Why a Rhode Is­land mob­ster may save a Bos­ton bomber’s life

National Post (National Edition) - - ISSUES & IDEAS - COLBY COSH Na­tional Post Twit­ter.com/Col­byCosh

On Fri­day, the United States First Cir­cuit Court of Ap­peals va­cated the death sen­tence re­ceived in 2015 by Dzhokhar Tsar­naev, the sur­viv­ing mem­ber of the duo who per­pe­trated the 2013 Bos­ton Marathon bomb­ing and the spree of gun­play and rob­bery that fol­lowed. Tsar­naev had ad­mit­ted his in­volve­ment in the bomb­ing, so the “guilt phase” of his ini­tial trial was not af­fected. His lawyers suc­ceeded, how­ever, in con­vinc­ing the ap­peals panel that the judge had not been care­ful enough about jury se­lec­tion.

If the Jus­tice De­part­ment wants Tsar­naev to face the nee­dle, it will have to ap­peal up­wards or go for a do-over of the “penalty phase.” The ap­peals court up­held two dozen con­vic­tions car­ry­ing life sen­tences, so no mat­ter what hap­pens, Tsar­naev will re­main in su­per-secure fed­eral cus­tody for the rest of his life. In­deed, the au­thor of the ap­pel­late de­ci­sion, Judge Rogeriee Thomp­son, em­pha­sizes this al­most to the point of cel­e­brat­ing it.

But what specif­i­cally was the mis­take that the trial judge made? It goes back to 1960s Bos­ton mob his­tory, be­lieve it or not. Although, as the mafia his­tory buffs would be quick to let me know if I didn’t men­tion it, the “Bos­ton mob” of that pe­riod was con­trolled in Prov­i­dence, Rhode Is­land

The key case that in­spired the Tsar­naev rul­ing is Pa­tri­arca v. United States, heard in 1968 by the same First Cir­cuit court. Ray­mond Pa­tri­arca (1908-1984) is said to have run or­ga­nized crime in New Eng­land from a vend­ing-ma­chine com­pany office in Prov­i­dence. In 1967 one of his cronies went to the grand jury with a tale of con­spir­acy and mur­der. The snitch’s un­happy lawyer, John Fitzger­ald, soon had a bomb go off in his face when he started his car. (Fitzger­ald lived to tell the tale, mi­nus a leg, and de­cided to put some miles be­tween him­self and Mas­sachusetts, found­ing a fam­ily dy­nasty of lawyers in South Dakota.)

Pa­tri­arca’s coun­sel, with a brazen­ness you may have thought was only found in fic­tion, tried to have the venue of Pa­tri­arca’s trial changed be­cause of the un­favourable pub­lic­ity sur­round­ing the car bomb. When that didn’t work, the capo’s lawyers asked the judge to ask the ju­rors whether they had been in­flu­enced by (ad­mit­tedly nu­mer­ous) news re­ports iden­ti­fy­ing the de­fen­dant as a Cosa Nos­tra boss.

(In U.S. law, ex­am­i­na­tion of ju­rors takes place dur­ing the “voir dire” process, which pre­cedes the trial. In Com­mon­wealth le­gal jar­gon, “voir dire” is prac­ti­cally the antonym of this: it refers to hear­ings of ev­i­den­tiary or pro­ce­dural is­sues within tri­als, ones that take place with the jury ab­sent.)

They weren’t so fussy about this sort of thing in the ’60s, so the judge in the Pa­tri­arca trial just got the jury to­gether in the box and asked them di­rectly: “Is there any mem­ber of the jury here who feels that he would not be able to give the de­fen­dants a fair and im­par­tial trial?” Bueller? Bueller? No­body piped up, so the trial went ahead (to a con­vic­tion).

The ’60s ver­sion of the First Cir­cuit court thought, as you might think, that this was a fairly use­less ges­ture. They de­cided that it wasn’t a re­versible er­ror, but “Pa­tri­arca,” the name of New Eng­land’s pre-em­i­nent mob­ster, also be­came the by-name of a se­quence of cases es­tab­lish­ing prin­ci­ples for voir dire. (Frankly, I won­der if the whole thing wasn’t just a mis­un­der­stand­ing re­sult­ing from an in­cred­i­bly on-the-nose sur­name.)

The Pa­tri­arca ap­peal court es­tab­lished what be­came a firm rule of U.S. law. In high-pro­file crim­i­nal cases pre­ceded by a great deal of pub­lic­ity, judges should “ex­am­ine each prospec­tive ju­ror,” in­di­vid­u­ally and separately, “with a view to elic­it­ing the kind and de­gree of his ex­po­sure to the case or the par­ties.” It is thought es­pe­cially im­por­tant that ju­rors aren’t left to de­cide for them­selves whether they can act im­par­tially, be­cause, well, pretty much ev­ery­one on earth thinks he can. So that re­spon­si­bil­ity be­longs to the judge. He can­not avoid it or take short­cuts.

In 2020, the Pa­tri­arca rules are highly evolved. The trial of Dzhokhar Tsar­naev pro­vided them with the tough­est test imag­in­able. Like his mafioso fore­run­ner, Tsar­naev un­suc­cess­fully sought to change the venue of the trial to any­where on earth but Bos­ton. The judge, Ge­orge O’Toole Jr., de­clined.

But this, in the ap­peal court’s view, made Tsar­naev’s en­ti­tle­ment to a strong and de­tailed voir dire all the more im­por­tant. Some of the news re­ports that ap­peared in the media dur­ing and after the man­hunt for Tsar­naev con­tained facts or quo­ta­tions that would be in­ad­mis­si­ble at trial. (Most no­tably, there was some ma­te­rial cribbed from an il­le­gal in­ter­view that po­lice held with Tsar­naev in hos­pi­tal after they shot and cap­tured him. He got no “Mi­randa warn­ing” about his rights and his re­peated pleas for a lawyer were, for a while, ig­nored.)

So the judge had a duty to ques­tion prospec­tive ju­rors closely. Judge O’Toole did make some Pa­tri­arca ef­forts: the jury pool had been given ques­tion­naires ask­ing them “what news­pa­pers, ra­dio pro­grams and tele­vi­sion pro­grams they viewed and with what fre­quency, as well as how much media cov­er­age they had seen about the case.” But there was not much fol­lowup.

A ma­jor­ity of the ju­rors who were even­tu­ally sworn in said in voir dire that they were news con­sumers, and ad­mit­ted that they be­lieved Tsar­naev to be guilty, but at­tested that they were con­fi­dent they could clear their minds and give the ter­ror­ist a fair trial. Tsar­naev’s lawyers, ob­vi­ously con­scious of the Pa­tri­arca is­sue, had asked the judge to con­sider deeper “con­tent-spe­cific” ques­tions about what ju­rors had read or heard. This was deemed im­prac­ti­cal — an er­ror which doomed the trial.

And, after all, a hu­man life is at stake. In U.S. cap­i­tal cases, ev­ery prin­ci­ple of due process is in­evitably given the ut­most re­stric­tive­ness, turn­ing ap­pel­late law into some­thing os­si­fied and al­most in­hu­man in its in­tri­ca­cies — more like Hab­s­burg royal court eti­quette than healthy crim­i­nal jus­tice. That is the price, or one of the many prices, that the Amer­i­can repub­lic pays for pre­serv­ing the ul­ti­mate le­gal penalty.

HE GOT NO ‘MI­RANDA WARN­ING’ ABOUT HIS RIGHTS.

U.S. AT­TOR­NEY’S OFFICE IN BOS­TON / HAND­OUT VIA REUTERS / FILES

Con­victed Bos­ton bomber Dzhokhar Tsar­naev will re­main in su­per-secure fed­eral cus­tody for the rest of his life.

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