and Massachusetts, founding a family dynasty of lawyers in South Dakota.)
The key case that inspired the Tsarnaev ruling is Patriarca v. United States, heard in 1968 by the same First Circuit court
Patriarca’s counsel, with a brazenness you may have thought was only found in fiction, tried to have the venue of Patriarca’s trial changed because of the unfavourable publicity surrounding the car bomb. When that didn’t work, the capo’s lawyers asked the judge to ask the jurors whether they had been influenced by (admittedly numerous) news reports identifying the defendant as a Cosa Nostra boss.
(In U.S. law, examination of jurors takes place during the “voir dire” process, which precedes the trial. In Commonwealth legal jargon, “voir dire” is practically the antonym of this: it refers to hearings of evidentiary or procedural issues within trials, ones that take place with the jury absent.)
They weren’t so fussy about this sort of thing in the ’60s, so the judge in the Patriarca trial just got the jury together in the box and asked them directly: “Is there any member of the jury here who feels that he would not be able to give the defendants a fair and impartial trial?” Bueller? Bueller? Nobody piped up, so the trial went ahead (to a conviction).
The ’60s version of the First Circuit court thought, as you might think, that this was a fairly useless gesture. They decided that it wasn’t a reversible error, but “Patriarca,” the name of New England’s pre-eminent mobster, also became the by-name of a sequence of cases establishing principles for voir dire. (Frankly, I wonder if the whole thing wasn’t just a misunderstanding resulting from an incredibly on-the-nose surname.)
The Patriarca appeal court established what became a firm rule of U.S. law. In high-profile criminal cases preceded by a great deal of publicity, judges should “examine each prospective juror,” individually and separately, “with a view to eliciting the kind and degree of his exposure to the case or the parties.” It is thought especially important that jurors aren’t left to decide for themselves whether they can act impartially, because, well, pretty much everyone on earth thinks he can. So that responsibility belongs to the judge. He cannot avoid it or take shortcuts.
In 2020, the Patriarca rules are highly evolved. The trial of Dzhokhar Tsarnaev provided them with the toughest test imaginable. Like his mafioso forerunner, Tsarnaev unsuccessfully sought to change the venue of the trial to anywhere on earth but Boston. The judge, George O’Toole Jr., declined.
But this, in the appeal court’s view, made Tsarnaev’s entitlement to a strong and detailed voir dire all the more important. Some of the news reports that appeared in the media during and after the manhunt for Tsarnaev contained facts or quotations that would be inadmissible at trial. (Most notably, there was some material cribbed from an illegal interview that police held with Tsarnaev in hospital after they shot and captured him. He got no “Miranda warning” about his rights and his repeated pleas for a lawyer were, for a while, ignored.)
Some of the news reports that appeared in the media during and after the manhunt for Tsarnaev contained facts or quotations which would be inadmissible at trial
So the judge had a duty to question prospective jurors closely. Judge O’Toole did make some Patriarca efforts: the jury pool had been given questionnaires asking them “what newspapers, radio programs and television programs they viewed and with what frequency, as well as how much media coverage they had seen about the case.” But there was not much follow-up.
A majority of the jurors who were eventually sworn in said in voir dire that they were news consumers, and admitted that they believed Tsarnaev to be guilty, but attested that they were confident they could clear their minds and give the terrorist a fair trial. Tsarnaev’s lawyers, obviously conscious of the Patriarca issue, had asked the judge to consider deeper “content-specific” questions about what jurors had read or heard. This was deemed impractical — an error which doomed the trial.
And, after all, a human life is at stake. In U.S. capital cases, every principle of due process is inevitably given the utmost restrictiveness, turning appellate law into something ossified and almost inhuman in its intricacies — more like Habsburg royal court etiquette than healthy criminal justice. That is the price, or one of the many prices, that the American republic pays for preserving the ultimate legal penalty.
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