Richard Kaplan Quoted in Law360 article “Boston Bomber Case Offers Clues For Trump Jury Selection”

Analysis

Boston Bomber Case Offers Clues For Trump Jury Selection

By Chris Villani

Law360 (April 2, 2024, 4:12 PM EDT) -- A recent ruling that may undo the Boston Marathon bomber's death sentence holds lessons for Donald Trump's upcoming trials, where attorneys will need to make prospective jurors comfortable enough to admit bias before they're picked — and potentially avoid years of appellate fights.

More than a decade after the fatal attack and eight-plus years removed from the trial, the First Circuit ruled March 21 that more fact finding is needed to see whether two of the jurors who sentenced Dzhokhar Tsarnaev to death lied about social media posts that may have shown they were biased.

In one instance, a juror did not tell lawyers about Facebook posts by friends who said at the start of jury selection that Tsarnaev has "got no shot in hell" if the juror was seated and urging him to "play the part so u get on the jury then send him to jail where he will be taken care of."

In the second instance, the jury foreperson reposted numerous messages on Twitter, now called X, about the April 2013 attack and subsequent manhunt for Tsarnaev and his brother, including a tweet congratulating law enforcement "who worked so hard and went through hell to bring in that piece of garbage."

Experts told Law360 that many of the same facets of the Tsarnaev jury selection process, from having to winnow down a massive pool that will likely number over 1,000 people to combing through social media posts, will apply in Donald Trump's upcoming jury trials, including the one slated to begin in New York later this month. The hush-money case will be the first of Trump's four criminal prosecutions to go to trial, and the verdict will have major ramifications for the 2024 presidential race, heightening concerns about bias.

In addition to dealing with so-called stealth jurors who may lie or conceal information to get themselves on the panel, attorneys will need to put prospective jurors in a mindset in which they are able to identify and admit to not being impartial.

"I always tell lawyers during voir dire, 'you have to make jurors comfortable,''' said Alan Turkheimer of Trial Methods, a litigation consulting company specializing in jury selection.

"You're not cross-examining a witness; you're having a conversation," Turkheimer said. "The best way lawyers can help jurors reveal their bias is to normalize it and say 'you're not a bad person if you posted something negative about the president.'''

Turkheimer said it is also important to get jurors in the mindset of thinking not just about their present feelings, but also about anything they might have said or posted over the past several years. In the case of the Boston bomber jury foreperson, her retweets were more than 2 years old by the time the trial began.

Robert Hirschhorn of Cathy Bennett & Associates Inc., a trial and jury consultant who worked on high profile matters such as the Oklahoma City bombing and the George Zimmerman murder cases, said that picking a jury in such a high-stakes, high-profile case is a "very slow, and painful, and necessary process, when done correctly."

Mistakes are made when people rush, Hirschhorn said, and even the 21 court days spent on individual voir dire in Tsarnaev may not have been enough, according to the First Circuit.

"I know that it took, by federal standards, a long time to pick that jury. I know that. But that's not the criteria," Hischhorn said. "The criteria is, 'have we given jurors every opportunity to express on the outside what they are feeling on the inside?'"

In Tsarnaev, the First Circuit said in its 2-1 ruling that jurors may not have had that opportunity. The majority noted that defense lawyers flagged the social media posts in question after the two jurors had been provisionally qualified to serve, but before they were actually seated.

U.S. District Judge George A. O'Toole declined to interview the prospective jurors about the social media to see whether, in the words of U.S. Circuit Judge William J. Kayatta, the jurors didn't mention them because they misunderstood the questions asked about their social media habits, simply forgot about them, or because they wanted to get on the jury.

But the panel said that it was not on the lawyers to flag the potential problem before the jurors were provisionally qualified.

"In these circumstances involving over one thousand potential jurors of whom hundreds were selected for voir dire in a death penalty case, we do not think it reasonable to require defense counsel to thoroughly investigate each prospective juror's social media prior to voir dire where, as here, the juror's questionnaire responses indicate that the juror has not commented about this case online," Judge Kayatta wrote.

In the trial of Terry Nichols, convicted in the Oklahoma City bombing, Hirschhorn said that individual voir dire proceeded at a snail's pace, with no more than three or four prospective jurors examined in the morning and three or four more in the afternoon. All the while, the presiding judge constantly reassured the jurors that it was OK to be honest.

"That's when you get answers to start with, 'well, to be honest with ya,'" Hirschhorn said. "That's how you know that you are doing it right."

In assessing the overall fairness of the jury pool, Trump will likely not be able to base a potential appeal on casting Manhattan as a deep blue Democratic stronghold that would never be able to give him a fair shake. In the Tsarnaev ruling, the First Circuit rejected his arguments that the trial should have taken place somewhere other than Boston, which felt the direct impact of the attack on one of its most beloved sporting traditions.

Nor is it enough to point out the extreme amount of pretrial publicity the case has received, another failed Tsarnaev argument. Pointing to the U.S. Supreme Court's landmark decision in Skilling v. United States , a 2010 ruling in the case of former Enron CEO Jeffrey Skilling, the First Circuit noted that "[p]rominence does not necessarily produce prejudice, and juror impartiality ... does not require ignorance."

Plus, the claim of a biased general public could cut Trump's way in one of his other criminal trials, the Georgia case over his alleged interference in the 2020 election, said Peach State litigator Madeline Summerville.

"Atlanta is generally blue, but Fulton County and the folks who try cases in Fulton County know the surrounding areas are very heavily Republican-leaning," Summerville said. "Every third juror could be a Republican, so I don't think he would totally get away with saying the general public is biased."

Regardless of party affiliation, Richard Kaplan of Kaplan Marino PC, a white collar criminal defense attorney, said that it will be up to the lawyers to be imaginative when crafting questions meant to ferret out bias.

"You used to ask jurors, 'do you have bumper stickers?' and 'what do they say?' Sometimes you ask what newspapers they subscribe to," Kaplan said. "Now you might ask, 'where do you get your news? Do you get your news from Facebook, from CNN, from Fox, from The Wall Street Journal.' Just kind of getting at their sources of information might help you to understand whether they might be biased."

How much latitude the judge provides will also be critical, Kaplan said.

"Courts may not let you get into party affiliation, so maybe you ask the question: 'have you ever put a yard sign up for a candidate?'" he said. "Does the judge then let you have the next question of 'who is that candidate?' Judges might say no on that one."

"You've got to get creative," Kaplan added. "There is no 'one size fits all' approach."

--Editing by Nick Petruncio.

 

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