Judge O’Toole has a job to do.
The truth of the Boston Marathon bombing and its aftermath must remain hidden at all costs. Carmen Ortiz and her merry band of prosecutors must have, and keep, their win.
To help facilitate this, Judge O’Toole must hand down decisions in the case that even a child could see through, making himself look, and sound, like a fool.
So far, he is succeeding.
Judging By Comparisons
When considering the need for a change of venue, the most obvious case to compare to the Tsarnaev trial is the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The first motion by the defense requesting to move the trial was based on this most-obvious comparison.
On April 19, 1995 one-hundred sixty-eight people were killed, including nineteen children in the building’s daycare, and more than 680 others were injured when a massive explosion from a powerful truck bomb targeted the building.
A third of the building was reduced to rubble, half of it collapsing just seconds after the blast. The glass in 258 nearby buildings shattered, 86 cars were burned or destroyed. A total of 324 buildings in a surrounding 16-block radius were also damaged or destroyed.
Oklahoma City was a terrifying place to be that day as the impact was felt far beyond the targeted building. This is the important fact to look for when considering whether an entire population has been affected and thus a trial must be moved to seat an impartial jury.
When Judge O’Toole denied the defense motion he compared the Boston Marathon bombing not to the bombing in Oklahoma City as the defense had done, but to, of all things, the case of Jeffrey Skilling.
The Oklahoma City bombing was mentioned, dismissively, as an afterthought.
Why did he do that?
It is sometimes difficult to know what is in the mind of another and sometimes it is not. I believe the reason for Judge O’Toole’s deliberate failure to compare like cases to be crystal clear.
Jeffrey Skilling is the former CEO of Enron Corporation. In 2001, Skilling helped cause, not the collapse of a building, but that of a corporation wherein the destruction was to jobs and pensions, not lives.
The Enron scandal, revealed in October 2001, eventually led to the bankruptcy of the Enron Corporation, an American energy company based in Houston, Texas, and the de facto dissolution of Arthur Andersen, which was one of the five largest audit and accountancy partnerships in the world. In addition to being the largest bankruptcy reorganization in American history at that time, Enron was cited as the biggest audit failure.
Employees and shareholders received limited returns in lawsuits, despite losing billions in pensions and stock prices.
Skilling received a 24-year prison sentence.
If you fail to see how this crime equates to the Boston Marathon bombing in any other than a because-a-judge-said-so way, you are not alone.
In June 2013, Charles Wilbanks wrote the following for MoneyWatch:
Former Enron CEO Jeffrey Skilling succeeded in getting his prison sentence reduced by 10 years as part of a court-ordered reduction. He could be released as early as 2017.
In seeking to reduce the sentence, the government had emphasized that $40 million in restitution, currently held up as Skilling pursues appeals, would be released to victims.
Sherron Watkins, who as a vice president at Enron first called attention to the energy trading company’s accounting problems, sounded a mixed note about the former CEO. “He’s paid a steep price,” she said, noting that Skilling’s father and son both died during his incarceration and that he was unable to attend their funerals.
Many have suffered this kind of pain and worse, during the time of their incarceration. And they do not walk ten years early with a net worth greater than 40 million.
When I read how Skilling has suffered all I could think is “cue the violins…” As a current “have-not” I guess I have a little trouble working up compassion for the “haves.”
Watkins went on to note that Skilling is in a stronger financial position than many other convicts. While it’s not clear just how much he’s worth, Watkins said he still has enough of the money he made during and even after his tenure at Enron to keep fighting his conviction. “He continues to have the wherewithal to appeal and appeal and appeal,” she said. “That’s why he is getting his day in court today. No lawyer wants to keep fighting someone else’s case.”
“Mr. Skilling will no longer be permitted to challenge his conviction for one of the most notorious frauds in American history, and victims of his crime will finally receive the more than $41 million in restitution they are owed,” a DOJ statement said when the deal was announced.
Skilling’s lawyer, Daniel Petrocelli of O’Melveny & Myers, had heralded the sentence reduction as bringing “certainty and finality to a long and painful process,” adding that the deal would allow Skilling to get back a “meaningful part of his life.”
Skilling began his prison term in December 2006 and has served about six and a half years. Skilling has most recently been housed at a low-security prison in Littleton, Colorado.
Watkins said that while there remains considerable resentment over his role in the fraud at Enron…
I think you get the picture. Enough has been offered here to show there is absolutely no reason to compare the bombing of the Boston Marathon to the collapse of Enron. Yet Judge O’Toole insists this is the case that justifies his decision not to move the Tsarnaev trial.
This is not comparing apples to oranges as they are both fruit. This is comparing a teacup to a giraffe. It is deliberate. It is lunacy. It is insulting to the defense lawyers. It is insulting to not only the victims of the Boston Marathon bombing, but to those of the Oklahoma City bombing as well.
And it is insulting to all of us. Before I tell you why, I must first talk about another case.
In 2002, two men went on a shooting spree in the Washington, DC area that lasted from October 2 until their capture on October 24th. During that time, 10 people were killed and 3 were injured in sniper-style shootings.
The perpetrators became known as the DC Snipers. One has already been executed while the other is serving a life sentence without the possibility of parole.
People were gunned down seemingly out of nowhere while going about their everyday lives: pumping gas, loading the car with groceries, mowing the lawn, walking down the street, and stepping off a school bus – yes, a 13-year-old was one of the victims, shot in the abdomen. Thankfully, this child survived but as a parent, can you imagine getting that call?
Listing the actual names of the places where these sniper attacks occurred presents a picture that is even more chilling. We can easily picture ourselves or our loved ones being there…
Michael’s craft store in Aspen Hill, MD (the only time the snipers missed)
Shopper’s Food Warehouse parking lot, Wheaton, MD
The lawn of a business near Rockville, MD
Gas station parking lot in Aspen Hill, MD area
Post office parking lot near Leisure World Shopping Center
Shell gas station parking lot in Kensington
Georgia Ave., Washington, DC (Victim was simply walking down the street & was shot in the chest)
The bus loop of Benjamin Tasker Middle School in Maryland’s Prince George’s County
A gas station parking lot in Manassas, VA
An Exxon station parking lot just off I-95 near Fredericksburg, VA
A Home Depot parking lot in Falls Church, VA
A Ponderosa Steakhouse parking lot near I-95 in Ashland, VA, 83 miles south of Washington
On the top step of a city bus in Aspen Hill, MD
I remember clearly following this story and how it made me feel, thousands of miles away. I could only imagine the terror. People have to go outside. People have to pump gas, buy groceries, run errands. Kids have to go to school.
People have to live and for three weeks in October 2002, the entire populace in Washington DC and the surrounding area was unable to do so without great fear.
The thought of going through something like that scared me and because it scared me, it also made me angry.
Fear is what infects a potential jury pool more than anger. When a suspect is finally caught and relief replaces the fear, outrage is quickly on its heels. And that level of outrage, supported by having been made deathly afraid, does not go quietly just because a judge asks a potential juror to set aside their feelings and consider the case on facts alone.
It is preposterous to think otherwise. Humans are not wired that way.
What do the DC Sniper shootings, the Oklahoma City bombing and the Boston Marathon bombing have in common that produces widespread fear leading to widespread outrage and certainty of the guilt of the suspect – once identified and caught?
1. Randomness – anyone could have been a victim
2. Suddenness – the shock of surprise
3. Immediacy of injury
4. Severity of injury, including loss of life
5. Harm that cannot be made right; dead is dead, unlike a loss of pension that can be (and in the Skilling case is being) paid back
6. A feeling of helplessness; the world is spinning out of control
7. Law enforcement seems unable to protect and serve
8. Normal, everyday life comes to a standstill
No matter how you slice it, the community reaction in the Skilling case cannot be compared to the community reaction in a case where physical harm and loss of life have occurred in the extreme.
And Judge O’Toole knows this.
So why did he refuse to compare the Oklahoma City bombing to the Boston Marathon bombing?
For one simple reason:
That other trial was moved.
Ortiz and the prosecution wanted a guarantee of victory in the case and death for the defendant. Therefore a change of venue could not be allowed to happen. Carmen Ortiz and the prosecution depended on Judge O’Toole. So far, he has not let them down.
Instead, he has failed his country, his oath, and all of us. Most of all, he has failed the victims. They just don’t know it yet.