Just Another “Term of Art”

There is no one in Boston who believes that Dzhokhar Tsarnaev stands a chance of acquittal for his role in the Boston Marathon bombing, but that hasn’t stopped Judy Clarke, head of his defense team, from doing her job.  But as Judge George O’Toole struggles to find anyone who would qualify as an impartial juror, the ordinary expectations of who would be qualified to sit are coming under attack.

It’s not like this wasn’t anticipated, but Judge O’Toole decided to plow ahead and the parties have to live with the consequences of his foolishness decision.

If Dzhokhar Tsarnaev’s defense team wanted to prove that seating an impartial jury in Massachusetts was an impossible task, it could rest its case now. Over four days, the federal judge George O’Toole has interviewed more than three dozen potential jurors who were not eliminated after filling out a written questionnaire, and only a few have emerged as both apparently impartial and open to the possibility of voting for the death penalty, which they must be in order to be chosen to serve.

For those unaware, federal voir dire usually lacks the depth provided counsel in state cases.  Questioning is done by the judge, who usually, with a jovial disposition, offers such biting challenges to jurors as “and you can certainly be fair, right?”  The potential juror shakes her head, whereupon the judge says, “well, you would certainly make a fine juror. Counsel, any objection?”

If it takes a judge longer than a couple of hours to pick a jury, the other federal judges make fun of him at their weekly ice cream party. It’s humiliating, and usually spells the end of their chances for appointment to the Supreme Court.

Tsarnaev, however, presents challenges that defy the norm, largely because every person in Boston already believes he’s guilty, even if they struggle with whether he should be put to death.  As his lawyer, Judy Clarke sees that as a problem.

If jurors cannot be expected to believe that Tsarnaev is innocent, there is the question of what the “presumption of innocence” means. On the third day of the voir dire, an argument erupted between the defense and the prosecution about this basic issue. Judy Clarke, one of the defense attorneys, said that the questioning was conflating the presumption of innocence with the concept of burden of proof, and assuming that it was enough for a prospective juror to understand that it was the government’s duty to show that Tsarnaev was guilty.

The presumption of innocence and the burden of proof may be best described as two sides of the same coin.  While it has long been a strain to make people understand and appreciate that every defendant is, in fact and law, innocent until convicted, and remains innocent, in fact and law, if he is acquitted or his conviction is reversed, one would expect a United States District Court judge, not to mention a prosecutor, to be capable of grasping this nuanced detail.  And one would be wrong:

The judge sided with the prosecution, saying that “presumption of innocence” is “a term of art” that does not actually mean presuming the innocence of a defendant.

Did he just do that?  Did Judge O’Toole just concede every defense lawyer’s worst nightmare, that the “presumption of innocence” is just a mash of words that gets uttered in a courtroom without having any actual meaning?

That the public gives lip service to the presumption of innocence has long been a matter of grave concern.  Indeed, even commenters here and at other defense blawgs tend to be all for the presumption, until it touches upon an offense they personally find particularly disturbing, whereupon they couldn’t give a damn.  This has been notably true when it comes to rape and sexual assault, and yet they don’t seem to struggle too mightily with any cognitive dissonance.

When it comes to citizens who aren’t necessarily inclined to hold such matters as the presumption of innocence in high esteem, such as the jury pool in a Boston courtroom, the importance of making it absolutely clear that the presumption of innocence is both real, substantive and at the core of a criminal trial is manifest.

While it may well be true that the phrase is a “term of art,” in the sense that it’s used as a shorthand to explain a legal concept, that doesn’t mean the phrase is either meaningless or inconsequential.  There isn’t much point to who has the burden of proof, or what that burden may be, if jurors enter a trial believing that the defendant is guilty.

But the biggest problem with the jury pool seems to be that, in Massachusetts, everyone knows someone who was affected by the bombing. One potential juror works for a major sponsor of the marathon and was involved in organizing security for the company’s executives there. Another is a friend of a first responder who ended up on the cover of Time. Several work at hospitals that cared for the wounded, and many of the jurors have a friend or a relative who was at the marathon at the timing of the bombing. One woman broke down crying when she was asked about her personal relationship to the bombing; she lives in the same neighborhood as the family of the eight-year-old boy who was killed, and she walks past the makeshift memorial for him regularly.

When the defense moved for a change of venue, for the trial to be held away from Boston so that there would some chance, some small chance, that they could select jurors who might not have formed an opinion as to Tsarnaev’s guilt, it was well-anticipated that every potential juror in the City of Boston would know everything he needed to know about the bombing.  But then, the fact that the bombing touches the lives of pretty much everyone in the city was similarly anticipated.  Judge O’Toole didn’t seem to think this would be a problem.

But what was not anticipated was that Judge O’Toole didn’t think enough of the presumption of innocence to actually demand acceptance of it from potential jurors.  Maybe he missed the day when they taught it at Harvard Law School.  Maybe he just forgot about in the 43 years since.  Maybe he just doesn’t think Dzhokhar Tsarnaev deserves it.  Or maybe he just wants to get a jury selected after his misguided denial of the change of venue motion, and since something has to give, it might as well be the defendant’s right to the presumption of innocence.

H/T Jim Tyre

24 thoughts on “Just Another “Term of Art”

  1. A"non"-Juror

    I was in a federal jury pool once and your description of the judge questioning the jurors with “a jovial disposition” is dead on. I even remember the judge cracking a couple of small jokes (notably, because I was seated in the front row and could see them clearly, the defendant and his lawyer didn’t laugh along).

    The thing that struck me as odd, was that of the supposedly random pool of roughly 70 potential jurors, almost half of them were all current or retired teachers. We were all asked individually the same 3 questions: what are occupation was, our level of education, and whether we or anyone in our family was in law enforcement. I work in a pharmaceutical lab doing both research work and some manufacturing, and I ended up being the only person with a scientific background after listening to everybody’s answers. The case itself was against someone the DEA had caught and had said they would be providing DEA forensic analysts and chemists to provide testimony about the physical drug evidence they were presenting. I was kind of excited because that kind of information (chemical analysis) is the kind of stuff I look at, sometimes on a daily basis.

    When it came time to select the jurors, I think the two lawyers went up and talked to the judge for only 2-3 minutes (we couldn’t hear what was said). We were seated numerically by our assigned juror number (I was number 5 or 6, so in the front row, if each bench sat about 10 people). The first 14 jurors by sequential number, except for me, were chosen to sit on the actual jury. About 9-10 were teachers, another 2 were homemakers, and I forget the rest.

    Being a non-lawyer, teevee and movies have taught us that the lawyers will always be extremely picky to ensure that they are getting the juror most likely to be favorable to their client (be it the defendant or the government), but in this case, it seemed like they just took the very first people on their list. I speculate that I was rejected because I’d potentially be able to look at any technical/scientific evidence with some actual amount of professional competence, but I was very surprised that most of the jurors were teachers. Would teachers, acting as jurors, for a case of a 19-20 yo guy caught trafficking drugs be more sympathetic for a defendant that maybe just went “astray” or more “tsk-tsking” (and a leaning towards guilty) that you would expect to get from a teacher as if you were still in their classroom and had done wrong? Are these types of jurors more useful to the defense or the prosecution? Or are they useful to both, just depending on the charges? I’m asking this because it seems to me that if teachers in general would disapprove of somebody (who could easily have been one of their student years earlier) trafficking illegal drugs, then the government is almost ensuring they are seating a jury that will deliver the verdict they want.

    As an aside, the charges were all based around and worded as “a substance that tested positive for cocaine” but never simply as “cocaine.” Is this just the legal terminology used to encompass everything from 100.0% cocaine down to anything at the lowest detectable level, or is this a separate charge from having actual (as in pure enough that it will induce a high in a user) cocaine? I’m not a lawyer, but I do have to perform regulatory compliance for my job so I understand that within the law/government, words and phrases have specific meaning and definitions that may not always comport to the way language is commonly used or understood. My second favorite statistic in the world (after the infamous 1 in 5 statistic regularly mentioned here, of course) is that 9 out of 10 dollar bills in the US test positive for an illegal substance (which is also how in some cases cash has been seized, by having a K9 “alert” on the money itself). Technically, though almost certainly perhaps not legally, that would mean there’s a high probability that anybody in that courtroom that day with cash in their wallets or purses could be subjected to the same charge, “possession of a substance that tests positive for cocaine.”

    1. SHG Post author

      Ordinarily, I would trash your comment, both because it’s off-topic and, more importantly, it’s a very lengthy war story about a subject with which lawyers (this is a law blog, obviously) are familiar. We’ve heard your story a few million times.

      But it’s a good one, and you told it well, so what the hey. As for your question, it’s possible that they decided not to use a peremptory challenge before they got to you, so you were too far back in the pack. Or it’s possible that the prosecution didn’t want anyone on the jury who might question its chemist. Who knows? There are a few possible reasons, but we can only speculate.

      As for “tested positive for cocaine,” there are two primary possibilities: it was low quality coke (lots of cut, very little active cocaine) or it was an analogue. Otherwise, no particular reason to be so circumspect about it. Since drugs are measured in the aggregate, a smidge of coke makes it all legally coke. Jurors may not like that, but that’s the law.

      1. A"non"-Juror

        Sorry for the length, only realized it after I had hit post. I have been trying to take to heart your earlier admonition not to comment unless it may be mildly interesting to lawyers, and so probably got a little excited when I finally maybe had something somewhat relevant to add (or so I thought) to the discussion of this particular jury selection and the constitutional implications arising from it (this latter point being something I don’t have an anecdote for and for which I was off-topic).

        Duly noted for any future comments (this was my first).

        1. SHG Post author

          But it was a very well written story. Just trying to keep the zillion war stories (lawyer love to tell their war stories) from clogging the works like they used to in the old days of SJ.

  2. JohnC

    “The judge sided with the prosecution, saying that ‘presumption of innocence’ is ‘a term of art’ that does not actually mean presuming the innocence of a defendant.”
    (A) Why would anyone take a media account (even from the New Yorker) at face value?
    (B) In any case, how can that statement be a surprise?:
    “It is now generally recognized that the ‘presumption of innocence’ is an inaccurate, shorthand description of the right of the accused to remain inactive and secure, until the prosecution has taken up its burden and presented evidence and effected persuasion ….” Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (quoting 9 J. WIGMORE, A Treatise On The Anglo American System Of Evidence In Trials At Common Law § 2511, at 407 (3d ed. 1940)).

    1. SHG Post author

      The problem with taking a sentence out of context is that it frequently mislead. The next sentence:

      The principal inaccuracy is the fact that it is not technically a “presumption” – a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an “assumption” that is indulged in the absence of contrary evidence.

      This is a hypertechnical distinction (bearing on the definition of the word “presumption”) that changes nothing in the analysis here, yet your quoted sentence without the following sentence serves only to make people stupider.

      As to using the content of the New Yorker, because we’re constrained to accept credible sources or we would be incapable of commenting on events as they happen. In a case like this, should we wait until the transcript is publicly available (assuming the transcript will ultimately be transcribed and is accurate) when the case goes up on appeal? In a couple of years?

      1. J.P.

        That’s a fine distinction, but I’m tempted to ask: so what? In either case, “indulg[ing]” the presumption wouldn’t seem to require anyone’s subjective belief that it is actually true. We can assume things as a matter of reasoning without belief.

        It seems to me the defense attorney is arguing that there’s something more to the presumption than the mandatory assumption you point out. When the judge says the presumption is a term of art, isn’t he just countering the defense attorney’s argument that he (the judge) is conflating the presumption of innocence with the prosecution’s burden of proof?

        Also, I agree with JohnC about the New Yorker account. I’m not even sure what the defense attorney’s argument is from the account, the prosecution’s argument isn’t presented at all, and the quote of the judge is edited in a way that gives me real pause about taking it at face value—notably “that does not actually mean presuming the innocence of a defendant” are Masha Gessen’s words, not the judge’s .

        1. SHG Post author

          In either case, “indulg[ing]” the presumption wouldn’t seem to require anyone’s subjective belief that it is actually true.

          That’s always the case. So? There is never a way to guarantee that jurors actually believe what they’re told, but we still try to instill the correct legal principles because most jurors want to be good and fair jurors, and most people really don’t understand legal principles.

          What’s the alternative? Throw up our hands and say screw it? What’s the point of your comment? That the system sucks so we should give up?

          Similarly, JohnC’s and you doubt about the New Yorker article gets nowhere. Unless I limit my discussion to only things I personally observed, I (and anyone else writing about the case who isn’t personally present) must rely on what others say. It may be imperfect, but that’s the best there is. So, should no one write anything if they’re not there? Should we ignore everything we don’t personally observe?

          Should a judge putatively saying something like this go unmentioned or unnoticed because somebody who calls himself “J.P.” on the internet is given “real pause” on what happened? If it turns out to be wrong, then it can be corrected, but the notion that it should be ignored because some unknown random guy on the internet has questions is idiocy.

          1. J.P.

            I don’t disagree about instilling correct legal principles. How has the judge thrown up his hands and given up? If the defense attorney is right and the judge is “conflating the presumption of innocence with the concept of burden of proof” then the judge isn’t claiming anything other than what the note in Taylor says. To the contrary, it appears to be the defense attorney who is claiming that the presumption means something else.

            Of course, again, we have no idea what “siding with the prosecution” means or what the judge said beyond that the presumption is “a term of art” because it wasn’t reported. Really, we don’t even know what the defense was arguing for. It feels like you and Gessen are making a mountain out of a molehill. Absent a little more evidence about what was actually said and argued, what’s the point of getting bent out of shape about it? Just because it confirms “every defense lawyer’s worst nightmare,” whether or not it’s actually true?

            I don’t make any claim that the questions matter because they’re mine. If they matter at all as questions on their own merits then it doesn’t matter who I am.

            1. SHG Post author

              As I tried to explain to JohnC, his quoted line didn’t mean what he thought it meant, and in fact was just the opposite. You can’t pull a sentence out of context. And another non-lawyer making the same ignorant mistake doesn’t change its meaning. It just perpetuates the error and, to any other non-lawyer reading it, contributes to their stupidity.

              His comment, and yours, remind me why I shouldn’t let non-lawyers comment, as they make people stupider. Do you wonder why lawyers understand the issue, but you don’t? Do you wonder why lawyers comprehend the problem, yet you don’t even get the problem?

              JohnC’s quoted sentence is not the law. If you want to understand, go do law school. I should have deleted your comment, but instead I posted it and responded. You, in turn, make everyone who reads your comments stupider. It will not happen again. I write this to let you know, but will shortly delete your comments so no other non-lawyer is made stupider by having read them.

            2. J.P.

              I was referring to the full note, not JohnC’s incomplete quote. I am a law student close to graduation.

              How is characterizing the presumption as an assumption based on the fact that we hold it without having to infer it from some piece of evidence meaningful (in contradistinction to the usual presumption that requires the introduction of some kind of evidence) at all here? You yourself say it’s a “hypertechnical distinction (bearing on the definition of the word “presumption”) that changes nothing in the analysis here.” In either case, as you put it, the presumption and the prosecution’s burden of proof “are two sides of the same coin.” If the judge is conflating the two—as the defense attorney contends—isn’t he saying the same thing you are? If not, how is it different?

            3. SHG Post author

              It’s functionally irrelevant whether we call it the presumption of innocence or the assumption of innocence, and to the extent the former is simply what it’s always been called, then it’s a “term of art” as it’s not technically a presumption. This is the sort of crap that is meaningless to practitioners. So the judge found it interesting and put it into his opinion. It changes nothing. That’s why I call it a hypertechnical distinction. It may be rhetorically accurate, but who cares? The presumption of innocence is still a critical concept in law, and a core premise of criminal justice. Did you miss that day in criminal law class in law school?

              While the presumption and burden of proof are two sides of the same coin, that doesn’t mean both don’t exist. At the outset of trial, the presumption of innocence is dominant. Without the presumption of innocence, the burden of proof is diminished. At the close of trial, the burden of proof becomes the issue. Each is important and complements the other, but they exist together and separately. Each must be independently stated, so that the presumption of innocence is fixed as the baseline before consideration of whether the evidence satisfies the burden of proof.

              This is basic stuff, and your questions are really unfathomable from a law student. I strongly urge you to seek a JD advantage job when the time comes.

            4. Myles

              It occurs to me that J.P. is either a total moron, one of those law review asshole types who wants to argue to the death about some meaningless inane nuance or is just trolling you.

              Regardless, this can’t be worth your time, and certainly isn’t of interest to anyone who practices law. Why bother with this nonsense?

            5. SHG Post author

              I’m just too much of a softie sometimes. I should have just deleted his comments to prevent him from making people stupider. My fault. But it’s done now.

            6. J.P.

              Thanks for the explanation. I see what you’re worried about now.

              I’ll pass on JD advantage though, I’ve got good work lined up for after graduation. We unfortunately don’t have the benefit of year-long crim law courses in the first year (or year-long anything). We just get one semester, which is almost entirely substantive rather than procedural. Even Crim Pro adjudication never distinguished the two as nicely as you have. It is worrisome that a good student at a good school (and both are true) could go without catching this, because if I didn’t, I know most of my classmates haven’t.

            7. J.P.

              It was largely a class about statutory interpretation—figuring out how to read state criminal statutes based on the common law background and contrasted with the MPC approach to things. After the introduction (theories of punishment, a little procedure, the basic elements of all crimes [actus reus, mens rea, causation, concurrence of the elements, and attendant circumstances]), we did a few substantive crimes (mainly murder and its variations) and affirmative defenses and and then concentrated on accomplice liability, attempts, and conspiracy.

  3. Terrapin

    Wow. That has to be prejudicial error. If the circuit in which I practice (the 4th) were to permit such a conflation and combine it with its standing disapproval of instructing jurors on the meaning of “beyond a reasonable doubt” (because any definition is likely to confuse the jury) , what’s left of the figleaf of the “enormous burden” the government must bear? He wouldn’t be there next to defense counsel if he wasn’t guilty. Unreal.

    1. SHG Post author

      It’s funny, this got me thinking (for the thousandth time) about the instructions for BRD (which I agree are horrible and confusing), and I pondered whether giving an example of “the level of certainty one would require to remove a spouse, child or parent from life support.” I suppose it wouldn’t be viable, since some wouldn’t do so under any circumstances, but it struck me as pretty good example to make the point.

      Or, as the instruction goes in Boston, “whatever.”

      1. Jeff Gamso

        True story. We were trying a capital case. It was the end of the day, and the only ones who hadn’t yet packed up and left the courtroom were lead counsel, me, and a member of the judge’s staff. I said to the other lawyer, “you know, in the right case I’d want to tell the jury that you have to be sure enough to be willing to pull the plug on your mother. But this,” I added, “sure isn’t the right case.”

        The staff guy just heard me say the tell the jury part, missed the fact that it was a passing thought. He told the judge that he’d heard me say the judge was required to tell the jury they had to be as sure as they’d need to be to pull the plug on mom. Judge had his staff attorney spend the night looking for my authority. The next morning, I had to assure the judge that there was none. His staff attorney was relieved that he hadn’t missed some Supreme Court case.

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