Balkinization: The difficulty of trying defendants in the courtroom and not the media

The difficulty of trying defendants in the courtroom and not the media

Guest Blogger

Jeffrey Abramson

Death penalty cases test the limits of our belief that defendants -- even despised defendants -- deserve trial in court, not in the press.

Consider last week’s federal court decision throwing out Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence. The court acknowledged Tsarnaev’s admission of guilt for planting the deadly bombs near the marathon finish line. Nevertheless the court set aside the death sentence, since at trial the judge failed to adequately question jurors for bias created by pretrial publicity.

The judge’s mistake was to let jurors certify their own impartiality. No matter how much pretrial publicity they remembered, the judge was satisfied if jurors promised to put its influence aside. But, as Justice O’Connor once observed, a “juror may have an interest in concealing . . . bias . . . [or be] unaware of it.”

If ever there was a reviled defendant, Tsarnaev was it. He faced the cumulative prejudices that come from being a foreign-born Muslim accused of acts of domestic terrorism against innocent spectators at an iconic sports event. Add to that the killing of a child and two others, the maiming of many more, and the killing of an MIT police officer. If one is ever willing to countenance capital punishment, this would seem to be a fit case. But only if the community can give to Tsarnaev the justice he did not give to his victims.

In Tsarnaev’s case, it would have been a fool’s errand to disqualify prospective jurors for merely following the most dramatic story of the day. The law does not demand the impossible of jurors. But it was incumbent for the judge to question jurors individually about their level of media exposure. He needed to ask not just conclusory questions (“Can you be impartial?”) but open-ended ones (“What do you remember hearing or seeing?).

Up to a point, the trial judge tried to do this. Of 1,383 persons reporting for jury duty, he struck 68% for acknowledging that they already concluded Tsarnaev was guilty. Further questioning reduced the pool to 70.

But then the judge made mistakes. He refused to dismiss one prospective juror who posted on social media following Tsarnaev’s capture, “Congratulation to all . . . who worked so hard . . .to bring in that piece of garbage." This person made it onto the jury and served as foreperson. Another juror disobeyed instructions by posting to Facebook during jury selection and receiving back messages such as “If you're really on jury duty, this guy’s got no shot in hell."

These examples show how social media complicate the issue of prejudicial media exposure. As to more traditional press outlets, nine persons made it on to the jury without ever being individually questioned about what specifically they had been exposed to in the news. The judge simply took their word that they could put aside any preconceptions. These jurors may have believed this about themselves. But the judge needed to be the one making the determination.

As the appeals court noted, it is one thing to know that a person read news stories on the bombings. It is quite another if the person read and remembered specific articles quoting admired civic leaders calling Tsarnaev a monster, or worse, who did not deserve to live. It would be even worse if a prospective juror read of Tsarnaev’s non-Mirandized, and hence legally inadmissible, statements to federal agents.

Why did the judge not probe more deeply for the effects of pretrial publicity? Partly, he might have felt he had done what he could to cure an incurable problem. But he relied on a hunch that too much probing might create bias where none existed. The judge said he wanted to avoid directing attention to prejudicial material that prospective jurors may have all but forgotten. But the “all but forgotten” is the problem: jurors can sincerely believe they are impartial even while prejudicial media coverage latently lurks.

It is a basic premise of our legal system that even guilty defendants have the right to be tried and sentenced in court rather than the press. The Tsarnaev case is a textbook example of why death sentencing is particularly fraught for a defendant as reviled in the media as Tsarnaev was, and still is.

It may be that a death penalty can never be justly imposed. But even those who advocate capital punishment should aspire to have life or death decisions driven by what happens in the courtroom rather than in the media.

Jeffrey Abramson, author of We, the Jury: The Jury System and the Ideal of Democracy, is a professor of law and government at the University of Texas at Austin. You can reach him by e-mail at jabramson@law.utexas.edu.

Posted 9:00 AM by Guest Blogger [link]