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.