Tsarnaev Judge Had Illegal Tête-à-tête with Jurors

by Cheryl Dean

I have just read the newly released transcript of motion 1247-1, filed on April 7, 2015 by the defense. Here is my comment to Judge O’Toole:

Judge, I can see why you never unsealed it before. Your ex-parte “jury colloquy” is outrageous and damning!

I’ve been following all of the pre-trial status conferences and have read the filed motions that were public. So I’ve known from the beginning that you were extremely biased.  Your rulings sided with the prosecution almost every time, over a range of issues.

You stacked the deck for the prosecution, preparing for your sought-after death penalty outcome for Dzhokhar (“Jahar”) Tsarnaev.

Now, the people of Boston and the whole world have tangible proof that you also tampered with the jury.

Here are some of your prejudicial words to the jurors when you met with them, after the jury was empaneled, on March 3, 2015 with no attorneys present:

“You and I are in this together. We’re on the same side here. Our side is justice. Our job is to be as fair and impartial as we possibly can, and I know you all can do it because I have seen jurors over the years do exactly this. So that’s really all I have to say except, finally the Supreme Court of the United States has a very interesting tradition. Before they go out on the bench to hear argument and before they conference a case, they all shake hands with each other, and I thought we’d do that because we’re now teammates. I’m going to go around and you can do it. (The judge shakes hands with the jurors) We’ll see you bright and early and start our project.” [emphasis added]

Your intention was to have no one at all present as you spoke in private to the jurors, but when Dzhokhar’s defense team objected, you agreed to allow the court reporter to be present. That is how we, luckily, have this too-hot-to-touch piece of evidence in the huge bag of 600, previously sealed — now released, documents.

Your meeting with jurors is grounds for a mistrial. Indeed the defense had asked for this in response to your meeting with the jurors. You put the defense’s request itself under seal! Unbelievable!

You not only did a grievous injustice to Dzhokhar Tsarnaev, you also harmed so many ordinary people. People who had never had any dealings with a court of law. People who were keen to follow the trial, but who soon found out that what was being called justice in this case, did not in any way resemble the justice system they used to know.

It was illegal for you to have any ex parte communications with the jurors. The First Circuit court held in 1981 in United States v Flaherty, that “ex parte communications between the judge and jury create a presumption of prejudice and violate both Federal Rule of Criminal Procedure 43(a) and the sixth amendment.”

How could you refer to yourself and the jurors as being on a team. Surely you “the learned judge” know that a jury is not a “team“!

The judge and jurors have distinctly different roles and are certainly not a “team.” The judge and jury are not “teammates,” are not “in this together,” and are not starting a “project.” That is, unless you consider trying to procure a death sentence through bias and prejudice, for a 21-year-old a “project.” You shock me!

But I was far more shocked by the words you uttered at the sentencing phase of this case.

June 24, 2015 was sentencing day for Dzhokhar Tsarnaev. You and your “teammates” could now bask in the death-sentence result of your “project.” Your team had won.  This is what you said to the jurors on that seemingly happy and proud occasion for you:

“I take this occasion again to thank the now-former jurors for their exceptional service….

Their careful verdict satisfies me that they did what they were asked to do. Theirs was not the only possible verdict, but it is certainly a rational one on the evidence.”

You call their decision a rational one? based on “evidence”? What evidence? A few grainy, tampered-with videos that don’t identify any cop-killers, and show no one dropping a black backpack, the lack of any fingerprints of the defendant on the bombs or anything else, the lack of “radicalization” in any text or tweet Jahar ever wrote?

That is a hollow meaningless remark, Mr. O’Toole (I can’t bring myself to say “Judge.”  Pardon me, I am over-the-top with anger.)

“That they performed their duty so well and faithfully came as no surprise to me. I’ve been presiding over jury trials in this state for more than 30 years, and I know how seriously Massachusetts jurors take the responsibilities of jury service. I had no doubt that we could select a jury for this case that would accept and perform their high duty conscientiously and justly.”

“Select” a jury? I can’t believe you admit to that!

You also said “The proof [of the jury’s excellence] is in the pudding.”

The proof in this pudding, is that you met alone with the jury and made sure you got them on your “side,” conducted a sham trial and ensured the jurors would vote just the way you wanted them too.

This is what you had to say to Dzhokhar:

“One of Shakespeare’s characters observes: “The evil that men do lives after them. The good is oft interred with their bones.” So it will be for Dzhokhar Tsarnaev.”

So it will be for you, Judge O’Toole, not for an innocent young man. The corruption that you perpetrated at this sham trial in your quest to have a 21-year-old killed, that is what will live long after you. That will be your legacy.

You said to the convicted Dzhokhar:

“Whenever your name is mentioned, what will be remembered is the evil you have done. No one will remember that your teachers were fond of you. No one will mention that your friends found you funny and fun to be with. No one will say you were a talented athlete or that you displayed compassion in being a Best Buddy or that you showed more respect to your women friends than your male peers did.”

I don’t know whom you think you are speaking for here, maybe for your arrogant self, the media and the people of Boston? Don’t ever think that you are speaking for decent people in the US and around the world.  Dzhokhar will be remembered for the good he did in his life, for being a peaceful, loving person, who was heinously condemned to death by a corrupt trial.

You said:

“What will be remembered is that you murdered and maimed innocent people and that you did it willfully and intentionally. You did it on purpose.”

What will be remembered about you, Mr. O’Toole, is that you conspired with others to conduct a corrupt trial and that you did it willfully and intentionally. You did it on purpose.

You referred to Shakespeare’s tragedy Othello, in which the evil Iago tries to justify his malice. You noted that in Verdi’s opera Otello, Iago sings “Credo in un Dio crudel,” “I believe in a cruel god.”

You said:

“Surely someone who believes that God smiles on and rewards the deliberate killing and maiming of innocents believes in a cruel god. That is not, it cannot be, the god of Islam. Anyone who has been led to believe otherwise has been maliciously and willfully deceived.”

Well said, just as you Mr. O’Toole, have maliciously and willfully deceived those who sought justice in this case.

You feel so victorious over this case, but it’s far from over.  It’s just beginning, and thank God, the rest of it will be without you. This motion, highlighting your ex-parte colloquy will be sent to every lawyer and judge in Boston, and every media outlet as well. I wonder what your peers and others will think of you?

Finally, I want to scream about the ‘festivity’ that surrounded the sentencing of Jahar. The jury handed in their vote on May 15, 2015, but the judge – whose name I can’t even bear to say anymore – picked June 24 as the day of the sentencing! I suppose that was so he could plan his theatrics.

One of the theatrics reflects back on his mateship with the jurors. (I wonder if he did this to cover his arse in case the still-secret-meeting he had with them would come out in the wash — as indeed it has!)

Here is what What’s His Name said at the “show” on June 24^th:

“First, I want to acknowledge the presence of a number of the jurors and alternates who participated in the trial of this case. They are here at my invitation. It is my practice, after a verdict in every criminal trial, to talk informally with the discharged jurors, principally to thank them again personally for their service. It is my habit on such occasions to invite them to return to attend the sentencing hearing, and sometimes they do.

“Consistent with that practice, I extended a similar invitation to the jurors in this case to attend. As you can see, many of them accepted and are here. Because so many were interested and because we have limited public seating in the courtroom, as a courtesy and as a gesture of respect for their service, I authorized them to sit in the jury box.

“I do want to emphasize, of course, that they are present now simply as members of the public. They are no longer a jury, but a group of citizens who are here, each in his or her individual capacity. Nonetheless, I take this occasion again to thank the now-former jurors for their exceptional service. [Emphasis, of course, added]

The Boston Globe – God forgive them – reported:

“Tsarnaev becomes the first terrorist condemned to death by a jury in the United States in the post-9/11 world. The unanimous verdict brought to a close a legal drama that has unfolded on the South Boston waterfront since January, with searing testimony about the bombings that killed three, took the limbs of 17 others, and injured hundreds more. Throughout the proceedings, the lanky 21-year-old showed no remorse.”

US Attorney Carmen M. Ortiz told reporters shortly after the verdict was announced, “Our thoughts should now turn away from the Tsarnaev brothers for good.”

Hold on, Madame Prosecutor, just a minute there!  Some of us are definitely not turning our thoughts away from the Tsarnaev brothers.

— Cheryl Dean thanks Wiseowl and Josée Lépine for calling her attention to the jury colloquy business. In her heart of hearts she also thanks What’s His Name for carrying his judicial misbehavior to such an extreme as to assure a complete backfiring.