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We have been discussing the ruling of the United States Court of Appeals for the First Circuit in tossing the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev due to juror bias (as well as reversing some convictions). The ruling is a relatively rare case of a court taking such action.  Criminal defense attorneys, including myself, have long complained that judges talk a good game about fair trials but always seem to find a way of avoiding new trials in the face of even clear juror bias. That was my objection to the Stone trial where Judge Amy Berman Jackson refused to grant a new trial on grounds very similar to those of Tsarnaev, including alleged bias in forepersons in the both cases. While Tsarnaev only got a new sentencing proceeding, Stone should receive an entirely new trial.

With his recent racist remark to a Black radio host, Stone continues to struggle to make himself even less popular than Tsarnaev. I have long been a critic of Stone who admits to being little more than a performance artist and provocateur.  However, he still deserves a fair trial and he did not get one from Judge Jackson.

The similarities between the cases are striking. At issue was the bias of Juror 1261. That is lawyer Tomeka Hart who served as the foreperson on the jury.  Hart is a Democratic activist and critic of the Trump administration. She was the Memphis City Schools board president. Hart has been vocal in public on her views of Trump and his associates. She referred to the President with a hashtag of “klanpresident” and spoke out against “Trump and the white supremacist racists.” She posted about how she and others protested outside a Trump hotel and shouted, “Shame, shame, shame!” When profanities were projected on the Trump hotel, she exclaimed on Jan. 13, 2018, “Gotta love it.” On March 24, 2019, she shared a Facebook post — no longer public — while calling attention to “the numerous indictments, guilty pleas, and convictions of people in 45’s inner-circle.” She also made direct references to Stone, including a retweeted post, in January 2019, from Bakari Sellers, again raising racist associations and stating that “Roger Stone has y’all talking about reviewing use of force guidelines.” She also described Trump supporters such as Stone as racists and Putin cronies.

These statements were not disclosed to counsel or the Court despite various questions that should have prompted such disclosures.  Nevertheless, Jackson refused a new trial, making a mockery out the entire voir dire process.  It turns out that you must disclose such bias so you can be barred from service. But if you don’t, it really does not matter.

It did matter in Boston.

In the 224-page opinion for the appellate panel, Judge O. Rogeriee Thompson noted that George A. O’Toole Jr. denied a request to move the trial out of Boston due to the obvious risk of juror bias but then failed to take necessary takes to protect against such bias. The result were jurors who made comments on social media that raise serious questions over their willingness to be impartial.

Notably, in a striking analogy to the Stone case, this included 22 Twitter posts and retweets by the jury’s forewoman. One referred to Mr. Tsarnaev as “that piece of garbage” but was never disclosed during juror selection.

She was not alone. Another juror went on Twitter on the day of the sentencing to say that Mr. Tsarnaev was “scum” and “trash” and that he belonged in a “dungeon where he will be forgotten about until his time comes.”

Notably, O’Toole struck a juror who was a criminal defense attorney because he  was not “open to the possibility of the death penalty.”  O’Toole based that judgment on his “sense of him” from his answers. However, he failed to explore such bias adequately in other jurors particularly in social media postings.  The First Circuit reaffirmed that “decisions about prospective jurors’ impartiality are for the judge, not for the potential jurors themselves.”

“To repeat what we wrote earlier, the judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part – 65 – because they answered “yes” to the question whether they could decide this high-profile case based on the evidence. The defense warned the judge that asking only general questions like that would wrongly “make()” the potential jurors “judge(s) of their own impartiality” — the exact error that the Patriarca line of cases seeks to prevent. But the judge dismissed the defense’s objection, saying that “(t)o a large extent” jurors must perform that function. Yet by not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint. This was an error of law and so an abuse of discretion.”

The problem has never been the standard for a fair trial. “(T)he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). The problem has been the willingness of federal judges to enforce it, particularly after prolonged and expensive trials.

Reading this opinion, it is impossible not to think of the Stone ruling.  Ultimately, this precedent is not controlling on the D.C. Circuit but will likely be cited as “persuasive authority.” In the age of social media, courts must do a better job in pursuing evidence of juror bias. That was not done in Tsarnaev and it was not done in Stone.

Here is the decision: Tsarnaev Opinion