Dzhokhar Tsarnaev’s defense has their hands full with lots of issues.
But, one of their bigger problems is that if his case goes to trial, it has already been reported that he has confessed to the awful crime.
But that “confession” – if it actually happened – may or may not be allowed in a trial, since Mr. Tsarnaev had not yet been “Mirandized” – reminded of his rights to be represented by a lawyer and to remain silent.
However, for a lot of the public – some of whom might be potential jurors – he’s already admitted guilt.
The story illustrates a common legal problem in high profile cases in which the press is clamoring for information and sometimes someone in the government – maybe a prosecutor, maybe a police officer – is willing to oblige as long as they are not identified.
The government could dangle a key piece of evidence that may or may not be used later. Or, a defense lawyer may suggest anonymously that his client is ready to plead. What’s wrong with that?
Both prosecutors and defense lawyers say the leaks make trying a case more difficult. If the pre-trial information is extremely detrimental it might mean an expensive move to a different venue. And, in extreme cases, higher courts may decide on appeal that the atmosphere around a trial was such a media circus that the case has to be retried.
“Indeed, it can get to the point where the defense can’t get a fair trial anymore,” says Jonathan Shapiro, a criminal defense lawyer for 40 years and now a visiting professor at Washington & Lee Law School in Lexington, Va.
In Sheppard v. Maxwell, the US Supreme Court ruled in 1966 that intense pretrial publicity prevented Samuel Sheppard from getting a fair trial for allegedly bludgeoning his pregnant wife to death.
The justices ruled 8 to 1 that the circus-atmosphere around the trial prejudiced jurors’ minds. The trial judge should have postponed the case or moved it to a different venue, the court ruled.
Prosecutors can also be leery about unsourced leaks. For example, Jason Blair, a disgraced former reporter for The New York Times, broke a story about the Beltway sniper, John Muhammad, claiming that on Oct. 30, 2002, Mr. Muhammad was about ready to confess to the shootings when the US Attorney forced interrogators to stop questioning him.
Prosecutors adamantly denied the story, but the so-called near-confession made people think he must be guilty.
In another article, Mr. Blair wrote that unidentified officials had decided that Lee Boyd Malvo, Mr. Muhammad’s teenage accomplice, was the triggerman. The prosecutor in the case held a press conference to deny that story as well.
"I don't think that anybody in the investigation is responsible for the leak, because so much of it was dead wrong," the prosecutor, Robert Horan, said at the news conference as reported by The New York Times in its own story about Blair’s many fabrications, including much of his reporting on the Beltway sniper case.
Mr. Shapiro was one of the defense lawyers in the Muhammad and Malvo case, and he, too, was distressed by the supposed leaks reported by Blair.
His team filed motions to hold law enforcement officials in contempt of court since the judge had ordered them not to speak to the media. “They replied, it’s not us,” says Shapiro.
What impact did all the pretrial quotes have on the public?
Shapiro and his co-counsel, Peter Greenspun, took an admittedly unscientific poll at a shopping mall. They asked 100 people whether they thought Muhammad was guilty or innocent.
“Ninety-nine had concluded they were guilty and should get the death penalty,” he recalls. “One person said he did not know if Muhammad was innocent or guilty but he should get the death penalty.”
Muhammad’s and Malvo’s trials ultimately were moved out of the district. Both were found guilty, and Muhammad was executed for his actions. Malvo was sentenced to life in prison without parole.
But contact between reporters and lawyers in a trial is not always just about getting information for a news story. Sometimes lawyers have their own reasons to talk to the media, whether to present their spin on a case or, sometimes, learn new information.
“With the media, there are so many people out digging up information that could be useful to know,” Shapiro says. And, the media are not shy about trading information. “Both sides use the press and the press uses both sides,” says Shapiro. “It is a symbiotic relationship.”
In cases with a lot of pretrial publicity, judges may question jurors privately, says James Cohen, a professor at Fordham Law School and a criminal defense lawyer. Mr. Cohen recalls one of his high profile cases where the judge asked potential jurors if anyone knew anything about the case.
“A lot raised their hands,” he recalls, so the judge decided to question the jurors in the privacy of his chambers. “He asked, ‘Has what you have heard about the case prejudiced you in any way?’ ” Cohen recalls. “Some said they had been prejudiced.”
Cohen ultimately lost the case, which involved a murder, and thinks the pretrial publicity probably hurt his defendant. “I have never lost a case with thinner evidence,” he says.