Dzhokhar Tsarnaev Jury Tampering:

P1010073Cornell University Law School defines Jury Tampering as: “The crime of attempting to influence a jury through any means other than presenting evidence and argument in court . . . .”

18 U.S. Code 1504 is titled “Influencing juror by writing”  It reads: “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing . . ., in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.”

This came to mind when I read an article in the Boston Globe on April 13 about the foreperson of the jury that is in the process of deliberating the fate of Dzhokhar  Tsarnaev. It did not name her but in a rather unusual manner set about to describe all that was known about her and also the answers that she gave to the questions asked of her in court. In answer to one question she said: “I don’t like being the center of attention, . . . ” Despite her preference she is now having been the subject of this article.

The trial is still continuing, as you know, because having found Dzhokhar guilty the jury has to decide whether he is to be executed or spend the rest of his life in prison. This foreperson will lead the jurors in making that decision. I found the write up quite unusual because I don’t think I’ve ever seen a juror picked out for special attention during a trial like this.

Obviously the foreperson will have her attention drawn to the article and will read it. No matter how diffident one is the overwhelming curiosity of being written about on the front page of a newspaper is something the person will want to read. This person going to read about themselves will notice right next to her story is another story dealing with the matter she is about to consider.

It is headlined:”Sister of slain MIT officer opposes death penalty for Tsarnaev.” 

The article read: “In a posting on Facebook and on her Twitter account, Jennifer L. Lemmerman wrote that she continues to mourn the loss of her younger brother.”  She continued on and the last quote attributed to her is: “But I also can’t imagine that killing in response to killing would ever bring me peace or justice. Just my perspective, but enough is enough. I choose to remember Sean for the light that he brought. No more darkness.”

Then the next sentence suggested to me that the juxtaposition of the articles was not a coincidence. It seemed to have been planned. The next sentence after the quote was: “A family spokesman said Lemmerman would not discuss her comments further, and her posting is no longer visible on her Facebook page.” 

It appears that the sister’s remarks were old news and they could have been printed at a time much earlier than the day of their publication; or, if that was not possible, given that the newspaper was planning to write an article about the foreperson, it certainly could have been delayed for a period of time. I wondered the necessity of lining both up next to each other.

The Globe has editorialized against the death penalty for Dzhokhar and filled its pages with statements of people who also oppose it including most of the Congressional delegation as I will write about in a later post, “Saving Terrorist Dzhokhar.” It is hard for me to get away from the idea the Globe was being cute and was trying to influence the foreperson by writing about her and putting next to her story the compelling story of the sister of Sean Collier.

These articles, especially the unusual one about the foreperson and the sister, should make the prosecutors wary about the influence it will have on the jury. I would expect they will raise the issue and ask US District Judge George A. O’Toole Jr. to undertake a further inquiry of the jurors prior to their commencing their deliberations on April 21 whether they have been reading these articles. If so, he will have to determine whether these out-of-court articles against the death penalty have influenced the jurors in their deliberations. It would be tragic if  the Globe in what may have been a subtle intent to influence the jury caused a mistrial and the Dzhokhar case had to be tried over again.

25 thoughts on “Dzhokhar Tsarnaev Jury Tampering:

  1. Matt: I have found Cullen ‘ s hateful obsession with Bulger to be off putting. As of a couple of months ago, Cullen was sitting in his snow – bound home, brooding about the fact that Whitey is treated like a celebrity. Maybe Cullen thinks that writing
    endlessly about Bulger has had nothing to do with the ancient gangster’s celebrity?

  2. I see the Globe has two more bombing pieces in today’s paper — a painfully long feature story about an expert who will testify for the defense and a column by Kevin Cullen Calling for mercy. Getting a public statement from the couple who suffered the worst losses in the bombing was a real coup for the Globe. Their plea for mercy received a lot of national attention. All of this made wonder what Globe’s smaller, more conservative rival has been up to. But all I found in the Herald was a column calling for mercy.

    1. Dan:

      I saw that Cullen had a piece but didn’t read it. The Globe is amazing on how everyone falls in line with the boss. Never a dissenting opinion. As I pointed out you get the story – and editorial – and then the columnists. As for the Herald, they’d be out of business if it weren’t for Howie but even he is losing his edge without Whitey and Billy.

  3. Khalid: I agree with your analysis. An act of mercy would put the U.S. in the best possible light. Dzhokhar will be shipped off to a supermax. Martrdom will not be his fate. Having said all this, I still think there’s A good chance the jury will vote to execute him.

  4. The Tsarnaev trial is a secular auto-de-fe. The moment of catharis will come when the death sentence is passed.
    Dzokar can’t be burned at the stake, or, broken on the wheel, truly spectacular public events, instead, years, possibly, decades after the commission of his crime, he’ll be wheeled out on a gurney, and, put to death like an old dog. Nobody will notice.
    The death sentence is problematic. It could have repercussions overseas. Sparing Tsarnaev would defuse the situation. Muslims would consider it an act of mercy. Dzokar would check-in to ADX Colorado and, never check out.
    It seems like the G put a lot of face behind their efforts to secure a death decision. It might be quite embarrassing, if they don’t prevail

    1. Khalid:

      Don’t agree. If he gets the death penalty he’ll be off the scene in five or six years; if let to live he’ll be around forever.

    1. Henry:

      Read through a little of that document which makes one’s head spin with the many legal statutory references. You are right that the guy in charge of the investigation of the anthrax attacks points out that there was some suspicion but much more evidence exculpating the suspect who killed himself.

      Lambert’s pointed out when he contradicted the FBI’s findings he caused it great embarrassment and as we know from John Connolly’s case when you do that you suffer greatly. Lambert said they could not retaliate against him while he worked for the FBI but right after he left and got the other job as an senior investigator of terrorism for the Dept of Energy they went after him. What I found interesting is that the job Lambert held seemed to be unnecessary since there were other FBI agents not retired who were working side-by-side with him. It sound like one of those created jobs to give a retired agent some more time on the government payroll while taking his pension. The FBI is a political organization adept at covering thing up; remember, no one can ever know what it does since it is responsible to no one.

      1. The problems at the FBI get worse. How many inmates may be set free on this revelation?

        “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

        1. Henry:

          What I found interesting in that article is that what was happening is that FBI agents were committing perjury all over the country and sending guys to prison based on their perjured evidence and no one even seems to mention that. The Crime Lab was supposed to be the crown jewel of the FBI and we see that it was full of guys who traveled around and lied. Everytime you get a peek inside the operation you see rot. Imagine if one could truly look at the way it operates how shocked we would be. It would make the Catholic Church scandal look like kids play.

  5. Afterthought: I don’t think there’s much depth or intensity to public opposition to the death penalty in this case. If he’s sentenced to death, most folks will just shrug their shoulders.

  6. Why wasn’t the Globe prosecuted for releasing Grand Jury testimony in the W. Bulger case?

  7. That’s interesting, Matt. You’ve turn the argument on its head by saying these folks can’t get real closure until this guy is in the ground. I suppose the counter argument is that decades will elapse before that actually happens — if it ever happens. I also think this hot potato will wind up in the hands of the jury. Don’t forget that the prosecutors have, in effect, waged a relentless campaign for death by laying out the horrifying details of this ghastly crime. So I wouldn’ t be surprised if they choose death.

    1. Dan:

      I guess we will just have to see what the jury does. I never thought a MA jury would decide to execute anyone as young as Dzhokhar and still believe that. The prosecutors are intent on getting him executed and as you point out have done a good job of doing that during the liability stage of the trial. I don’t think decades will elapse if he gets executed. Timothy McVeigh was sentenced to die on Junme 2, 1997, and he was executed on June 11, 2001. The last federal execution was Louis J. Jones who was sentence to die on November 3, 1995 and executed on March 18, 2003, and the guy before him named Garza was also executed within 8 years of the sentence. It seems to me that Tsarnaev would be out of the picture in six years, if alive he’ll be around for sixty.

  8. It’s an interesting situation. The Globe is clearly campaigning against the death penalty in this case, and it is doing so with the support of most Boston-area residents, according to the latest poll, which shows only 31 percent want to see Dzhokhar Tsarnaev executed. Today, the Globe put a personal appeal from Bill and Denise Richards on the front page. The couple, who had a son killed and a daughter crippled by the bombers, want Tsarnaev’s life spared. They cite a practical reason: A deal that includes life with no possibility of parole and no possibility of appeal will bring the case to an end, and allow everyone to move on. A companion piece on Tsarnaev’s prosecutor has some interesting information buried in the story. The prosecutor has kicked the decision upstairs to Eric Holder. Sigh. Holder is on record as backing the death penalty in this case, but he is generally regarded as a foe of the death penalty, and he has ordered federal prosecutors not to seek the death penalty in at least one other case. Will he do a 180 in this case? It’s possible. He’s on the way out (provided the GOP Senate ever gets around to approving his much more capable successor.) Holder could take all the heat off the prosecutor and the jury. This is a long way of saying that I think the Globe is trying to influence the Justice Department (whether the newspaper realizes this or not.) I don’t think the newspaper’s efforts will have much impact on the jury. But Eric Holder? Maybe ….

    1. Dan:

      Good comment. I wrote the blog prior to reading the Richards story which like others opposed to the death penalty received front page coverage which the sitting jurors cannot fail to see. I feel bad for the Richard and cannot begin to appreciate the tragedy they suffered. The wife is the daughter of a guy I grew up with. After reading their letter, it was clear to me they want to get on with their lives. They said: “As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.”

      They want the prosecutor to accept Tsarnaev doing life in prison and waiving all his appeal rights. I’m not even sure he would do that. But even if he did, as long as he lives he can decide to seek some type of relief; or, groups will spring up supporting him or seeking his release who will get headline coverage reviving the horror for the Richards family. The only sure way for them to gain the peace they seek is if the defendant is executed for as long as Dzhokhar is alive he will be in the spotlight. I can’t count the number of times I heard the relatives of victims say after a person is executed that finally they have closure and can go on with their lives.

      I didn’t read the companion piece on Ortiz as indicating she recently kicked the decision upstairs. I understood she did that early on and Holder decided for the death penalty. I doubt very much that he will change his mind as he heads back to the private sector. Agree his replacement is much better.

      The Globe is clearly trying to influence the Justice Department but I have no doubt the lawyers who are trying the case will be totally committed to getting that penalty imposed. An indication of that will be whether they ask for a voir dire of the jurors before they begin sitting on the penalty phrase since the Globe has been unrelenting in its articles opposing death to see if any of the jurors have read the articles (I don’t know how they couldn’t if they read the news) and whether it affected them. Aside from that the Globe is also trying to influence the jurors with this daily onslaught of articles against the penalty.

  9. There was an interesting comment from a juror in the AH case. He said how could the defendant know the time of death when no one else did? AH gave a false alibi to two people connected to the Patriots claiming he was at a club at the time of the killing. This false denial is comparable to Torture’s defense in the Epstein child sex ring matter. When the tv reporter asserted the victim was 15. Torture proclaimed she was 19 and denounced her as a prostitute. How could he have known her age ? Torture seems to be as credible as Ms. Jenkins. 2. The FSU co ed Kinsman has filed a lawsuit against Crablegs for sexual assault. Will she prevail? With a fresh complaint, injuries, a dna test and hospital corroboration it would appear likely. 3. There is a simple remedy to Jokers case. Assemble the evidence. Ship it to Bejing. Have China extradite the killer of a Chinese national ( Lingze Liu). Let him face Chinese justice. The American taxpayers won’t have to feed him for the next 50 years.

    1. Nc:

      1. Yes, I noted that earlier about his lying. The jurors said Kraft (and another guy on the Patriots) put him in the jackpot by saying he denied his involvement in the crime by saying he was at a club at the time the crime was committed. The jurors wondered how he knew the time when it wasn’t public knowledge. Kraft also had some other evidence that hurt Hernandez but Garsh kept it out. As for Dershowitz, he’s been strangely silent recently. Perhaps he realizes every time he answers a question he digs himself deeper into a hole.Maybe it was Dershowitz who taught Shayanna how to testify.

      2. I hope she includes FSU in the suit. There’s no doubt she will prevail. It would be nice if he were held accountable for his actions before he turns into another Hernandez.

      3. Doesn’t the U.S. take jurisdiction over crimes committed against American citizens in foreign lands. I don’t see why China could not do the same thing. They would show us a different type of justice system than we are used to seeing. Appeals are handled expeditiously and the executions are not more expensive than the cost of one bullet.

      By the way, speaking of Dershowitz didn’t he say he would not rest until he changed the law whereby he could be accused of a criminal act and not be able to respond to the accusation. Didn’t OJ say the same thing about the murderers of his ex-wife. Perhaps both could get together after OJ gets out and form a search club.


  10. mtc9393:

    18 USC 1504 appears to fit another scenario.

    I had a Title VII civil action in federal court. At one point in the case the US Marshals Service held an ex parte meeting with my attorney. After that meeting my attorney lost his zeal to defend my complaint, leaving me without representation. Of course, I lost on summary judgment because my attorney remained silent even after I asked him three times to object. Accordingly, “failure to object is fatal.”

    After the decision, my lawyer said he would appeal. Despite my requests for him to appeal, he did nothing. I can’t blame him. He was afraid of retaliation. So much for the “rule of law.”

    Does 18 USC 1504 apply in this case?

    1. Douglas

      18 usc 1504 applies only to jurors – you seem to have picked the wrong attorney to represent you if as you suggest he was intimidated by the US Marshalls. Your remedy would seem to lie with the board of bar overseers that protects clients from lawyers who don’t do their jobs. Who was your lawyer afraid of? Why did you use a lawyer who would become afraid in the first place?

      1. mtc9393:

        Not many attorneys take Title VII cases on contingency, which tells you something about my case, which the attorney took on the strength the evidence, the facts and the law.

        Based on my direct knowledge and the evidence I provided to the Board of Bar Overseers regarding government attorney public corruption and criminal conduct, the Board’s decision to remain silent and do nothing was against Rule 3:07. Government corruption in many instances brings big rewards and “watchdogs can turn into attack dogs” if you are not a “team player.”

        Based on my direct knowledge, law facts and evidence mean almost nothing in a “rigged” process.

        As you are an attorney, you should know that there is no legal remedy against crooked decisions. It’s mostly pretend oversight and legal jujitsu.

        So long as the media remains silent concerning the DOJ and the Board’s practices, things will only get worse.

        As for Title VII federal cases concerning the Department of Justice’s participation in well planned discrimination at taxpayer cost of more than a trillion dollars, most of those cases never get to trial. I think you know what that means.

        I provided undisputed, pinpoint evidence to both the FBI and the DOJ regarding pattern and practice discrimination and fraud, waste and abuse. As you know, it is a minimum of five years in federal prison to make false statements to the FBI and the DOJ. Imagine what my 30 page affidavit would bring? My evidence was met with cover up and silence.

        You are a very good writer. Let me know if you would like book material, no strings and no money? I can tell you about real cases that would rock you on your heels.

        Keep up your good columns.

  11. The Tsarnaev Family

    Just a little bit on the sisters, and their latest court dates, here. What exactly do they live on? And why do they stay in this country when they so obviously have no affection for it, for the Infidel laws and customs, for anything at all? The Caucasus is wide and welcoming, and their parents are back in Dagestan. And are so many other Muslim countries where they would be right at home, among people just like themselves. Why must they stay here, where no good can come of their presence? …

    1. Henry:

      Ailaina and Bela probably can’t get off the dole over here; they seem to have perfected the way to survive in the land that they hate in a manner better that they could ever do at home. The whole Tsarnaev arrival in the U.S. and gaining political asylum because they feared to live in their homeland was a scam. The U.S. knew it. They let them go back and forth between here and there. If they feared it why are they going back so often.

      I am assuming both are American citizens and cannot be deported. If they aren’t, they should be put on a plane and flown home. I agree fully that their being here will only lead to more problems. Now that they think the US has killed one brother and imprisoned the other for life (yes, I don’t believe the kid will get the death penalty – too much propaganda in the Globe against it which is designed to affect jurors) then they may be of a mind to try to do something to top what their brothers did.

  12. Matt, thanks for yet another insight into the media’s power to exercise undue influence…and to – most likely – escape any sort of reprimand or other appropriate punishment.

    What would Thomas Jefferson say?

    1. GOK:

      I’m not sure what Tommy would say but I see the beat continues with the family of Martin Richards now coming out against the death penalty. There is no way the jurors will not have been influenced by the Globe’s campaign against the death penalty.

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