The questions most commonly asked during high publicity trials is whether a defendant can get a fair trial and if a fair and impartial jury of one’s peers will determine the outcome. In high publicity trials, such as three going on now in the courts, Aaron Hernandez, Dzhokhar Tsarnaev, (“Boston Bomber”) and the murder case of Chris Kyle (“American Sniper”), those questions become more relevant and difficult to answer. What is required under the Constitution of being a fair trial and an impartial jury is often at odds with what most people think about juries and fair trials.
Aaron Hernandez, a former New England Patriots player, is charged with murder and is being tried near Boston. With the Patriots winning the Super Bowl this year, it is almost a sure bet that most jurors in the Boston area have heard or read about Aaron Hernandez before the trial. Then there’s Dzhokhar Tsarnaev, the Boston Bomber trial. Undoubtedly, every prospective Boston area juror is aware of the person alleged to have caused three deaths and injured hundreds of spectators and runners in the 2013 Boston Marathon. And Chris Kyle is the veteran portrayed in the movie, American Sniper” which is nominated for Best Picture among other notable awards. And Kyle’s alleged murderer is being tried in a small town of 38,000 people, many of whom know and respect Kyle, although he didn’t live there.
None of these cases were moved to another location. And I doubt if it would have mattered much if a removal to other county had taken place. All of these cases share the issue of fairness in the criminal justice system in a high publicity trial where most persons have heard, read or formed an opinion about the case or persons involved in the case. And in cases where there is a racial component involved in either the victim or the defendant, it adds another dimension to the issue of fairness in a high publicity trial.
Nearly everyone comes into court with an opinion on news worthy trials. But the question is not whether prospective jurors or jurors have information or knowledge about a particular case. The relevant question is whether they will be able to set aside what they know about the case or persons involved and render a fair and impartial verdict based solely on the evidence in the case. As long as the prospective juror answers in the affirmative and the judge believes the person is truthful, they are entitled to sit on the jury. It’s that simple. But in reality, it’s not really that simple. Most people cannot remember what they ate a week ago for dinner. But when it comes to upcoming trials that have been sensationalized in the media, nothing is quite as easy to forget. And even if people have not followed the incident in the news, some have occasionally read about the cases, even if as little while reading a magazine in a grocery line. And in asking someone to rewire their brain to forget or only concentrate on the evidence presented at trial is often nearly impossible. Yet, this is what the criminal system expects of jurors.
In the case of Tsarnaev, where jury selection is currently ongoing, many prospective jurors have stated they believe he is guilty but could put aside their opinion and listen to the evidence. Really? It’s doubtful or near impossible if that is possible. And then there’s other jurors who indicate they may have difficulty hearing evidence about the child who was killed—while saying they could be open minded about guilt or judgment of Tsarnaev. And Tsarnaev’s lawyers asked that the case be moved outside of Massachusetts. Even if granted, which is unlikely at this stage, it won’t solve those problems.
And then there’s the often asked question about being tried before a jury of one’s peers. It often comes up in cases involving minority victims or defendants. First, the U.S. Constitution’s requirement of being tried before a jury of one’s peers applies only to the defendant. It is the defendant to whom rights are given under the U.S. Constitution in a criminal case. And in looking at minority defendants, the issue becomes even more important. Often, people wonder how minority defendants are still tried before mostly all white juries on occasions. The law does not state that “peers” means finding jurors who are of the same ethnic, racial background or gender. It means that jurors cannot be excluded for the sole reason of their race or gender. In the cases of Hernandez and Tsarnaev, if no Muslim or Hispanic jurors sit on those juries, both will still have received a trial of one’s peers under the law. Jury selection cannot intentionally exclude persons solely based on race or gender. But courts do not have to ensure that a particular race, ethnicity, age or gender is represented in the jury. The system is not a perfect one.
In mostly white counties, I have tried cases before all white juries where the party I represented is an African American. And I often still wonder if a fair and impartial verdict was rendered based solely on the evidence. The issue of fair trials and impartial jurors is a complex one that is made more complicated in high profile cases.