Masha Gessen is a Russian-American journalist and the author of seven books. Her book on the Boston marathon bombers, “The Brothers: The Road to an American Tragedy,” will be published in April. She will be covering the Boston Marathon bombing trial for The Washington Post.
The Boston press corps is frustrated with the U.S. District Court in Boston.
Compared to the U.S. Supreme Court or to courts in many other countries, the federal court has never seemed particularly accessible to journalists – no video or audio recording or photography of the proceedings is ever allowed, and transcripts are quite difficult to get. But local court reporters say they have never faced the sorts of restrictions imposed by Judge George O’Toole in the case of Dzhokhar Tsarnaev, the suspected Boston Marathon bomber. The bulk of the filings in the case are under seal – including at least one defense motion that was excerpted at length by the Boston Globe before the judge sealed it last week – and reporters are excluded from seeing or hearing much of the courtroom discussion that would customarily be public.
The trial is in the voir dire stage, the individual interview part of selecting a jury. On Wednesday, the Boston Globe filed a motion requesting public – which is to say, media – access to some of the challenges made to juror candidacies by the lawyers on either side and the judge’s rulings on these challenges. Some of the process is obvious: Several times a day, the judge will cut an interview short because it is clear the juror cannot be seated. This happens in one of two situations. If a juror is so obviously dead-set on voting for the death penalty or, conversely, if a juror is unequivocally opposed to the death penalty, both sides may agree on the spot that the person cannot meaningfully participate in the penalty phase of the trial. (In capital punishment cases, it is the jury that decides whether a defendant who has been found guilty is to be executed).
Over the last couple of weeks of voir dire the prosecution and the defense have worked out a system for signaling to each other and then to the judge that they agree the person is unsuitable for jury and that the interview can be cut short. Sometimes, it is obvious that serving on the jury would pose an extraordinary hardship. One juror last week said that his employer had agreed to pay him for three days of his jury service. After he was allowed to leave the courtroom, defense attorney David Bruck quipped, “It will probably take longer than that.” The judge originally projected that the trial would last three to four months, but at this point jury selection has been going on for more than three weeks and is nowhere near completion.
The court has interviewed 98 people so far, and it would appear that most of them cannot serve on the jury, either because they hold strong beliefs about Tsarnaev’s guilt or about the death penalty. Each side has 23 peremptory challenges, meaning it can exclude that many people from the final jury pool without explanation; this means that in order to seat 18 people (12 voting members and six alternates), the court has to settle on at least 64 suitable candidates at the end of voir dire. The court has averaged 15 people a day, but we don’t know how many of those have been cleared for the next round; those decisions are made in camera at the end of each day. If the Globe’s motion is granted, we would learn how far the process has advanced.
In open court, Judge O’Toole has said that he doesn’t want to tell jurors directly that they have been excused because he doesn’t want to “coach” other candidates on how to get out of jury duty in this case. That may be part of the reason he has closed the afternoon discussions to the press – though he has not explained this decision. Nor has he explained the decision to exclude journalists physically from the courtroom.
On the first day of voir dire, the ban was total; reporters crowded into two smaller courtrooms and watched the proceedings through a video link. The link proved unreliable, with either the video or the sound, and sometimes both, disappearing at various times. The camera was placed so high up behind the juror that reporters could only occasionally glimpse a bald pate or a full head of gray hair while the juror was sitting down. The reporters complained loudly.
By the following day the court had laid new cable and moved the camera. Now reporters could tell that all but one or two of the jury candidates were white and the majority were middle-aged. But the journalists questioned the restrictions themselves — after all, even during last year’s trial of notorious Boston gangster Whitey Bulger on the same floor of the same courthouse, the courtroom was full of reporters for the voir dire.
On day three, proceedings began an hour late because the judge was apparently considering the press corps’ complaints. Now two pool reporters would be allowed into the courtroom. Since then, the number has been negotiated up to three, and the journalists are also gradually eating away at the amount of time the court spends with the microphones turned off; with every passing day, the media can hear a little more of the banter. Still, no one has been able to hear any of the chats that go on between Tsarnaev and public defender Miriam Conrad, who sits to his right. These conversations are the rare moments when the defendant does not look bored verging on absent. He appears to joke with Conrad, and she appears to find his remarks very funny.