SJC chief decries influence of ‘CSI’

Judge’s remark leads to appeal

By John R. Ellement
Globe Staff / December 11, 2009

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The state’s top judge yesterday offered a personal review of fictional crime shows surfacing in real courtrooms - forget about it.

Margaret H. Marshall, chief justice of the Supreme Judicial Court, expressed frustration while hearing an appeal in a Lowell first-degree murder case in which the defense claims a trial judge committed an error when he referenced the television show “CSI: Crime Scene Investigation.’’

In yesterday’s hearing, the attorney for Vuthy Seng requested a new trial for the man convicted of fatally shooting three children in 1995.

Prosecutors across the country have contended for years that the television show franchise focusing on crime scene investigators has created unrealistic expectations among jurors about forensic science.

Marshall, however, noted from the bench that a 2006 Yale Law Journal study concluded the “CSI effect’’ was legal fiction and that jurors were not influenced to be against prosecutors. As such, she said, talk about “CSI’’ should be banned in courtrooms across the state.

“I am just saying however we resolve the issue in this case, it’s not the first time that it has come up,’’ Marshall said. “We should just keep television out of criminal trials.’’

Marshall added: “Why don’t we just suggest [to judges and lawyers] to forget about ‘CSI.’ Just don’t bring it into a criminal trial. It’s not influencing anybody.’’

Marshall addressed her complaint to Middlesex Assistant District Attorney Melissa Weisgold Johnsen, who is defending the 2007 first-degree murder convictions of Seng.

“I agree with you,’’ Johnsen told Marshall. “It would make my life a lot easier.’’

Marshall replied: “It would make my life a lot easier. I don’t know who else’s life it would make a lot easier.’’

Seng was convicted in 1997 on charges he murdered three of his estranged girlfriend’s children in 1995. A fourth child survived the shooting and testified against Seng.

The SJC granted Seng a new trial in 2002, and he was convicted again in 2007. The court is now deciding whether he should remain in prison for the rest of his life.

Seng’s appellate attorney, Leslie W. O’Brien, told the SJC yesterday that the second trial was flawed. She said Seng’s trial lawyer attacked the forensic evidence, which included DNA and ballistic evidence, as inadequate and incomplete.

The comments at the heart of the legal controversy were made by Superior Court Judge Hiller B. Zobel and were included in a brief O’Brien filed with the SJC.

“And I remind you that this is real life and not ‘CSI.’ I say that without being facetious,’’ Zobel said, according to the transcript. “It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.’’

In court, O’Brien said Zobel’s comments undermined the defense claim that more scientific tests would have exonerated Seng and supported his claim that he was a victim of the same unknown attackers who murdered the children. Seng was shot in the head when found by police.

“It goes directly to the heart of the defense,’’ O’Brien told the SJC justices.