Can Dzhokhar Tsarnaev, the surviving Boston Marathon bombing suspect, get a fair trial in Boston? It’s a profound question, but one that the Framers would have found incomprehensible.
Far from providing for a change of venue in high-profile cases, they guaranteed that the accused deserved a trial “by an impartial jury of the State and district wherein the crime shall have been committed.”
So what is the origin of the modern idea that the accused can seek to be tried elsewhere? The answer lies in England, and particularly in the lurid murder trial of William Palmer, the so-called prince of poisoners, which took place in 1855, fully 66 years after the Sixth Amendment was ratified.
Palmer was a piece of work – the classic Victorian villain. He was tried for poisoning his friend John Cook with strychnine. But Palmer, a doctor, was also suspected of poisoning his wife (for 13,000 pounds) and four children (to avoid the expense of raising them).
Palmer’s crimes took place in Staffordshire. But with the rise of newspapers, it was widely thought he couldn’t get a fair trial there. Parliament passed the Central Criminal Court Act to allow Palmer to be tried at the Old Bailey, where he was convicted and sentenced to death by hanging.
The case drew notice in the United States – but because of the admission of circumstantial evidence in a poisoning, not because of the change in venue. Americans had long feared the moving of trials to a central location, which smacked of empire and dominance. The state ratifying conventions had insisted on a guarantee of a local trial precisely because they recalled British removal of some crimes to admiralty courts in which local juries were circumvented so they couldn’t resist British law. The notion that removal could actually serve justice was still anathema.
Gradually, states began to take on board the British rule allowing for a request of a change in venue. It wasn’t until 1944, however, that the Federal Rules of Criminal Procedure were amended to allow for a such a change if local prejudice would make an impartial trial impossible. And it wasn’t until the 1960s when the Warren court announced that the Sixth Amendment right to an impartial jury could trump the Sixth Amendment’s demand of a trial in the district where the crime occurred.
To hold that fairness demanded ignorance, not knowledge, amounted to a near-total reversal of the old jury norms. Historically, the local jurors were thought to already have a good sense of the crime and its circumstances. Now, too much knowledge could be deemed prejudicial. But the shift reflected the broader transformation of the jury from informed insiders to quasi-judicial decision makers.
The Boston Marathon bombing poses a new challenge. It’s not just that many and maybe most Bostonians know one or more of the thousands of people who ran in the marathon and were targets of the attack. (I certainly do.) The search for the bombers actually shut down the city and several suburbs after they killed a police officer for the Massachusetts Institute of Technology and exchanged fire with Watertown police.
Having been in lockdown, with the sound of Black Hawk helicopters overhead and the children barred even from the backyard, was an experience not easily forgotten. And it affected hundreds of thousands of people who might be in the jury pool.
Deepening the problem of a fair trial is the collective response to the bombings. The “Boston Strong” campaign, which featured everyone from then-Mayor Thomas Menino to the redoubtable Red Sox slugger David Ortiz (the latter more popular even than the former) united greater Boston like no other public outpouring in my lifetime. To have been unmoved by this response – in a city notorious for its balkanized neighborhoods and legacy of racism – you would have to have been living in a hole.
The upshot is that, if we took the Warren court’s idea of a fair trial seriously, or wanted to follow the Palmer precedent, the trial really should be moved to Washington, as Tsarnaev’s lawyers requested. The terrorists targeted the symbol of the marathon to affect the whole city of Boston – and they did. I have trouble believing that there are 12 truly impartial Bostonians out there to try the surviving bomber.
In reality, however, it was highly unlikely that the trial would be moved. Courts almost never grant a change of venue. The Supreme Court requires a “totality of the circumstances” test in which careful juror screening can counteract any presumption of general bias. There’s little doubt the Boston court will be extremely conscientious to avoid a successful appeal. This will effectively avoid what the court calls a “circus atmosphere” that can warrant a change in venue.
The justices of the 1960s might not like this result. But the Framers would understand it implicitly. The Boston Marathon attackers may have acted from global motives. But they were local criminals and committed a local crime – and so there is poetic justice in a local trial. Here’s hoping Boston Strong can also be Boston Fair.
Bloomberg View columnist Noah Feldman is a professor of constitutional and international law at Harvard University.