Court of Appeals to hear oral arguments February 19th in Tsarnaev case

The First Circuit Court of Appeals has scheduled oral arguments next Thursday, February 19th, to consider Dzhokhar Tsarnaev’s request to move his death penalty trial out of Boston. United States District Court Judge George A. O’Toole has denied three defense motions to move the trial and that prompted the defense to go to the appellate court. Meanwhile, jury selection will continue.

The New York Times reports,

In making their requests to move the trial, defense lawyers had cited the attitudes of prospective jurors. They said that of the 1,373 prospective jurors who filled out questionnaires, 68 percent said they already believed Mr. Tsarnaev was guilty and 69 percent had said they had a personal connection to the case.

They also cited the outpouring of emotion in Boston on Jan. 28 when a man shoveled off the marathon finish line in the midst of a blizzard. The Boston Athletic Association, which oversees the marathon, issued a statement saying that the act “proves that — in Boston — everyone owns the marathon.”

The defense seized on this as evidence of bias. “Such remarkable and enduring displays of public solidarity in the wake of the Marathon bombings are laudable,” the defense wrote. “But jurors drawn from the community where ‘everyone owns the Marathon’ cannot be dispassionate and impartial.”

Judge O’Toole and the lawyers have individually questioned 173 potential jurors so far in an attempt to create a pool of 60 – 70 potential jurors who have been passed for cause by both sides (i.e., people who claim that they can put aside what they know about the case and any opinions they may have formed about Tsarnaev’s guilt and impartially decide the case solely on the basis of the evidence introduced in court and the jury instructions). Judge O’Toole wants a pool that large before the lawyers exercise their peremptory challenges. Unlike challenges for cause that must be supported by a reason why the potential juror cannot be fair and impartial, peremptory challenges do not require a reason. Each side has 20 peremptory challenges, plus 3 for the 6 alternates. If both sides exercise their full complement of peremptory challenges, 46 potential jurors could be disqualified. To be on the safe side, the pool should consist of 64 potential jurors. They are not there yet, despite a month of jury selection and that demonstrates how tainted the potential jurors are by the extensive pretrial publicity and their feelings about the case.

In addition, a large percentage of the potential jurors would either automatically impose the death penalty if Tsarnaev is convicted or automatically refuse to impose it because they are opposed to it. Only people who can agree to balance evidence in aggravation against evidence in mitigation can serve on the jury. This is called the death qualification process.

I do not believe it’s possible to select a fair and impartial death qualified jury in Boston and I would grant the defense motion for a change of venue, if I were the judge. Judge O’Toole disagrees. Now a three-judge panel will decide whether to keep it in Boston or move it to another location.

10 Responses to Court of Appeals to hear oral arguments February 19th in Tsarnaev case

  1. I guess I was not clear. I was talking about the Boston/DT case. Thanks.

  2. Is there something odd about this going to the 5th Circuit? I do not know all the boundaries, etc….but seems out of its usual arena. Are you fairly confident about the ruling? Thanks

    • I was mistaken. Alabama is in the 11th Circuit together with Florida and Georgia.

      (Mississippi, Louisiana and Texas are in the 5th Circuit)

      The Alabama Attorney General, Luther Strange, asked for a stay of enforcement of Judge Granade’s order pending the SCOTUS decision in the same-sex-marriage cases it has agreed to review. They declined, so he applied to Justice Thomas who oversees the 11th Circuit.

  3. Two sides to a story says:

    I would think any judge who is fair and dispassionate would allow the motion to move the trial.

    • Malisha says:

      I would allow them to move it out of Boston in BOSTON’S best interests as well. If anybody who could be fair about guilt would thereafter be prejudiced (having pre-judged) about the death penalty, whatever the results of this trial are in Boston, the city will suffer some horrible negative collateral consequences after the completion of the trial and the INEVITABLE appeals. OMG. Just think of it. There could be more murders inside Boston as a result of the divisiveness of the trial and its outcome! Why risk it? It would be a continuing jeopardy to emotionally involved innocent bystanders.

      • The government should have agreed to drop the death penalty in exchange for a guilty plea to LWOP, but the govt refused. Now it’s a mess and the refusal to move the trial out of Boston may well turn out to be reversible error requiring another trial 10 or more years from now.

    • I agree.

      I think he’s thinking that the people of Boston need this trial to process the loss and get closure. Also would inconvenience a lot of witnesses, especially those who were injured, who would have to travel to the new location to testify.

      Plus, of course, he doesn’t want to inconvenience himself.

      • Malisha says:

        Too often the govt makes a mess, the consequences of which it then doesn’t want to suffer. So all the victims get blamed again. If this guy were to be acquitted (whether or not he did it) I believe the jury would be mobbed. What a chaotic irremediable set-up!

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