Tsarnaev Voir Dire: This is my friend Dzhokhar

January 16, 2015

Voir dire (to question) is underway. The video is an interview of Ted Wayman, a former WBZ News anchor in Boston who was summoned for jury duty in the Tsarnaev case and excused because of his substantial job related contacts with Judge O’Toole, federal prosecutors and law enforcement officers who will be testifying at the trial. The interview was conducted by Adam Reilly, a reporter for Greater Boston.

Q: What did you make of his demeanor, when he came in? Were you watching him closely?

A: Everybody, all eyes, once he came in, were on him, like almost gasped within the courtroom. Oh my gosh! That’s the defendant. Uhm, unresponsive. Really uninterested in the whole process. Had very little contact with his defense team. He was sitting in the middle of them. Uhm, really didn’t look at the jury pool. Didn’t look at the media that was there. Didn’t look at the judge when he addressed the defendant. He was uninterested in the whole process.

This is a terrible way for the defense to start jury selection. First impressions matter, a lot, and if I were a member of Dzhokhar Tsarnaev’s defense team, I would be extremely concerned about the ability of the rest of the 200 or so prospective jurors, who witnessed that not-so-grand entry, to be fair and impartial jurors.

Another tell is Wayman’s reference to Dzhokhar as ‘the defendant.’ He’s not thinking of him as a person; he’s thinking of him as a thing. That means he has already decided that Dzhokhar is guilty. Fortunately for the defense, they will not have to use a peremptory challenge to get rid of him.

I always made a point of humanizing my client throughout the trial by referring to him by his first name, touching him, and conversing with him in an effort to provoke a smile. At almost every moment of a trial, at least one juror will be watching the client. Trials are a form of theater. Nonverbal conduct is a form of testimony. Most jurors can detect insincerity. Therefore, the lawyer must avoid scripting the client’s behavior and instead provoke the desired genuine response with the right word or gesture at the right time. This skill is not taught in law school and cannot be found in a book. Yet, if performed at the right time in the right way, it can make the difference between a conviction and an acquittal or a life sentence and a death sentence.

The defense team apparently discovered the problem because reporters observing voir dire today have tweeted that Dzhokhar appears relaxed, engaged with the process and communicating with his attorneys. For example,

O’Ryan Johnson ‏@crimeboston 3h3 hours ago

Dzhokhar shares a laugh at the defense table with Def. Lawyer Miriam Conrad. Tsarnaev wearing open collar shirt, blazer. He’s relaxed,chatty

Jim Armstrong ✔ @JimArmstrongWBZ

I am a pool reporter* for this session of #Tsarnaev jury selection. He just re-entered from lunch, says hello to lawyers by name.

*Today is the second day of voir dire. The reporters were segregated yesterday in a room watching a live feed video of voir dire. Technical difficulties resulted in a change in procedure. Two reporters are now permitted in the courtroom to report on the proceedings. They share their work product with the other reporters outside the courtroom and are replaced by another two reporters and so on per each session.


Dzhokhar Tsarnaev: Opening Statements

January 15, 2015

Thursday, January 15, 2015

Good morning:

I write today about the purpose of an opening statement in a jury trial in a criminal case and distinguish it from a closing argument, which I regard to be considerably less important. Generally speaking, if a defendant’s lawyer has failed to persuade jurors that a reasonable doubt exists before closing arguments, nothing the lawyer says during closing argument is going to prevent a guilty verdict.

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience, jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.


Tsarnaev: To testify or not to testify, that is the question

January 13, 2015

Tuesday, January 13, 2015

Good morning:

The Fifth Amendment provides in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

Dzhokhar Tsarnaev Death Penalty Trial Started Today


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Plea Bargaining in Capital Cases
Tsarnaev: Death penalty cases are won or lost during jury selection


Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

January 9, 2015

Friday, January 9, 2014

Good afternoon:

The first 1200 people summoned for jury service in the Boston Marathon Bombing Case have completed the 28 page juror questionnaire. Prosecution and defense counsel will be busy this weekend reviewing the questionnaires in preparation for voir dire that will start Monday. I believe we can reasonably expect Judge O’Toole will excuse about half of the group for financial hardship due to the length of the trial that is expected to extend into June. Students, teachers, self-employed business owners, single parents with young children and people with prepaid vacations are typically excused.

Several people have asked me to explain coconspirator and accomplice liability under federal law. State prosecutors rarely charge people with conspiracy, so most people don’t know much about it.

A conspiracy is an agreement by two or more people to commit a specific crime and the commission of an overt act by one of them in furtherance of the conspiracy. Often, the overt act is a crime, but it does not have to be. For example, purchasing fireworks is not a crime if you are old enough, but it could be an overt act in furtherance of a conspiracy to build a bomb using the gunpowder in the fireworks. Indeed, overt act 19 alleges that Tamerlan Tsarnaev traveled to Phantom Fireworks in Seabrook, New Hampshire on or about February 6, 2013, where he purchased 48 mortars containing about 8 pounds of low grade gunpowder for use in furtherance of the conspiracy charged in Count 1 (conspiracy to use a weapon of mass destruction resulting in death).

A member of a conspiracy is responsible for all crimes committed by other members of the conspiracy, even if he did not know that the person who committed the crime was a member of the conspiracy or that he was going to commit that crime, so long as it was reasonably foreseeable that some member of the conspiracy would commit that crime.

Mere knowledge of the existence of a conspiracy, or presence at a location where a crime is committed by a member of the conspiracy, is not sufficient to establish guilt and there is no affirmative duty to inform police about the conspiracy.

Federal prosecutors typically structure indictments by charging a conspiracy to commit a specific crime in count 1 and allege any number of overt acts committed in furtherance of the conspiracy alleged in that count. Every member of the alleged conspiracy is accused of committing at least one of the overt acts. Overt acts that constitute crimes are added as separate counts in the indictment.

For example, in Overt Act 31 of Count I, Dzhokhar Tsarnaev is accused of killing MIT Police Officer Sean Collier by shooting him in the head at close range with a Ruger 9mm P95 semiautomatic handgun and attempting to steal his service weapon.

In Count 16 he is charged with possessing and using a firearm during the course of the conspiracy to murder Officer Sean Collier.

The government’s theory regarding the purpose for this shooting is that the Tsarnaev brothers only had one gun (Tamerlan’s Ruger 9mm P95 semiautomatic) and they wanted to obtain a second gun for Dzhokhar, so they sneaked up on him while he was sitting in his patrol vehicle and Tamerlan executed him with a single shot to the head. However, they were unable to get the gun out of the holster.

The government will argue that Dzhokhar is legally responsible for that shooting, even though he did not shoot the officer, because he was a member of the conspiracy and the shooting was an overt act committed by Tamerlan in furtherance of the conspiracy.

The government has a second argument to hold Dzhokhar accountable for the murder based 18 USC 2(a), which provides in pertinent part:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

This is the federal accomplice liability statute by which someone who assists another to commit a crime is as responsible as the person who committed the crime.

I hope this explanation helps readers to understand coconspirator and accomplice liability under federal law.

If we assume for the sake of argument that Dzhokhar Tsarnaev will be convicted on all counts on the basis of his own acts and on the basis of coconspirator and accomplice liability for acts committed by Tamerlan, that does not mean that his arguably lesser role would not result in an LWOP sentence instead of death. A lesser role is a mitigation factor as are his youth and subservient relationship to his brother.

I believe this case probably will boil down to whether one or more members of the jury decide that the evidence in support of those three factors merits an LWOP sentence. That is why I have stated that this case is not about winning or losing. It’s about living or dying.


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


FBI arrests three suspects in Boston Marathon bombing case

May 2, 2013

Thursday, May 2, 2013

Three college friends of Dzhokhar Tsarnaev have been arrested and charged by complaint with federal felony offenses for their conduct after the bombing.

CBS News reported yesterday that,

Azamat Tazhayakov and Dias Kadyrbayev were charged with conspiring to obstruct justice by concealing and destroying evidence. A third man, Robel Phillipos, was charged with lying to investigators about the visit to Tsarnaev’s room.

Azamat Tazhayakov and Dias Kadyrbayev have been accused of going to Tsarnaev’s room on campus after the bombing and removing a laptop computer and a backpack containing fireworks from which the explosive gunpowder had been removed. One of the young men attempted to dispose of the backpack by throwing it in the garbage. FBI agents recovered it from a landfill. They also seized the laptop.

The three young men were in federal court yesterday for their initial appearances.

In a court appearance Wednesday afternoon, Tazhayakov and Kadyrbayev waived bail and agreed to voluntary detention. Their next hearing is scheduled for May 14.

CBS Boston reports that federal Magistrate Judge Marianne Bowler admonished Phillipos in court, telling him to pay attention and not look down during the proceeding.

After the hearing, attorneys for the three spoke to the press briefly.

Harlan Protass, Tazhayakov’s attorney, said his client “feels horrible and was shocked to hear that someone he knew at UMass-Darmouth was involved with the Boston Marathon bombing.”

“[Tazhayakov] has cooperated fully with authorities and looks foward to the truth coming out in the case,” Protass said.

Robert Stahl, Kadyrbayev’s attorney, insisted his client had nothing to do with the bombing and has been cooperating with investigators.

“Mr. Kadyrbayev did not know that those items [reportedly taken from Dzhokhar’s dorm room] were of any evidential value,” Stahl said.

Whether the three young men had any foreknowledge of the bombing and did anything to assist their friend remains to be seen. As I have previously said, complaints in federal felony offenses are used to provide a legal basis to hold people until a grand jury returns an indictment.

The hearing on May 14 will be a preliminary hearing to determine whether probable cause exists to support the charges in the complaint. Magistrate Judge Marianne Bowler will preside over the hearing. An FBI agent will testify for the government regarding the factual basis for probable cause and defense counsel will have an opportunity to cross examine the agent.

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Fred


Police violated the Fourth Amendment in Watertown house to house searches

April 23, 2013

Tuesday, April 23, 2013

Good morning:

We begin today with a history lesson purchased in blood, sweat and tears:

William Pitt declared in Parliament in 1763,

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

The house to house searches by police without search warrants in Watertown violated the Fourth Amendment.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With the exception of a few narrow and well-delineated exceptions that do not apply to the house to house general searches in Watertown, the Fourth Amendment prohibits police searches of residences without a search warrant issued by a neutral and detached magistrate upon reviewing a sworn affidavit and finding that it establishes probable cause to believe that the residence to be searched contains evidence of a particular crime. Both the residence to be searched and the evidence to be sought must be particularly described in the affidavit and the search warrant.

Consent to search is one exception; however, consent must be free and voluntary. Mere acquiescence to authority at the point of a gun is not valid consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968).

Exigent circumstances is another exception. For example, police can lawfully enter a residence without a search warrant, if they are in hot pursuit of a fleeing suspect for whom they have probable cause to arrest or to prevent the destruction of evidence. United States v. Santana, 427 U.S. 38 (1976).

In Santana for example,

Michael Gilletti, an undercover officer with the Philadelphia Narcotics Squad arranged a heroin “buy” with one Patricia McCafferty (from whom he had purchased narcotics before). McCafferty told him it would cost $115 “and we will go down to Mom Santana’s for the dope.”

Gilletti notified his superiors of the impending transaction, recorded the serial numbers of $110 (sic) in marked bills, and went to meet McCafferty at a prearranged location. She got in his car and directed him to drive to 2311 North Fifth Street, which, as she had previously informed him, was respondent Santana’s residence.

McCafferty took the money and went inside the house, stopping briefly to speak to respondent Alejandro who was sitting on the front steps. She came out shortly afterwards and got into the car. Gilletti asked for the heroin; she thereupon extracted from her bra several glassine envelopes containing a brownish-white powder and gave them to him.

Gilletti then stopped the car, displayed his badge, and placed McCafferty under arrest. He told her that the police were going back to 2311 North Fifth Street and that he wanted to know where the money was. She said, “Mom has the money.” At this point Sergeant Pruitt and other officers came up to the car. Gilletti showed them the envelope and said “Mom Santana has the money.” Gilletti then took McCafferty to the police station.

Pruitt and the others then drove approximately two blocks back to 2311 North Fifth Street. They saw Santana standing in the doorway of the house with a brown paper bag in her hand. They pulled up to within 15 feet of Santana and got out of their van, shouting “police,” and displaying their identification. As the officers approached, Santana retreated into the vestibule of her house.

The officers followed through the open door, catching her in the vestibule. As she tried to pull away, the bag tilted and “two bundles of glazed paper packets with a white powder” fell to the floor. Respondent Alejandro tried to make off with the dropped envelopes but was forcibly restrained. When Santana was told to empty her pockets she produced $135, $70 of which could be identified as Gilletti’s marked money. The white powder in the bag was later determined to be heroin.

Santana, at 39-41

Justice Rehnquist wrote the majority opinion upholding the warrantless arrest and seizure of heroin and money from Santana thereby reversing the Third Circuit Court Of Appeals decision. He said,

In United States v. Watson, 423 U. S. 411 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.

While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U. S. 57, 59 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.

The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U. S. 294 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true “hot pursuit,” is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. See Vale v. Louisiana, 399 U. S. 30, 35 (1970). Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified. United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 762-763 (1969).

We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. The judgment of the Court of Appeals is

Reversed.

Santana, at 42-43

The police who conducted the Watertown house to house searches did not apply for search warrants. They did not have probable cause to search any of the houses they searched and they did not find the suspects or any evidence to be used against them. These were general searches which are specifically prohibited by the Fourth Amendment.

Dzhokhar Tsarnaev was ultimately found hiding in a boat outside the area that the police searched. He was discovered by the owner of the boat who promptly notified police. The boat was situated on a trailer parked in the owner’s driveway.

Either we are a nation of laws or we are not.

We cannot claim to be a nation of laws when we break our laws.

________________________________________

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Fred


Who killed Tamerlan Tsarnaev

April 22, 2013

Monday, April 22, 2013

I write today regarding whether Tamerlan Tsarnaev was killed while in police custody, naked, and handcuffed with his hands behind his back. I was not aware of this dispute until I got up this morning and reviewed last night’s comments to yesterday’s post about Dzhokhar Tsarnaev. As all of you probably know, police have identified the two brothers as the Boston Marathon bombers.

Tamerlan (26), now deceased, is the older brother; Dzhokhar (19) is the younger brother. Police arrested him Friday night. They are holding him in a hospital where he is being treated for a gunshot wound to the throat.

Apparently, police have started interrogating him without advising him of his Miranda rights to remain silent and to be represented by counsel, even though he is intubated, medicated and listed in serious condition. This is not a surprise since the Department of Justice announced over the weekend that the interrogation would commence without Miranda warnings pursuant to the public-safety exception to the Miranda rule. I have already explained why I believe that is a bad idea and will not revisit that issue in this post.

Now to the controversy.

Tamerlan was reportedly shot by police during a shootout in which Dzhokhar escaped in a vehicle after running over Tamerlan and dragging him 30 or 40 feet.

Dzhokhar was reportedly driving a vehicle that he and Tamerlan had carjacked.

There is a CNN video that shows a naked male with his hands cuffed behind his back being escorted to and seated in the back seat of a patrol vehicle. That man does not appear to have any injuries and he looks like Tamerlan.

The video was presented here together with a gruesome still photo of a corpse riddled with bullet holes and slashes to the torso. That photograph also looks like Tamerlan.

When viewed together I believe a viewer might reasonably conclude that Tamerlan is displayed in the video and still photograph. If that is true, then it would appear that the police may have murdered Tamerlan.

However, later reports this weekend indicate that the naked man being placed in the back seat of the patrol vehicle was the driver of the vehicle that Tamerlan and Dzhokhar carjacked. If that turns out to be true, then the story was false and should be disregarded.

I lack sufficient information to answer the question I posed in the title, but it’s certainly looking like the viral story is false.

However this turns out, I think it’s important for us to realize how easy it is to fool people with photos and videos. We should already have learned that lesson with the two cell phone photos of the defendant’s face and the back of his head that show injuries not readily apparent in photos taken at the station house a few hours later in decent lighting by a professional photographer with good equipment.

I will end this post with a request. Please do not embed gruesome images in comments. Instead, bracket the link and provide a warning so that viewers will have the opportunity to decide if they want to view the image, which they can do by copying the link and pasting it into their browser.

Carry on.

________________________________________

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

H/T to Ay2Z for embedding this video in the comments:

This video is safe to watch.

EDIT: Looks like the gruesome death photo is being systematically removed from the internet.


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