How Secrecy May Uncover A Reason To Move The
Boston Bombing Trial
February 2, 2015 by James Henry
Categories: Boston
Bombing Investigation, Rights,
Threats to
Democracy
The secrecy
has finally gotten thick enough at the Boston
Marathon Bombing trial for someone in the usually unquestioning
establishment media to make a stink about the public’s right to know.
It’s a small stink, but The Boston Globe finally filed
a motion along those lines. The newspaper, in a narrow request, asked U.S.
District Court Judge George O’Toole to give public access to his rulings
on the disqualifications of potential jurors. The paper wants to know how many
have been excused, and why.
What does that mean? It means,
basically, that the judge doesn’t want to reveal anything. In this particular
instance, O’Toole has kept that information from the public. His justification
is that details about which jurors were selected or rejected could potentially
help other prospective jurors figure out how to get onto, or off of, the panel.
The funny thing about O’Toole’s
stinginess with this public information, observers say, is that it may help
undo another hard-and-fast stance of his: his objection to moving
the trial out of Boston.
An
‘Implicit Acknowledgment’
Boston criminal defense attorney David
Duncan said O’Toole has plenty of leeway to protect the integrity of legal
proceedings, particularly in a “widely publicized or sensational” criminal
case. Yet O’Toole’s actions could have an unintended effect, Duncan told WhoWhatWhy:
The judge’s decision to keep
information about who has been struck from the panel in order not to give the
remaining members of the panel ideas how eliminate themselves (or enhance their
chances of getting selected) seems to me to be an implicit acknowledgment that
getting a fair and impartial jury in this district is exceedingly difficult and
maybe not possible, at least within a reasonable timeframe.
That’s an important piece of the puzzle
to understand. Tsarnaev’s lawyers have thrice tried to get O’Toole to move the
trial. He’s shut down every request. In the latest motion, the defense pointed
out that 68
percent of the prospective jurors believe Tsarnaev is guilty.
Move
It or Lose It?
So back to secrecy: things have been
swathed in darkness for so long, The
Globe isn’t even asking for the deliberations over jurors to be made
public. The newspaper only wants the judge’s final decision from those
discussions, and the numbers assigned to the dismissed jurors to be made
public. (Jurors are only identified by a number).
Although the questioning of potential
jurors has been conducted semi-publicly, O’Toole controls the audio-video feed
through which all but two pool reporters observe the proceedings. He
hasn’t been shy about switching it off, nor about sending the pool
reporters out of the courtroom. That has added to a quiet and slowly growing
chorus complaining about the restrictions.
These are just the latest objections.
As far back as July 2013, lawyers for community newspaper publisher Gatehouse
Media wrote
to O’Toole, imploring him to consider the media’s and public’s
Constitutional right to scrutinize legal proceedings. They argued that the
large numbers of sealed motions and secret docket entries impeded that.
The judge doubtlessly has his reasons
for both the secrecy and refusing to move the trial. As a judge subject to
appellate court review, he will eventually have to spell those out. Given the
importance of this case to the greater question of Constitutional rights
in the post-9/11 world, O’Toole’s rulings matter by that yardstick alone.
What’s going to be interesting to watch
is whether the judge’s predilection for secrecy will work against his refusal
to move the trial from a city still traumatized by a gruesome terrorist act.
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