Lawyers Ask U.S. Appeals Court 
To Move Marathon Bombing Trial

Friday, February 20, 2015
Boston — In a federal appeals court Thursday, Dzhokhar Tsarnaev’s defense team argued that what the federal district court has been doing for 51/2 weeks — interviewing prospective jurors — is essentially meaningless. The saturation of media coverage and, perhaps even more important, the personal connection Massachusetts residents feel to the Boston Marathon bombing, add up to a “presumption of prejudice” so strong that jurors cannot predict how they will react once evidence is presented during trial, public defender Judith Mizner argued.

Arguing in front of three appeals court judges, the defense and the prosecution cited different Supreme Court cases to buttress their claims. Among other cases, the government cited Patton v. Yount, in which a man convicted of first-degree murder and rape argued that he had been denied an impartial jury but the Supreme Court ruled that the voir dire process was sufficient to weed out any bias.

The defense cited, among other cases, Rideau v. Louisiana, in which the Supreme Court overturned a 1961 murder conviction because of pre-trial publicity: Wilbert Rideau’s confession had been televised in his small Louisiana community, from which the jury had been drawn.

“Isn’t this the same thing?” asked Judge Juan Torruella, saying that a video of Tsarnaev placing a backpack at the site of the bombing had been widely broadcast.

Assistant U.S. Attorney William Weinreb responded that no, it was not the same thing, because the video was shown nearly two years ago, and to a much broader audience than the confession video in Louisiana.

In fact, both Torruella and the prosecutor were unwittingly demonstrating the effects of publicity saturation in this case. No video of Tsarnaev placing a backpack at the site of the bombing has been broadcast.

Law enforcement and former Massachusetts Gov. Deval Patrick have said that such a video exists — but it is yet to be shown. The video released by the FBI and shown widely during the Boston manhunt in April 2013 showed Tsarnaev walking among the spectators at the marathon, carrying a backpack on one shoulder.

News outlets have, however, published parts of a note ostensibly scribbled by Tsarnaev on the sides of a boat in which he hid during the manhunt; the note is also cited in the indictment. It is not by any strict measure a confession — it contains no specific information about the bombing — but, as Mizner said, “there are news reports characterizing some things as admissions.”

“That’s not a confession,” said Judge Sandra Lynch.

Lynch and the third judge on the panel, Jeffrey Howard, have previously voted to deny Tsarnaev’s change-of-venue request, while Torruella dissented. At Thursday’s hearing, Torruella made it clear that he continues to favor moving the trial.

Torruella challenged Weinreb to find, among the 453 criminal cases tried by the federal district court in the last five years, one in which prospective jurors had made statements similar to those culled by the defense from some of the written questionnaires: “Why waste time on this guy, we know he is guilty;” “We should skip trial and go straight to sentencing;” and “For this case, a public execution would be appropriate, preferably by a bomb at the finish line of the Boston Marathon.”