Comparing Jury Instructions for Tsarnaev with Those in a Vermont Case

Men in Alabama waiting to lynch the Scottsboro boys in 1932; Mary Maxwell in Boston in 2022Men in Alabama waiting to lynch the Scottsboro boys in 1932;  Mary Maxwell in Boston in 2022

by Mary W Maxwell, LLB

Just a thought — why isn’t the Woke Set focusing on the fact that a jury in Boston, in 2013, condemned a Chechnyan boy to death without a fair trial?  Think back to the trial of the Scottsboro boys — eight Negroes tried for raping two white women (did not happen), while a band outside the courthouse played “Hail, hail the gang’s all here.” What’s the diff?

By chance today, I came across a set of jury instructions in a 1992 Vermont case. I was so surprised at how thoroughly the judge gave the jurors careful definitions of the crimes, and explained to them what they should do. I’ll print it below as I think every layperson, including me, can learn a lot from it about assault, circumstantial evidence, and presumption of innocence.

These days I am certainly not reflecting on the Marathon scandal, as we are in a genocide. But even if there were no genocide, I can’t do anything for Jahar Tsarnaev except natter on. The US Supreme Court reinstated his Death Penalty.  I believe he has another shot at appeals based on “ineffective counsel” — as we know, his counsel could win Olympic gold for Ineffectiveness. But to get to the court, you have to apply to Mr and Mrs Ineffective.

I’ll bet Kafka neve thought of that one.

Instructions to the Jurors in US v Tsarnaev, in 2013

For now, in case any solicitor listening wants to help, I will recount the problem of the juror instructions as given by US District Court George A O’Toole, Jr.  The custom is for the prosecutor to suggest some words to be put to the jury, and his/her suggestions then go to the Defender who may agree with them or alter them.  The judge is under no obligation to use the suggested words of either side.

Here is what the prosecutor, Carmen Otriz, in February 2013,  recommended as the last few words for jurors. (It’s perfectly kosher.):

“The indictment charges the defendant with multiple counts of possession and use of a firearm during and in relation to a crime of violence, and it alleges in some of those counts that the crimes resulted in the deaths of Krystle Marie Campbell, Officer Sean Collier, Lingzi Lu, and Martin Richard. Finally, the indictment alleges that the defendant carjacked and robbed an individual who has the initials D.M. The defendant has pleaded not guilty to all of the charges.” [Bolding added by Mary Maxwell]

Then the defense attorney Judy Clarke offered a correction to that Jury Instruction. In Motion 1101-1 on March 2, 2015, we see that she wrote an ending exactly as follows:

“Finally, the indictment alleges that the defendant carjacked and robbed an individual who has the initials D.M. The defendant is presumed innocent of all charges, and the Government bears the burden of proving each and every element of the charges beyond a reasonable doubt.

Yes, she crossed it out. And yes, the Judge obeyed her. Very likely the jurors went to their deliberation room thinking Jahar had pleaded guilty. After all, they had heard Judy Clarke say, in her opening statement: “It was him.”  I’m not kidding. She said that.

And the Great Nine would have seen in the file that I wrote to the Appeals judge, Cheif Judge  Juan Torruella, to tell him that SCOTUS had ruled in McCoy v Louisiana that a defender must not indicate guilt against the wish of an accused to plead not guilty. Note: Judge Torruella died On October 26, 2020, in Puerto Rico.

For the rest of this article, I offer the Vermont judge’s veritable Master Class on responsible jury behavior.

JURY INSTRUCTIONS, at a 1992 Trial in the State of Vermont

     AGGRAVATED ASSAULT WITH LESSER INCLUDED SIMPLE ASSAULT


INSTRUCTIONS TO BE CONSIDERED AS A WHOLE
You have all heard the evidence.  You are all to consider the instructions as a whole and are to regard each instruction together with the others given to you.  Do not single out any certain sentence or any individual point or instruction and
ignore the others.

INFORMATION OR INDICTMENT – CHARGE
This is a criminal case brought by the State of Vermont against                            .  The case was started when an information was filed which charged the defendant with
violating a state law.  The information charges:

INFORMATION NOT EVIDENCE
The defendant has entered a plea of not guilty.  The burden rests upon the State to prove to each of you, beyond a reasonable doubt, every essential element of the offense charged.  I will explain the elements of the offense and define reasonable doubt
in a moment.

The charge which has been filed is the formal method of bringing the defendant to trial.  The fact that a charge has been filed is NOT to be considered by you as any evidence of guilt.

PRESUMPTION OF INNOCENCE
The presumption of innocence remains with the defendant unless and until the jury reaches a verdict of guilty.  This presumption of innocence is evidence you may consider in favor of the accused in arriving at your verdict.  This presumption presents sufficient reason to find                          not guilty.  The defendant is not required to present any evidence to prove his innocence.

To overcome this presumption of innocence, the State must prove the defendant guilty of each essential element of the crime charged beyond a reasonable doubt.

REASONABLE DOUBT
A reasonable doubt is a doubt based on reason.  Reasonable doubt may be created by the evidence presented or it may arise from the lack of evidence.  State v. Cohen, 2 Vt. L. Wk. 303 (1991); State v. McMahon, No. 90-464, Entry Order (Vt. Jan. 8, 1992).

ESSENTIAL ELEMENTS
As you are aware, the defendant is charged with aggravated assault.  However, there is a lesser included offense called simple assault that you must consider.  For both offenses, I will now instruct you on the separate essential elements which the State must prove beyond a reasonable doubt.  If the State fails to convince you beyond a reasonable doubt as to any one element, then you must find the defendant not guilty of the offense of
which that element is a part.

For you to find the defendant guilty of aggravated assault, the state must have proved beyond a reasonable doubt, the existence of the following essential elements:

  1. the defendant,                           , caused serious bodily injury to another;
  1. the defendant did so under circumstances manifesting an extreme indifference to the value of human life; and
  1. the defendant acted recklessly under such circumstances and it resulted in the bodily injury.

The words used by the legislature to define the elements of the crime carry their common and ordinary meaning.  Some terms have distinct legal definitions.  The following definitions may help you in understanding the meaning of the words used.

“SERIOUS BODILY INJURY” is defined as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.  13 V.S.A. 1021(2).  [I will now read the stipulation filed by the parties in this case with regard to serious bodily injury:]

The defendant and the State agree that for purposes of this trial, Michael Fitzgerald suffered “serious bodily injury” as that term is defined by Vermont Statute, as
a result of a wound which he received to his head on June 14, 1991.  Therefore, you may find that the element of serious bodily injury is established beyond a reasonable doubt, even if the parties do not present
evidence on that element.

“CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE
OF HUMAN LIFE” are those events surrounding the imposition of serious bodily injury which demonstrate a blatant disregard for the victim’s life.  State v. Joseph, 2 Vt. L. Wk. 409, 410 (1991); State v. Saucier, 512 A.2d 1120, 1125 (N.H. 1986).

“RECKLESSLY” means a conscience disregard of a substantial and unjustifiable risk.  The risk, in this case of serious bodily injury, must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to him, its disregard is a gross deviation from the standard of conduct a law abiding citizen would have observed in the actor’s situation.  Black’s Law Dictionary, 1142
(5th ed. 1979)(citing Model Penal Code 2.02)

The defendant claims his gun discharged accidentally.  That is a question of fact for you to decide but as I’ve told you, the burden of proof rests upon the state to prove each element beyond a reasonable doubt.

For you to find the defendant guilty of simple assault, the lesser included offense, the state must have proved beyond a reasonable doubt, the existence of the following essential elements:

  1. the defendant caused bodily injury to another; and
  2.   the defendant acted recklessly.

“BODILY INJURY” is defined as physical pain, illness or any impairment of physical condition.  13 V.S.A. 1021(1).  Serious bodily injury, which the parties agree was suffered by , includes the definition for bodily injury.

Id. 1021(2); Blakeney, supra, at 500.  Therefore, if you conclude beyond a reasonable doubt that the victim suffered a serious bodily injury then he suffered a bodily injury.
As already defined, “RECKLESSLY” means a conscience disregard for a substantial and unjustifiable risk.  The risk, in this case of bodily injury, must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and
the circumstances known to him, its disregard is a gross deviation from the standard of conduct a law abiding citizen would have observed in the actor’s situation.  Black’s Law
Dictionary, 1142 (5th ed. 1979)(citing Model Penal Code 2.02)

The state must prove every essential element of the offense beyond a reasonable doubt.  If the state fails to prove any element of the offense beyond a reasonable doubt, you must find the defendant not guilty of the offense for which the unproven
element is essential.

PRESUMPTION OF INNOCENCE BETWEEN DEGREES
I will now guide you as to how you should consider the essential elements in each offense in this case. It would be improper for me to control the manner of your deliberations to
the point of mandating a set order by which you must consider the evidence.  However, the presumption of innocence applies to each offense and requires you to search for every mitigating circumstance which may result in the lowest degree of guilt consistent with the facts and evidence as you find them.  State

  1. Duff, 150 Vt. 329 (1988). Therefore, the court suggests you consider the issues in this case in the following manner.

First, decide if the defendant committed a simple assault. That is, did                   cause bodily injury while acting recklessly.  If after considering the evidence as you find it and the presumption of innocence, you have a reasonable doubt as to any element of that offense you must find the defendant not guilty of all offenses and you need go no further in your deliberations.  If after considering the evidence
as you find it and the presumption of innocence, you are convinced of each essential element of simple assault beyond a reasonable doubt, then consider whether the defendant committed aggravated assault.

That is, did                                cause serious bodily injury while acting recklessly under circumstances manifesting extreme indifference to the value of human life.  If after considering the evidence as you find it and the presumption of innocence, you have a reasonable doubt as to any element of that offense, you must find the defendant guilty only of simple assault and not guilty of aggravated assault.  If after considering the evidence as you find it and the presumption of innocence, you are convinced of each element of aggravated assault beyond a reasonable doubt, then you must find the
defendant guilty of aggravated assault.

You may find the defendant not guilty of all offenses; in which case your verdict would be not guilty.  You may find the defendant guilty of simple assault and not guilty of aggravated assault; in which case your verdict would be guilty of simple assault and not guilty of aggravated assault.  You may find the defendant guilty of simple assault and guilty of aggravated assault; in which case your verdict would be guilty of aggravated
assault.  You may not find the defendant not guilty of simple assault and guilty of aggravated assault.  Once again, your three choices for a verdict in this case are not guilty of any offense; guilty of simple assault and not guilty of aggravated assault; or guilty of aggravated assault.  Of course, to find the defendant guilty of any offense the state must have proven the essential elements of that offense beyond a reasonable doubt.

GENERAL GUIDES TO DELIBERATIONS
Now allow me to provide some general guidelines to assist you in your deliberations.

CREDIBILITY OF WITNESSES / WEIGHING EVIDENCE
You are the sole judges of the evidence.  The credibility of the witnesses and of the weight to be given to the testimony of each of them is up to you.  In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe; the manner and conduct of the witness while testifying; any interest, bias or prejudice the witness may have; and the reasonableness of the testimony of the witness considered in the light of all the evidence in the case.

You may assume that each witness told the truth.  You should not disregard the testimony of any witness without a reason and without careful consideration.  If you find conflicting
testimony, you must determine which of the witnesses you will believe and which of them you will disbelieve.  You may believe all, some or none of the testimony of a witness.

In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day to day living.  The number of witnesses who testify to a particular fact, or the quantity of evidence on a
particular point need not control your determination of the truth.  You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

TYPES OF EVIDENCE
“DIRECT EVIDENCE” means evidence that directly proves a fact, without the need for an inference and which if true, conclusively establishes that fact.

“CIRCUMSTANTIAL EVIDENCE” means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

An “INFERENCE” is a deduction of fact that may logically and reasonably be drawn from another fact or groups of facts. It is not necessary that facts be proven by direct evidence. Both direct and circumstantial evidence are acceptable as a means of proof.  Neither is entitled to greater weight than the other.

EVIDENCE OF FLIGHT BY DEFENDANT
There has been evidence introduced in this case tending to show that the defendant fled from the scene of the incident.  if you find that he did this, it does not raise any presumption of guilt.  It has limited probative value because there are many reasons for such conduct which are consistent with being not guilty; including fear, ignorance, and confusion.  But you are entitled to consider these facts if you find such to be the case
as tending to show a consciousness of guilt on the defendant’s part.  In weighing any evidence of flight, along with all the other evidence as you find it, you are entitled to give it such weight as you think it deserves.  State v. Unwin, 139 Vt. 186 (1980); State v. Giroux, 151 Vt. 361 (1989)

RULINGS OF COURT
During the progress of trial, certain questions may have been asked of some witnesses and certain exhibits may have been offered which the court ruled were not admissible into evidence. You must not concern yourselves with the reasons for the rulings since the production of evidence is strictly controlled by rules of law.

You must not consider an exhibit or testimony which the court ordered stricken from the record.  In fact, such matter is to be treated as though you never heard or saw it.
Nothing that I said or did during the trial is intended as any suggestion of which facts you should find or what verdict you should reach.  Each of you, as jurors, must determine the facts and reach a verdict.

STATEMENTS BY COUNSEL
The statements or comments of counsel for either the state or the defense should not be considered as evidence in this case.  It is your duty to determine the facts from the testimony and evidence admitted by the court and given in your presence. You should disregard any and all information that you may have derived from any other source.

SYMPATHY – PREJUDICE
Neither sympathy nor prejudice for or against the state, the defendant or any witness or victim involved with this case should be allowed to influence you in any manner in reaching your verdict.

JURY DELIBERATIONS
Your verdict must represent the considered judgment of each juror.  In order to return a verdict of guilt or innocence you must all agree.  Your verdict must be unanimous.

When you have reached a verdict, inform the court officer that you have reached a verdict.  Do not tell the officer what the verdict is.  You will then be brought into the courtroom where the court will ask you if you have reached a verdict and what that verdict is.

If the state failed to prove each essential element beyond a reasonable doubt, you must find the defendant not guilty. If the state did prove each essential element beyond a
reasonable doubt, you must find the defendant guilty.

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