Recover the Law, Part 1: Tsarnaev’s Appeal and the Right to an Impartial Jury

by Mary W Maxwell, LLB

We need good law.  We have mountains of good law.  Good law does not have to get corrupted — as it is getting corrupted these days. This series “Recover the Law” is enthusiastic about law. It is a panegyric, not a eulogy.

Here, in Part 1, we begin with the current state of the appeal of Dzhokhar “Jahar” Tsarnaev. He was charged with 30 crimes related to the 2013 Boston Marathon bombing. At a federal trial in 2015 Jahar was convicted and sentenced to death. He is imprisoned at Supermax prison in Florence, Colorado.

He filed an appeal in 2016. As of now, three years later, we still don’t know much about the grounds on which the appellate team is basing their case. This is because most of the motions they submit are, at their request, under seal.

The one item that made it to mass media was a request in early 2019 to include some aspect of a triple murder that occurred in 2011 in Waltham.

Two other matters that are not secret are the applications by two groups of persons who want to be a “friend of the court”, an amicus curia, on behalf of the appellant.

The first such group to be accepted, in November 2017, is made up of “Three US Citizens.” And there is a group of “Eight Distinguished Citizens” (mostly lawyers), whose brief was accepted in 2018.

The Three Amici

The first group of amici is made up of three “dissidents.” Cesar Baruja, MD had written to President Trump saying he believed, as a physician, that the story of Jeff Baumann’s losing his legs as a result of the Marathon bombing, cannot be true. Jeff, sitting up in a wheelchair, would lose so much blood he would die in a few minutes.

Dr Baruja has also said that the blood in the front seat of the police cruiser of Officer Sean Collier, which may be seen as evidence of the shooting death of Collier, is fake blood. It is too orangey in color; real blood turns dark after exposure to the air. The homicide of Collier is one of the 30 counts on which Jahar was found guilty.

Professor James Fetzer, a retired professor of philosophy in Florida, has written a book called “And Nobody Died in Boston Either,” which dispute the claim that three persons watching the Marathon were killed in the blast. (Jahar was convicted of those three deaths.)

The third dissident is an elderly woman with a PhD in Politics who has published many books critical of government and who has been unsparing in her criticism not only of the prosecutorial team at Jahar Tsarnaev’s trial but of the defense team and who has even written that she thinks the leader of that team, Judy Clarke, is mind-controlled.

Before being accepted as an amicus, this third dissident, Mary Maxwell, had stated publicly that she believes the FBI did the bombing. And she petitioned for a Writ of Error Coram Nobis, first to the judge in 2016 and then to the legislature of Massachusetts in 2017, calling attention to the fraudulent nature of the trial.

Also, she petitioned the state Medical Examiner to hold a coronial inquest into the death of Tamerlan Tsarnaev and into the death of John Doe who seems to have stood in the place of Tamerlan during the putative Laurel St shootout of April 19, 2013. Her 2019 book, The Soul of Boston and the Marathon bombing, is freely downloadable here at GumshoeNews.com.

The federal appeals judge, Judge Juan Toruella, could easily have rejected the request of the three dissidents to act as amici, but he did not do so. There is no established right for any person to enter a case as an amicus. I myself have been turned down after submitting an amicus brief to a federal court in Australia.

It is cause for rejoicing that Judge Torruella did not “take the easy way out” – as Attorney Jack Graham has said – by dismissing our request, which he could easily have done.

A discussion of the brief by the group of three amici will be presented in a later part of this “Recover the Law” series.

The Eight Amici

The second group has eight members, one of whom is a retired justice of the Massachusetts Supreme Judicial Court, namely Fernande R.V. Duffly.

The other seven are all attorneys or legal scholars, namely: Robert M Bloom, Mark S Brodin, James Doyle, Daniel S Medwad, Michael Meltsner, Alan Morse, and Christopher Winship.

This group’s amicus brief is solely about moving the venue for trial out of Boston. The amici say that the trial judge, Judge George A O’Toole, Jr,

“made a grievous error in insisting this case be tried in Boston. The multiple violent terrorist acts and their aftermath profoundly affected our friends and neighbors. Holding the trial here asked too much, both of our neighbors, who were called to jury service, and of the voir dire process.”

The “voir dire process” to which they refer is the selection of jurors in which each potential juror is quizzed so as to reveal a prejudice in the case.

They  wrote:

“Sometimes, overwhelmingly violent and traumatic circumstances preclude the reliable assessment of partiality and prejudice. This is particularly so here, at least regarding the sentencing decision the jury would be required to make.”

A Failed Application by Another Group

The National Association of Criminal Defense Lawyers had also filed a proposed amicus brief, just one day before the Group of Eight. Their position is that the jury should have been told of Tamerlan Tsarnaev’s alleged involvement in the Waltham murders that occurred two years before the Marathon bombing.

Judge Torruella did not accept their application as amici. Nevertheless it appears that Jahar’s appellate defense team is pursuing the Waltham story. I can only say “it appears,” since the material in question is still under seal.  There are hundreds of items from Jahar’s original trial, also, that are still under seal, something about which Canadian courtwatcher José Lépine has loudly complained.

Celebrating the Right to a Fair Trial

This article is not a criticism of juries, but is full of praise for the law that makes juries liable to judge a case fairly. How can that be achieved?

The Bill of Rights of the US Constitution makes a statement about criminal trials and about civil trials.

VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

The Group of Eight Amici argue that Jahar was deprived of an impartial jury — as no 12 impartial jurors in Boston could be found, given the nature of the putative terrorist attack.   I will outline here, without particular regard to Jahar’s case, some of the jurisprudence that has resulted from claims that an accused or a litigant did not get a fair trial.

I am taking cases from the Annotated US Constitution, produced by the Congressional Research Service. (This is continuously updated and is accessible at the Legal Information Institute at Cornell University. If you want to see how any clause of the Constitution has been interpreted by the US Supreme Court, go to www.Law.cornell.edu/ancon.

There are two main ways to object to a jury. One is to claim that the members of the jury were not a cross-section of the community. A jury that had 12 women on it may be said to be unfair to an accused man. A jury in a mixed-race county that had only members of the majority race could be said to be unfair to an accused minority member.

Still it is to be noted, per Holland v Illinois 1990, that there is no

“need for a representative jury (which the Constitution does not demand), but for an impartial jury (which it does).”

Rather than look at the particular jury one can challenge the pool from which jurors are taken.  Thus, say the Congressional Researchers,

“…in one case the Court voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service, and, in another it invalidated a state selection system granting women who so requested an automatic exemption from jury service.”

The other way to challenge impartiality, which is referred to by the Group of Eight amici, is to say that jurors were biased by pre-trial publicity.  This could mean that there was a superabundance of news coverage, or that it was presented in a salacious manner, or that it revealed something about the accused, such as his previous convictions that are not allowed to be part of his trial.

As regards that last bit however, it was found in Sheppard v Maxwell 1966 that even exposure to the person’s record could be overcome by a proper voir dire.  That is, the attorneys question a prospective juror to find out if he or she is likely to be able to be impartial even with that knowledge about the accused.

As I said, the attorneys ask the questions but the judge has a supervisory role. There are also Rules of Procedure to follow. Section 606(b)(1) of the Federal Rules of Evidence says, surprisingly:

“During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations….”

Death Penalty and Fair Trial

Neither the Group of Three not the Group of Eight has anything to say about the unfairness of the death penalty. (At last one of those eleven amici, namely, myself, roundly advocates the death penalty. Roundly.) However as a further point about jury selection let us consider the US Supreme Court’s ideas when the death penalty is involved:

“Inquiries into jury basis have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois 1968, the Court held that the exclusion in capital cases of jurors conscientiously scrupled about capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury.”

Needless to say I applaud that idea. I applaud anything that treats jurors as intelligent citizens.  And although the Group of Eight is helping Jahar’s case, thank God, by insisting on a new venue, I personally think 12 Boston jurors could easily have made good decisions, in spite of publicity or even of trauma, as we know our duty. In Witherspoon:

“A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.”

That said, and in spite of my preference for the death penalty to remain on the books (which is neither here nor there, of course), it is worth noting that Massachusetts abolished the death penalty yet this federal case imposed it on a citizen of Cambridge, MA, namely Jahar Tsarnaev.  I note that in another state, that anomaly is currently under criticism.

Finally – for now – let’s note the Fifth Amendment’s promise in an area other than impartiality of the jury:

“The accused shall enjoy the right to have assistance of counsel for his defense.”

That will be the subject of a later Part of this series.