N.H. murder case jurors sequestered belatedly Move may give Pamela Smart mistrial chance.

March 22, 1991|By Boston Globe

BOSTON -- Jurors in the Pamela Smart case, in what legal authorities described as a highly unusual move, have been ordered sequestered after they began their deliberations.

Rockingham (N.H.) Superior Court Judge Douglas Gray's decision yesterday to have the jurors lodged away from home until they reach a verdict raises questions about whether the belated decision could give the defense grounds for a mistrial or an appeal.

The jury was scheduled to start its third day of deliberations today.

Sequestration usually becomes an issue when publicity surrounding a sensational case such as Smart's is so intense that it interferes with a defendant's ability to get a fair trial.

Just why the jury was not sequestered earlier remains unclear. Without elaboration, the judge denied an oral request from Paul Twomey, Smart's lawyer, to sequester the jury at the beginning of the trial. Gray told Twomey he could raise the issue again when the jury was set to delib

erate. But while Gray granted Twomey's motion Wednesday morning, before deliberations began, the jurors were not sequestered that day, apparently because no one had advised them to bring clothing and other necessities in the event of sequestration.

Most legal authorities interviewed yesterday said it was the judge's responsibility to warn the jurors that sequestration was a possibility.

In interviews, legal authorities, defense lawyers and prosecutors offered differing opinions on whether the belated sequestration would affect the Smart case, but most lawyers said, given the intense news coverage of the trial, they were surprised the jury was not sequestered earlier.

"In hindsight, the better course of action would have been to make the decision to sequester at the time of empanelment or, at least, at the beginning of deliberations," said attorney Timothy M. Burke, a former Suffolk County, Mass., prosecutor.

Several lawyers suggested that, aside from the issue of sequestration, if Smart is convicted of orchestrating the murder of her husband, Gregory, she will have grounds for an appeal because Gray refused to move the trial to another county.

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