A thing, once heard, cannot be unheard.
Those who don’t believe that have never had a song from a passing car stuck in their head for the rest of the day.
The prosecution, aware of this fact, used it to their advantage during the Tsarnaev trial. Many a witness took the stand only to be asked questions to which the prosecution never expected an answer.
As this charade played out, the defense raised objections. Even when the judge sustained those objections, questioning simply continued in the same manner as the prosecution made repeated attempts to develop certain themes while the court, the hapless witnesses and the jury looked on.
Their goal in the asking was to plant ideas in the jurors’ minds, ideas that would play like an unwanted song in the head during deliberations because a thing, once heard, cannot be unheard.
The Tsarnaev trial was rife with instances where an already-biased jury was subjected to prejudicial information with the judge’s blessing.
While doing research for this blog post, I stumbled upon a murder case from 1992 that happened in, of all places, Boston, Massachusetts. Maybe my discovering it was no accident. I found it interesting enough and relevant enough to include the details here:
Commonwealth vs. Barry J. Kamara
37 Mass. App. Ct. 769
October 7, 1994 – December 30, 1994
In the circumstances of a murder trial, in which a juror’s remarks during deliberation about the defendant’s possible gang affiliation exposed the jury to extraneous matters highly prejudicial to the defendant, inasmuch as no evidence of gang connection or motivation was established and the jury had been instructed to disregard and purge from their minds any reference to gangs, the judge should not have inquired of the jury whether they remained impartial and returned them to deliberations: a new trial was required. (769-773)
On May 16, 1991, Ronald Taylor was shot at close range on Dakota Street in the Dorchester section of Boston. He died shortly thereafter. The defendant was charged with first degree murder. At trial, defense counsel attempted to demonstrate that none of the Commonwealth’s witnesses had been able to identify the defendant with any degree of certainty. Each, for example, had given inconsistent or somewhat vague descriptions of the assailant’s height, clothing or complexion. Several had initially failed to pick the defendant out from a photographic array. The primary defense, thus, was misidentification. Defense counsel also offered an alternate theory of the case (although not until well into trial) that one Eric Brown, who was alleged to have shot the victim in February, 1991, from a vehicle may have been the perpetrator. The defendant’s only witness, a licensed private investigator, posited that Brown lived near Dakota Street where the shooting took place, in the same direction from the point of shooting in which the assailant reportedly fled after the shooting, and that a vehicle fitting the description of the one in the earlier shooting had been found at Brown’s supposed address.
For its part, the Commonwealth repeatedly tried to establish a gang connection to, or motivation for, the shooting. It attempted to do this by showing (1) the victim was afraid of gangs in the area (specifically the Vamp Hill Kings) and (2) that the defendant was a member of or frequently “hung with” gangs. With few exceptions, the defendant’s objections to that line of questioning were sustained. Nevertheless, the assistant district attorney returned time and again to that theme with each witness. No evidence of gang connection or motivation was established, and, accordingly, the Commonwealth was barred from any reference thereto in its closing argument, and the jury was instructed to ignore the subject in its deliberation.
Following the first day of jury deliberations, the jury foreman informed the court of possible misconduct by one of the jurors, who had related certain extraneous information about the defendant to her fellow jurors. After conducting individual voir dire of each juror, the judge dismissed the errant juror and replaced her with an alternate. Upon instructions from the court, the jury began its deliberations anew and arrived at the guilty verdicts for which the defendant has been sentenced.
We are convinced that the juror’s remarks – particularly those concerning the defendant’s possible gang membership – poisoned the jury’s deliberations. The judge had been at some pains to preclude the Commonwealth during its closing from mentioning the words “gang” and “group” and had specifically instructed the jurors to disregard and purge from their minds any reference to gangs or to the defendant’s possible affiliations with gangs.
The central problem here is the jury’s exposure to extraneous matters that were highly prejudicial to the defendant. Hence, Commonwealth v. Fidler, 377 Mass. 192 (1979), and cases that follow it are controlling. The situation here in fact mirrors Fidler, where a juror having personal knowledge, not in evidence, remarked during deliberations that “Fidler had been shot in Charlestown a month earlier” and that “they… almost got him.” It is immaterial under such circumstances whether the extraneous matter was communicated by one of the jurors, as was the case here and in Fidler, or by a third person.
Drawing upon established precedent, the Fidler court held that, once questions are raised about jury exposure to extraneous matters, the judge may query individual jurors to determine whether such matters have in fact found their way into the jury room; but the judge shall not inquire what, if any, influence they may have had on the jury’s deliberation process. Citing Woodward v Leavitt, 107 Mass. 453, 466 (1871); Harrington v Worcester, Leicester & Spencer St. Ry., 157 Mass. 579, 581-583 (1893); Mattox v. United States, 146 U.S. 140 (1892). If the judge finds that extraneous facts have penetrated the jury’s deliberations, the judge “must focus on the probable effect of the extraneous facts on a hypothetical average jury.” Fidler, supra at 201. Cutler v. Cuffie, 414 Mass. 632 (637) 1993).
This is not the process that was followed here. In his voir dire of jurors, the judge determined that the juror had imparted certain knowledge she had about the defendant and about his possible affiliation with gangs. Then he asked each juror whether he or she could still judge the case solely on the evidence and not on the extraneous information. In so doing, he committed error. See Woodward v. Leavitt, 107 Mass. at 466; Commonwealth v. Fidler, 377 Mass. at 201; Fitzpatrick v. Allen, 410 Mass. 791, 795-796 (1991) (There can be no inquiry concerning the actual impact of extraneous matter on the jury.)
Upon determining that highly prejudicial extraneous information concerning the defendant had seeped into the jury room, we think the remedy of a new trial was required – whether the judge applied the test in Commonwealth v. Fidler requiring the Commonwealth to show beyond reasonable doubt that the extraneous matter would not have prejudiced the defendant before a “hypothetical average jury,” 377 Mass. at 201; or held instead that, given the nature of the information, the sitting jury could not “fairly be modeled by a ‘hypothetical average jury.’” Markee v. Biasetti, 410 Mass. 785, 789 (1991).
Throughout the trial, defense counsel scrupulously attempted to avoid and have excluded all testimony concerning “gangs” or “groups.” Over repeated (and sustained) objections, the assistant district attorney continued his efforts to develop the theme. Hence a seed – albeit small – may already have been planted in some jurors’ minds, in spite of the judge’s admonitions, that this crime was gang-related. Without doubt, that seed was watered and fertilized by information concerning the defendant and Eric Brown that the juror improperly related to her fellow jurors. For reasons analogous to those discussed in Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 207-210 (1990) (concerning error in admitting police officer’s testimony on gang activity to establish motive and intent), this information “had a toxic element (that) made an unspoken appeal to fears of gang violence…” and thus gave rise to “(a) doubt… whether the poison might not have infected the (trial).” Id. At 210-211. Stated another way “the extraneous evidence may have (had) a gripping quality and asking the jury to disregard it may be tantamount to asking the jury to ignore that an elephant has walked through the jury box.” Commonwealth v. Flebotte, 34 Mass. App. Ct. 676, 680 (1993) S.C., 417 Mass. 348 (1994).
The judgments are reversed, and the verdicts are set aside.
Given that actual proof of a gang connection was never established, the latitude allowed the assistant district attorney in this regard should be significantly narrower at any retrial. See Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 209-210 (1990).
At trial, defense counsel attempted to demonstrate that none of the Commonwealth’s witnesses had been able to identify the defendant with any degree of certainty.
This was certainly the case in Tsarnaev’s trial as well. Those present at the crime were victims, not witnesses and their testimony reflected as much. One after the other, they gave accounts on the witness stand of what they experienced and suffered without reference of any kind as to whose actions caused that suffering.
Those who took the stand from law enforcement were no more helpful in what their stories added.
Each, for example, had given inconsistent or somewhat vague descriptions of the assailant’s height, clothing or complexion.
Dun Meng told (publicly) so many versions of his story I lost count. He was considered a “star” witness for the prosecution.
Throughout the trial, defense counsel scrupulously attempted to avoid and have excluded all testimony concerning “gangs” or “groups.” Over repeated (and sustained) objections, the assistant district attorney continued his efforts to develop the theme. Hence a seed – albeit small – may already have been planted in some jurors’ minds, in spite of the judge’s admonitions, that this crime was gang-related.
For the above point, simply substitute gang-related with the word “radicalization” as well as all of the “Islamic terrorist” nonsense from Michael Levitt, the expert-that-wasn’t, and you have the problem with the bulk of the prejudicial information presented in the Boston Marathon bombing trial in a nutshell.
And then there’s that video… the one that everyone “thought” they saw thanks to the efforts of the good folks at National Geographic who produced a reenactment. The original video has never been seen for the simple and most-likely reason that it does not exist and the defense was misled before trial to believe otherwise. Thus creating the need for a reputable outfit like National Geographic to agree to produce a reenactment, paying special attention to certain segments, of course.
The jury was already biased going into the trial. That fact was painfully obvious during voir dire. One did not need to hear it from Judge Juan Torruella to know this trial needed to be moved as the guilt of the defendant had already been firmly determined without evidence in the minds of the majority of people in Massachusetts, including and with help from the media.
(concerning error in admitting police officer’s testimony on gang activity to establish motive and intent), this information “had a toxic element (that) made an unspoken appeal to fears of gang violence…” and thus gave rise to “(a) doubt… whether the poison might not have infected the (trial).” Stated another way “the extraneous evidence may have (had) a gripping quality and asking the jury to disregard it may be tantamount to asking the jury to ignore that an elephant has walked through the jury box.”
While the prosecution in the Kamara case may have made an unspoken appeal to fears of gang violence, it can’t be overstated how strenuously the prosecution in the Tsarnaev trial worked, using the Levitt testimony among other things, to appeal with blatant intentionality to America’s fears of everything from ISIS to homegrown terrorism by lone wolves, and our most irrational fears of Muslims in general. Even worse, regarding the mountain of extraneous and highly prejudicial information presented by so-called experts such as Levitt in the Boston Marathon bombing trial, not only was the jury not asked to disregard it, they were instead instructed to swallow it whole when an over-zealous prosecutor gave not one but two closing statements as the outraged defense sat watching and the band played on.
And then there is this:
On March 26, 2015, journalist Anne Stevenson published a very interesting and insightful article in The Huffington Post, which she then updated on May 24, 2015. I offer the following excerpt:
Tuesday was the first day I sat in the same courtroom where Jahar’s trial was taking place. I was immediately taken aback by the heaviness inside the courtroom; it drove home the gravity and seriousness of the situation. There was a palpable sadness and fear in the air, mixed with the detached administrative dissonance of law enforcement.
I can only imagine how right she was about the atmosphere in that courtroom. For that reason, I did not expect the above paragraph to be followed by this next sentence:
In the front row behind the Prosecution are the government’s reserved seats, and in them sat men in suits. At one point, US Marshals asked the suits to reduce the volume of their laughter and banter during the proceedings.
On the right side there are also several rows of victims and their families who are perhaps there seeking answers, closure, and to see things through. They are quiet and never take their eyes off the front of the room. Some have visible disabilities from the bombings, missing limbs, scars.
And here is the tweet that appeared on Twitter when this “scolding” by U.S. Marshals occurred:
Marshals ask suits sitting in govt section to keep it down. No idea what they are laughing at. Victim families sitting behind them. Anne Stevenson
This incident shocks me.
I am glad Anne, as well as some others, chose to tweet about it. Until a few days ago, I hadn’t given it any more thought. When it once again crossed my mind, I began to wonder: in that situation, in that heavy emotional climate, in the presence of those who have suffered so much, in the presence of one presumed innocent until proven guilty who is facing the death penalty if convicted, who behaves like that?
It set me to wondering and then to researching: in what phase of the trial did this occur? Was it on the day of sentencing when it was all over but the shouting, as the saying goes? Though I hoped so, I had a sick feeling this was not the case, and I was correct:
These FBI and DOJ suits were behaving this way during the guilt phase and that could be telling me, telling us, something…
It is a known fact that many arsonists return to the scene of fires they’ve set in order to enjoy the results of their handiwork and feel a secret sense of power and control. Is it possible that masterminds of false flags do the same? Were these men relaxed and jovial due to a shared, secret certainty, even in the guilt phase, as to what the outcome would be for the accused?
We don’t know the names of the men in suits who behaved badly enough in court that day to prompt a reprimand from the U.S. Marshals.
Isn’t it comforting to know that God does?