On June 21, 2021, Crabbe, Brown & James, as General Counsel to the National Fraternal Order of Police (“FOP”), filed an amicus brief in the Supreme Court of the United States. The brief is in support of the petitioner, the United States of America, in United States v. Tsarnaev, better known as the Boston Marathon Bomber case. The Supreme Court has yet to grant certiorari, but the FOP requested that the Supreme Court reverse the First Circuit’s “high-profile case” rule.
Three days after setting off two homemade bombs at the finish line of the Boston Marathon, the defendant and his brother approached a squad car of a MIT Police Officer. The defendant and his brother then shot and killed the police officer execution style at point blank range. Later, in the ensuing shootout in Watertown, Massachusetts, defendant further wounded seventeen law enforcement officers, one of which died as a result of the injuries he sustained.
This case deals considerably with voir dire, the process for examining prospective jurors. During voir dire, the court required prospective jurors to fill out a questionnaire with roughly one hundred questions, many of which aimed at determining their level of exposure to pretrial publicity. Subsequently, during individual voir dire, the defendant requested the judge ask case-specific and content-specific questions regarding pretrial publicity. The district court rejected these requests.
Eventually, the jury convicted the defendant on all counts and recommended the death penalty for six of the eligible counts. On appeal, the First Circuit held that district courts in “high-profile cases” must always grant requests by defense counsel to ask each prospective juror questions about the content of their exposure to pretrial publicity. As a result, the First Circuit, in part, vacated the death sentences with directions to hold a new penalty-phase trial. The United States then petitioned the Supreme Court for a writ of certiorari.
II. The Interest of the FOP:
The FOP, as the world’s largest organization of sworn law enforcement officers, has a considerable interest in the administration of justice for law enforcement officers injured or killed in the line of duty, such as in this case. Moreover, the First Circuit’s “high-profile case” rule will impede the efforts to secure justice for injured or killed law enforcement officers. This is because many cases in which a defendant is prosecuted for murdering a law-enforcement officer naturally fall into the category of “high-profile.”
III. The Position of the FOP:
In its amicus, the FOP addressed two major concerns with the First Circuit’s ruling. First, the FOP argues that the First Circuit’s “high-profile case” rule is an abuse of the Court of Appeals’ supervisory power. Second, the First Circuit’s decision will inflict unnecessary suffering on victims and their families.
Regarding the abuse of the Court of Appeals’ supervisory powers, the FOP pointed out that the First Circuit abandoned existing Supreme Court decisions. These decisions held that the trial courts should be granted wide discretion in conducting voir dire. The FOP went on the illustrate the extensive and thorough voir dire process of the district court. This included lengthy and detailed questionnaires along with countless individual follow-up questions, including questions about media exposure. Additionally, the FOP pointed out that in “high-profile” cases, trial courts need broad discretion. This is because lengthy and extensive voir dire can confuse the jury. As a result, the blanket rule of the First Circuit would only impede the administration of justice.
The FOP also pointed out that the federal system already provides capital defendants with ample protection. First, because federal districts are larger than their state counterparts, so too is the jury pool. A larger jury pool provides a greater opportunity at finding non-biased jurors. Second, the federal system provides capital defendants with a statutory right to two lawyers, one of whom must have experience in capital cases. This includes funding for experts, such as jury consultants. Third, the federal system provides each side twenty preemptory strikes. Finally, a jury must be unanimous in the penalty phase of a capital case in order to impose the death penalty. If the jury is not unanimous, then the defendant receives a lesser sentence.
Additionally, the FOP addresses the unnecessary suffering a new trial will have on the victims and their families. By vacating the defendant’s death sentence, victims and their family will be forced to testify again at the penalty phase of the trial. For example, the family of the MIT police officer murdered by the defendant will have to recount the moments when they learned about his death and the effect it continues to have on their family. As a result, wounds will be re-opened that will take a long-lasting psychological and emotional toll on the victims and their families.
In order to promote the administration of justice, especially in high-profile cases involving injury or death to law enforcement officers, the FOP, as amicus, requested the Supreme Court to reverse the First Circuit’s “high-profile case” rule.