Today's issue is whether the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing, delayed already, should be moved out of Boston.
How can a former president of the Civil Liberties Union of Massachusetts (me) say such a thing? How could any decent liberal deny this young man, presumed innocent until proved guilty, after all, his constitutional claim to fairness in the courtroom?
Boston deserves a trial because it went through hell, and in our system, rather than resolving hellish disputes on the streets, they are supposed to be resolved in court.
Jury selection has been taking place over the past 17 days, with Judge George O'Toole giving broad way to the attorneys' rights to argue their points. So far, it is reported that only 61 jurors have qualified out of a pool of 1,373 people, with about two-thirds of potential jurors reporting that they were personally affected by the crime in question.
It is a hardship to serve on a jury. It can be inconvenient, boring, expensive and tedious. And yet we each do it because it is one of the most important things a citizen can do. Sitting on a capital case, you're not a chess piece on the board. The men and women, the players who ultimately will determine Tsarnaev's fate, may not be his peers in most senses, but they are his constitutional peers, and it is their judgment he must face and accept.
A defendant has a right to a trial by jury. He is being represented by federal public defender Judith Mizner. Because this case has taken on such notoriety, the federal government's team will be led by smart lawyers who play by the rules and have the press watching their every step.
Not so for many who have committed, or have been alleged to have committed, heinous crimes. The system is overloaded. Judges are too busy; courts are full; clerks are overwhelmed. You can't dump all of society's problems on the courts to solve. Defendants are bounced around the system, assigned inadequate counsel and never given the opportunity to force the government to make its case. Tsarnaev will have that opportunity.
But no defendant has a right to a perfect trial, much less in a perfect locale. I'm not sure anyone could find a capable juror who had never heard of the Boston Marathon bomber, but it doesn't matter. He came here, he stayed here, he went to school here, and he allegedly murdered people here. He has no right to leave.
Communities need rituals to bind them together. There is much more that binds us together as Bostonians than the Red Sox. But at its core, the people of Boston shared in their grief and are entitled to have their say in the place where it happened. Watching it on TV is not the same. The bombing was covered heavily everywhere, and so, I hope, will be the trial. For if the trial gives a window into how a civilized society deals with those who cannot and will not act in a civilized fashion, then at least we will have one lesson out of the rubble.
(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)
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