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On Judge O'Toole's Stubborn Reluctance To Moving the Boston Bomber Trial

Yishai Schwartz
Tuesday, February 10, 2015, 4:00 PM
Jury selection in the trial of  accused Boston Marathon bomber Dzhokhar Tsarnaev has dragged on for over a month. Since January 5, over 150 potential jurors have been questioned, and still the judge proceeds haltingly through a pool filled with preconceptions about Tsarnaev’s guilt and fury at what the bombing’s perpetrators.

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Jury selection in the trial of  accused Boston Marathon bomber Dzhokhar Tsarnaev has dragged on for over a month. Since January 5, over 150 potential jurors have been questioned, and still the judge proceeds haltingly through a pool filled with preconceptions about Tsarnaev’s guilt and fury at what the bombing’s perpetrators. But despite these challenges, and a flurry of protests from commentators and pundits, Judge George O’Toole has now turned down three requests from the defense to move the trial elsewhere. The Tsarnaev lawyers’ arguments in favor of changing venue is simple: Residents of the Boston-area have been so saturated with news about the marathon bombing, are so close to the event and know so many participants that “prejudice must be presumed.” In order to avoid that prejudiced jury pool, insists the defense, the judge ought to relocate the trial to a place less directly affected. In response, the prosecution and now Judge O’Toole himself, has repeatedly pushed back, insisting that the pool is diverse and that careful questioning can successfully produce enough unbiased witnesses. On its face, the debate is simply an empirical disagreement about biases in a jury pool. But underlying that disagreement is a deeper tension, one that goes back to the very first juries, about the reasons for local trials and justifications for transferring proceedings. Local juries have been a fixture of English criminal proceedings since the Middle Ages. But for much of their early history, their role was vastly different from the impartial triers of fact that we are familiar with today. As James Fitzjames Stephen wrote in his 1883 “A History of the Criminal Law of England,” early juries were composed of “twelve men of the vicinage who swore before the justices that such a person was guilty or not,” In essence, these early juries served as “witnesses rather than judges.” The requirement that they be local (“of the vicinage”) was inextricably linked to this earlier function: They were the local observers who were presumed to know the parties and what had happened, and were expected to swear accordingly. Over time, juries transformed into fact-finding bodies, but still, the principle of localism remained relevant. As Blackstone explains: “by the policy of the ancient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration. . . for, living in the neighbourhood, they ... were supposed to know beforehand the characters of the parties and witnesses, and therefore the better knew what credit to give to the facts alleged in evidence.” It seems, then, that the early requirement for trial by local juries was fundamentally about procuring the most accurate result, and direct knowledge of the context and parties was seen as a benefit, not a harm. In time, however, the obvious flaws of juries who “were supposed to know beforehand the characters of the parties” became apparent. Blackstone continues: “But this convenience was overballanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of the right.” Eventually the law was adjusted to this reality, mandating only that a jury “come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood.” Nevertheless, that early English preference for a local and knowledgeable jury would reemerge powerfully in the American context. In the lead-up to ratification, Abraham Holmes, a delegate at the Massachusetts ratification debate warned against trial by “a jury of strangers,” instead insisting that a fair trial could only be one “in the vicinity where the fact was committed where a jury of the peers would, from their local situation, have an opportunity to form a judgment of the character of the person charged with the crime, and also to judge of the credibility of the witnesses.”  These concerns were eventually enshrined in the Constitution itself: Article 3 Section 2 mandates that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed,” and the Sixth Amendment establishes that “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.” In the American Constitution, however, the ancient English principle was given a distinctly American flavor and appeared in a particularly American context. The constitutional provisions--certainly the Sixth Amendment---framed the necessity of local trials as a right of the accused. Indeed, the historical evidence indicates that both constitutional provisions largely sprang from deep revolutionary anger over freedoms denied when King George brought Americans to England for trial---the right to a sympathetic jury of one’s countrymen, a speedy trial with easy access to witnesses, and a local support system for the defendant. But they also reflected a second revolutionary frustration, anger at provisions in the “Intolerable Acts” that permitted Royal officers to be whisked off to England to stand trial for crimes committed in America. As a federal court ruled in the case of United States v. Dubon Otero, when denying a request for change of venue: “The early history of our nation evinces the fact that the Colonists believed in the concept that ‘the community which had suffered injury should be allowed to judge those charged with the injury’… To this day, the interest of a community in trying those who violate its laws remains a central tenet of our judicial system. As such, change of venue motions are granted very rarely, only in extreme situations.” The origins of the mandate for a local venue, thus cut two very different ways in contemporary cases. On the one hand, the mandate reflects a tradition that sees the requirement for a local jury as a fundamental right of the accused, and therefore, presumably waivable at his discretion. Yet at the same time, the preference for local trials also represents a more ancient, substantive judgement that a local population’s connection to a crime makes it more--not less--likely to render a just verdict. In this tradition, it is the interests of the community, rather than just that of the defendant, that is protected. And the interests of the community are served not simply by seating a jury knowledgeable of a crime’s context and the actors, but that also represents the political community whose norms have been shattered. Unsurprisingly, the government emphasized this second tradition in its briefs opposing a change in venue for Dzhokhar Tsarnaev. Today, the conflict between these two underlying values remains largely unresolved. Under the federal rules of criminal procedure, a court  “must transfer” proceedings only if the court is satisfied that the “so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” This is a very high standard, and as the prosecution in the Tsarnaev case is quick to point out, the Supreme Court has made it “nearly impossible” to second-guess a trial judge’s decision that it hasn’t been met.  At the same time, the same rules of criminal procedure also hold that a court “may transfer” proceedings largely at his discretion: “for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” So while appellate courts will patrol the outer limits of fair-play, it is up to the individual trial judge to balance the interests of community and defendant, and to determine whether a population’s proximity is a boon or a barrier to justice. In terrorism cases like Boston bombing, the tension between these underlying values--both inherent in the historical preference for local trials--becomes particularly strong. On the one hand, whole cities, and sometimes the entire country, feel victimized. Public rage is stoked, and much of the local population feels connected, proximate and implicated. But even as the potential for bias is heightened, so is a community’s interest in serving justice to those who have attacked it. After all, in the US, crimes are tried as crimes against the state, not against another individual. The jury that sits in judgement is not just a jury of the defendant’s peers, but a panel of citizens, tasked with defending the state’s norms and channeling its values. A juror that feels too close cannot judge impartially, but one that feels too distant does not judge justly. It is that realization, perhaps, that lies beneath Judge O’Toole’s stubborn decision to soldier on with another week of voir dire in Boston.

Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.

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