Trials that draw widespread public attention present a special challenge for the judges, prosecutors and defense lawyers. That is especially true today when so much information is so widely published on so many different public platforms.
The fundamental challenge—to empanel a fair, open-minded jury even when potential jurors have been exposed to prejudicial information—materializes in concrete form today in arguments in one of the most closely watched cases of the U.S. Supreme Court term.
The case involves the United States’ prosecution of the Boston Marathon bomber, Dzhokhar Tsarnaev. A federal appellate court vacated Tsarnaev’s death sentence for committing the 2013 bombing that killed three people and left more than 200 injured, some with horrific, permanent trauma and wounds.
The appellate court in United States v. Tsarnaev ruled the trial judge erred in his approach to ferreting out potential juror bias. Whether that ruling is correct is one of two questions that the Supreme Court has been asked to decide. It is the question with perhaps the most significance for future high publicity trials and the essential fairness of those trials.
The usual tool for exposing possible bias in potential jurors is known as voir dire. The term comes from the French and literally means “to speak the truth,” although it sometimes is interpreted to mean “to see, to speak.” But in trial lingo, it simply means to question potential jurors and find in their answers whether any biases or other aspects of their lives may disqualify them from serving as jurors.
Chief Justice John Marshall is given credit by most historians with being the first to recognize an impartial jury was required by the Constitution and common law. They point to Marshall’s statement to that effect in 1807 in United States v. Aaron Burr in which Burr was tried for treason.
There is no question that the marathon bombing, the subsequent search for the bombers-- Tsarnaev and his older brother-- and the arrest of Tsarnaev, attracted enormous media coverage at home and abroad. The trial judge rejected Tsarnaev’s requests to move the trial location because he was convinced he could empanel a fair jury. The judge set about doing so with a pool of 1,300 potential jurors.
The people in the pool completed a 100-question questionnaire on their backgrounds, exposure to publicity about the bombing, opinions about Tsarnaev and his guilt, views on the death penalty, and whether they could decide guilt and punishment based on the evidence. The pool was narrowed to 256 people and then each of those potential jurors was questioned in voir dire that took a total of 21 days.
But what the trial judge did not do—and what the federal appellate court ruled was error—was to allow the defense to ask each potential juror so-called content-specific questions: what that individual had read, heard, or seen about the bombing and the events following it.
In the Supreme Court, the government relies heavily on a 1991 decision by the justices-- Mu’Min v.Virginia—to argue there was no error committed by the trial court because there was no constitutional requirement to ask content-specific questions during voir dire.
In the 1991 decision, the justices said federal judges have broad discretion to decide what should be asked during voir dire. The Sixth Amendment, they added, does not require specific questions about a potential juror’s exposure to pretrial publicity. But the justices also said that those types of questions could be helpful and federal appellate courts can use their supervisory power to set standards for voir dire.
Setting the standard for voir dire in high-publicity cases was exactly what the federal appellate court in the Tsarnaev case had done in 1968 in the case Patriarca v. United States. In that case, the U.S. Court of Appeals for the First Circuit said that where there is a significant possibility that jurors have been exposed to potentially prejudicial information, the judge, if requested by counsel, “should proceed to examine each prospective juror apart from other jurors and prospective jurors, with a view to eliciting the kind and degree of his exposure to the case or the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change from evidence.”
In the Patriarca decision, the appellate court added it was endorsing an American Bar Association standard for voir dire in cases with prejudicial pretrial publicity. That standard states that questioning “shall be conducted for the purpose of determining what the prospective juror has read and heard about the case.”
In ruling for Tsarnaev, the appellate court said the trial judge “fell short” on nine of the 12 seated jurors.
“So asking them only ‘whether they had read anything that might influence their opinion’ does not suffice, for that question ‘in no way elicits what, if anything,’ they have ‘learned, but lets them decide for themselves the ultimate question whether what they [have] learned had prejudiced them,’” the court said.
Tsarnaev’s lawyers in the Supreme Court rely heavily on the Patriarca decision as well as the Mu’Min decision, which also said federal courts could set standards for voir dire, and that content-specific types of questions could be helpful.
The federal appellate court in the Tsarnaev case is not the only federal appellate court to require content-specific questioning in highly publicized trials. Several others do and some don’t.
The challenge for the justices is not just to work through the facts of jury questioning in Tsarnaev’s trial and to resolve the competing voir dire arguments for future trials, but to do this while cognizant of today’s pervasive news and social media environment.
For Tsarnaev, even if he wins his voir dire challenge in the Supreme Court, he faces a resentencing trial and could receive the death penalty again. With multiple life sentences already imposed and upheld, he will at the very least never emerge from prison.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
