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Three months after a federal jury sentenced Dzhokhar Tsarnaev to death for the Boston Marathon bombing, Judge George O'Toole has taken no action yet to end secrecy around many parts of it, including the identities of the jurors who sentenced Tsarnaev to death.
"In a democracy, criminal trials should not, as a rule, be decided by anonymous persons," wrote the U.S. Court of Appeals in Boston in 1990.
That principle of openness has a clear upshot, according to George Freeman, assistant general counsel for The New York Times for 30 years.
"Basically there is a constitutional right of access to everything coming out of a trial and that includes the names and addresses of the jury," Freeman said.
There are few exceptions allowed by traditional law and precedent, which require a high threshold of what the courts call "specific and convincing reasons."
"Particularly in cases where there's concern about the personal safety of the jurors and often anonymity is provided before a verdict is reached," said Robert Bertsche, general counsel to the New England Newspaper and Press Association.
In the case of domestic terrorist Tsarnaev, as disturbing as the facts were, Judge O'Toole never made any such finding the jurors were in danger. By the government's theory, Tsarnaev had acted as a so-called "lone wolf" along with his brother, who was killed.
"It is by far an aberration, particularly in Massachusetts, for jury lists to be withheld," Bertsche said.
The state Supreme Judicial Court has ruled that "even in high profile and contentious cases," it is "beyond debate that, absent extraordinary circumstances, the identities of jurors ... are presumptively public."
"There have been decisions where the names of jurors has been deferred for seven days or 10 days," Bertche explained.
And in the trial of James "Whitey" Bulger, the judge held the jury list for 14 days — the longest delay in anyone's memory. Now comes O'Toole, who has now withheld the jury list for 90 days so far. Observers say it is unprecedented.
"Three months is an awfully long time, and there's no possible rationale as to why there should be such a delay," said Freeman, who is now with the Media Law Resource Center in New York.
O'Toole, who we were tried to reach Monday, has made no statement and given no explanation why he has not yet released the jury list. He has not responded to motions filed by The Boston Globe, joined by WBUR, asking that he release the list.
And what draws still more attention to O'Toole is that neither the U.S. attorney's office nor the defense oppose the release of that jury list.
"The problem is that judges in high publicity cases tend to think that because there's a lot of publicity, that's a reason to change the rules," Freeman said. "And if anything, that's backwards. Because it's just in those cases that the rules should be followed and the presumption of access should exist, because those are the cases the public is interested in."
Other judges have expressed a concern for protecting jurors from the onslaught of the press, of what federal Judge William Young once described as "a gauntlet of klieg lights," "a massed phalanx of newspeople with microphones thrust forward," making jurors like "the fox pursued by hounds." Yet Young withheld the jury list for only seven days in that case.
Appeals courts have recognized that jurors may be "citizen soldiers," but they're "soldiers nonetheless."
"Part of the distasteful duties of being a juror may involve having to deal with phone calls from the likes of me and others," I said to Bertsche.
"That's right and you have an absolute First Amendment right to say, 'Thank you for calling, but I'm not interested in talking with you. Please don't call me again.' "
One local judge who tried to balance competing interests in more orderly fashion was now-retired state Superior Court Judge Robert Barton. While presiding over 150 murder trials, he took a different approach to jury lists.
"I would thank them for their service and also tell them that news media is going to try to track them down in the future, and rather than be bothered at home or elsewhere, why don't we have one or two representatives go out now, and so it was orderly," Barton said in an interview. "Now is the time rather than be haunted at home for the next six months."
On the day of the verdict, after the jurors had recommended Tsarnaev be put to death, O'Toole told them "in a democracy, criminal trials should not as a general rule be decided by juries that remain anonymous. So your names and towns and cities of residence will eventually be made public.
"It's only a matter of time," O'Toole said in acknowledging what the law dictates what he should do, even though he has not yet acted, and not yet responded to motions to release the list.
"By failing to rule for three months on this motion the judge is really inhibiting the process of allowing the judiciary to determine what is the proper outcome in this case," Bertsche said.
Meanwhile last week, one member of the jury, who has been writing a book about the case, spoke about the trial to WBZ-TV. But the juror insisted on appearing in shadows and withholding his name during the interview. Thus, the juror remains anonymous, just like the others, able to make claims that cannot be challenged, because the judge has not released his identity.
"There is a reason that jury deliberations are conducted in secret," the judge told the jurors before dismissing them in May.
In this case, as O'Toole himself has acknowledged, that secrecy does not extended to their identities.
In a statement Monday afternoon, the clerk of court stated, "The handling of motions before the court is entirely at the court's discretion."
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