The Judge was not happy the defense filed their brief publicly and later yesterday issued this order placing it under seal:
Jury selection is currently underway in this matter. Great care has been taken to maintain the integrity of the proceedings and to protect the privacy of jurors, including by keeping the completed questionnaires confidential and non-public. Earlier today, the defendant filed a Third Motion for Change of Venue.
The memorandum in support of the motion quotes from the confidential juror questionnaires, attributing the quotes to specific prospective jurors who are identified by juror number, including jurors who have not yet been interviewed in the course of the public voir dire proceedings.
This was improper. Consequently, though the damage already may have been done by the defendant's public filing of confidential material, I have ordered the memorandum in support of the defendant's motion to be placed under seal until further order.
The press has been in the courtroom and doing live reporting of the questions and answers from the prospective jurors according to their juror numbers. The judge's beef seems to be that the defense quoted from their questionnaires in its filing, not just their answers during live questioning.
The brief is still available online as some sites published it before it was sealed. I just finished reading it (and won't link to it or quote it since it's now sealed.) I will say some of the answers people gave are simply disgusting and I think the public should be allowed to see them. All the judge had to do was redact the juror numbers of those whose written answers were quoted -- not seal the whole brief.
Also yesterday, the court sent out a notice to the media yesterday that because jury selection is going so slowly, the trial will not begin next week as planned. No new date has been set.
The New Yorker has just published this interesting article on the jury selection process so far. The most memorable paragraph discusses a dispute between the parties over the meaning of the presumption of innocence:
If jurors cannot be expected to believe that Tsarnaev is innocent, there is the question of what the “presumption of innocence” means. On the third day of the voir dire, an argument erupted between the defense and the prosecution about this basic issue. Judy Clarke, one of the defense attorneys, said that the questioning was conflating the presumption of innocence with the concept of burden of proof, and assuming that it was enough for a prospective juror to understand that it was the government’s duty to show that Tsarnaev was guilty. The judge sided with the prosecution, saying that “presumption of innocence” is “a term of art” that does not actually mean presuming the innocence of a defendant.
I tracked the history of the phrase back in 2003 here, writing that in 1895, the U.S. Supreme Court traced the history of the presumption of innocence in Coffin v. United States, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. (The case was later overruled on grounds unrelated to the presumption of innocence issue.)
The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence -- by informing the jury that a defendant is presumed innocent. The Court stated,
The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Courts still cite the 1895 Coffin case as controlling on the issue in federal trials. For example, in a September, 2014, U.S. District Court Judge Katherine Forrest (now presiding over the bitcoin case of Ross Ulbricht) wrote an order in another case (available here)stating:
The U.S. Constitution provides that each defendant is presumed innocent until proven guilty. See Coffin v. United States, 156 U.S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.").
Different standards may apply for state trials, but Tsarnaev is being tried in federal court, where the presumption of innocence is not and has never been, as far as I can tell, merely a term of art.
