Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Jurors Already Aware Of Evidence In Corruption Case In Federal Criminal Trial

The attorneys in the Chuck Turner corruption case are expected to make opening statements today, Already, however, issues have arisen which cast doubt on Mr. Turner’s ability to have a fair trial. In other words, from the defense’ view, should there be a conviction, appeal issues have already begun to present themselves..

Last week, we discussed the government’s witness who no longer wishes to be a witness in the white collar criminal case
As the week went on, jury selection began.

As you know, the purpose of jury selection is to pose various questions to prospective jurors to weed out those who cannot be fair and impartial to both the defendant and the government. One of the areas in which the court inquires is whether or not the prospective jurors already have heard anything about the case prior to the trial. This is because the jury is supposed to limit their consideration of the facts to the evidence as presented at trial.

As you also know, every fact that exists about a matter, or that was reported in the press, is not necessarily admissible at trial.

Well, it would appear that many of the prospective jurors in the Turner case already knew something of this case prior to coming to federal court to potentially sit on it. Some knew the basic outline of the federal corruption case, others barely anything at all.

But one thing was engraved on the minds of many: the explosive photographs of former state senator Dianne Wilkerson and Turner allegedly taking bribes in 2007 and 2008
In particular, several prospective jurors mentioned a widely disseminated picture of Wilkerson stuffing 10 $100 bills into her bra at No. 9 Park, a posh restaurant near the State House.

Game over for said potential jurors? Not quite.

The test is not simply whether the jurors had seen photos or knew something about the case, but whether that knowledge would prevent them from being fair and impartial.

How do we know whether they can still be fair and impartial?

Well, they said so.

Turner’s attorney has criticized the government from releasing the photos to the press immediately upon the arrests in 2008. He now says that the release of those photos prejudiced the jury pool. Well, clearly, if the aim was to imbed the pictures with the suggestion that a crime was caught on tape, then mission accomplished.

…And what has the prosecutor to say for his office?

Well, in court, he shouted in court that the defense attorney, by making such criticism, has violated a rule that bars lawyers from making comments that could interfere with a fair trial.

The court then warned the attorneys not to violate the rule, but said it was premature to take harsher action.

Attorney Sam’s Take:

This is the legal equivalent to locking the barn door to prevent the horses from getting out…after said horses have already left the barn. In other words, the damage has been done.

“But Sam, are you saying that the news of the arrests should never have been released? Doesn’t the public have the right to know?”

I must answer that question with a question…know what?

Know that these officials were arrested? See pictures which are evidence of the alleged crimes? Watch video tapes of the alleged crimes? How about if the prosecutors recorded their closing arguments to be and released those to the citizens long before the trial??

Is all that ok? After all, it is good press for the government…!

You know, there are countries where the concern for the presumption of innocence is so paramount that, other than the actual arrests, there is an automatic gag order to prevent either side from talking about or “leaking” evidence to the press.

I suggest that it , like most things if you want to be honest, is a question of extent.

Is there a problem reporting the arrest? No.

But there is a problem with trying the case in the press by releasing evidence which is released for only one purpose…to taint the public. The problem is, said public is the jury pool.

On Friday, I attacked our state prosecutorial politicians for having the unmitigated gall to suggest that they are on an equal footing with defense attorneys who represent indigent citizens. This is yet another example of why said comparison is laughable.

If the government releases the evidence they have gathered (which may or may not be admissible) to the press at around the same time the defense even becomes aware of the charges, it is supposed to be a harmless reporting of the news. Let the defense do it as they learn about all the evidence and it is suddenly prejudicial and the self-righteous prosecutors have a fit.

“What’s the big deal, Sam? After all, the jurors said they could still be fair and impartial.”

You are right. Now picture a purple cow in your bedroom munching on your pillow. Now forget it. Take it out of your mind. Never think about it again.

Now, we will have a trial as to whether that cow ever entered your room.

You can still disregard any memory of purple cows and be impartial…can’t you?

If you have been accused of a crime, and would like to talk to an attorney who can see beyond criminal justice fantasies and rely on his experience in the realities, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://mobile.boston.com/news/local/massachusetts/articles/2010/10/15/some_prospective_turner_jurors_recall_fbi_photos/

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