Tsarnaev Trial: Change of Venue Request

Dzhokhar Tsarnaev has requested a change of venue to Washington, D.C. The judge has not yet ruled on the motion.

Since Mass. does not have a death penalty, many thought the defense would prefer to have the trial there, notwithstanding the pretrial publicity. But the expert surveys conducted by the defense showed Mass. residents presumed Tsarnaev guilty in greater numbers than residents of other places:

Attorneys said they had enlisted an expert to survey public opinion in four cities: Boston, Springfield, Mass., New York City and Washington. Respondents were asked a series of questions, including whether they believed Tsarnaev was "definitely guilty, probably not guilty or definitely not guilty" of the April 2013 bombings that left three dead and more than 260 wounded.

In Boston, 58% said they believed Tsarnaev was definitely guilty, as did 52% in Springfield and 48% in Manhattan. Only 37% in Washington said the same.


The defense also raised the "community impact" argument:

The community impact here is even greater than that present in McVeigh," wrote attorneys Judy Clarke, Miriam Conrad and David Bruck. They recalled how the region was gripped by "indelible fear that friends or family could have been killed or injured" in the Marathon attacks and how a shelter-in-place order affected hundreds of thousands during the manhunt for Tsarnaev and his brother, who was killed in a shootout with police days after the bombing.

"If a change of venue was warranted in McVeigh," they wrote, "it is even more compelled by the facts presented here."

I think one of the best arguments for a change of venue is what I have called, the "Boston Strong" argument. Judge Matsch, in ordering the OKC bombing trial moved to Denver, discussed the difference in media coverage in Oklahoma and the rest of the country. Not only was it greater in frequency and depth, even after the passage of several months, the OK coverage centered on the personal lives and stories of the victims. Judge Matsch wrote:

Armstrong [Russell Scott Armstrong, an expert in news media analysis] opined that the greater informational needs of Oklahomans resulted from a perception that Oklahomans are united as a family with a spirit unique to the state. Indeed, the "Oklahoma family" has been a common theme in the Oklahoma media coverage, with numerous reports of how the explosion shook the entire state, and how the state has pulled together in response. The political leadership of the state has repeatedly and consistently emphasized the bonds tying all Oklahomans together as family and proclaiming to the nation and the world that the survival and recovery from this tragedy is "Oklahoma's story."

.... There is an evident and understandable pride of accomplishment in all that has been done to try to return to normalcy. Prominently displayed in the state capitol building is the artwork of survivors and families of the deceased done at a state sponsored gathering at Quartz Mountain under the heading "Celebration of the Spirit." Many Oklahomans view a trial of this case as an additional challenge and want the opportunity to demonstrate their ability to be fair in spite of this extraordinary provocation of their emotions of anger and vengeance. They seek participation in the trial to demonstrate an ability to overcome a tragedy with such powerful emotional impact that people have come to measure time by it.

Pride is defined as satisfaction in an achievement, and the people of Oklahoma are well deserving of it. But it is easy for those feeling pride to develop a prejudice, defined as "(a) an adverse judgment or opinion formed beforehand or without knowledge or examination of the facts and (b) a preconceived preference or idea." The American Heritage Dictionary of the English Language (3d ed. 1992). The existence of such a prejudice is difficult to prove. Indeed it may go unrecognized in those who are affected by it. The prejudice that may deny a fair- trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to something not included in the evidence. -That something has its most powerful effect if it generates strong emotional responses and fits into a pattern of normative values.

In this case the repetition of emotionally intense stories of loss and grief and the valiant efforts to overcome the consequences of this event have developed a common belief that the citizens of Oklahoma can and must take what many believe to be the necessary last step on the road to recovery--participation in the trial of these accused men. The character of the crimes charged is so contrary to the public expectation of human behavior that there is a prevailing belief that some action must be taken to make things right again. That theme is dominant in the comments of people interviewed by television reporters asking about their reactions to court proceedings in this case. The common reference is to "seeing that justice is done." There is a fair inference that only a guilty verdict with a death sentence could be considered a just result in the minds of many.

The emotional burden of the explosion and its consequences has been intensified by the repeated and heavy emphasis on the innocence of the victims and the impact of their loss on their families. The tragic sense is heightened by the deaths of infants and very young children in the day care center. The horror of that fact has been powerfully portrayed by the symbols of teddy bears and angels displayed everywhere in Oklahoma. They were placed on a Christmas Tree at the State Capitol. The public sympathy for victims is so strong that it has been manifested in the very courthouse where these motions were heard...

...The intensity of the humanization of the victims in the public mind is in sharp contrast with the prevalent portrayals of the defendants. They have been demonized. The videotape footage and fixed photographs of Timothy McVeigh in Perry have been used regularly in almost all of the television news reports of developments in this case. All of the Oklahoma television markets have been saturated with stories suggesting the defendants are associated with "right wing militia groups." File film shows people in combat fatigues firing military style firearms to illustrate the suggested association. That theme has particularly been emphasized with Terry Nichols and his brother. These films have also been shown in Denver and on national news programs but not with the frequency of the use by broadcast outlets in Oklahoma.

...The possible prejudicial impact of this type of publicity is not something measurable by any objective standards. The parties have submitted data from opinion surveys done by qualified experts who have given their opinions about the results and their meaning. The government places heavy reliance on this evidence to support the position that a fair and impartial jury can be selected in the Northern District of Oklahoma for a trial in Tulsa. Such surveys are but crude measures of opinion at the time of the interviews. Human behavior is far less knowable and predictable than chemical reactions or other subjects of study by scientific methodology. There is no laboratory experiment that can come close to duplicating the trial of criminal charges. There are so many variables involved that no two trials can be compared regardless of apparent similarities. That is the very genius of the American jury trial.

...Extensive publicity before trial does not, in itself, preclude fairness. In many respects media exposure presents problems not qualitatively different from that experienced in earlier times in small communities where gossip and jurors' personal acquaintances with lawyers, witnesses and even the accused were not uncommon. Properly motivated and carefully instructed jurors can and have exercised the discipline to disregard that kind of prior awareness. Trust in their ability to do so diminishes when the prior exposure is such that it evokes strong emotional responses or such an identification with those directly affected by the conduct at issue that the jurors feel a personal stake in the outcome. That is also true when there is such identification with a community point of view that jurors feel a sense of obligation to reach a result which will find general acceptance in the relevant audience. (my emphasis)

...Because the penalty of death is by its very nature different from all other punishments in that it is final and irrevocable, the issue of prejudice raised by the present motions must include consideration of whether there is a showing of a predilection toward that penalty.

...Upon all of the evidence presented, this court finds and concludes that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state. The court also finds and concludes that an appropriate alternative venue is in the District of Colorado.

...In reaching this ruling, the court is acutely aware of the wishes of the victims of the Oklahoma City explosion to attend this trial and that it will be a hardship for those victims to travel to Denver.

....The interests of the victims in being able to attend this trial in Oklahoma are outweighed by the court's obligation to assure that the trial be conducted with fundamental fairness and with due regard for all constitutional requirements.

I see this as comparable to the "Boston Strong" community message. The risk that no juror will want to disappoint his or her community by voting "not guilty" or for life instead of death is too great. The trial needs to be moved, outside of MA.

That being said, I don't agree the grounds for Tsarnaev are stronger than those that existed for McVeigh and Nichols. The magnitude of the OKC bombing and the destruction it caused, as well as the number of direct and indirect victims, far exceeded that of the Boston Marathon. As Judge Matsch said in his change of venue ruling: "What happened on April 19 was the worst instance of terrorism and mass murder in American history."

The measurable effects of that event include the deaths of 168 identified men, women and children, injuries to hundreds of other people. the complete destruction of the Alfred P. Murrah Federal Office Building and collateral damage to other buildings, including the United States Courthouse. A damage assessment prepared for the Office of State Finance, The State of Oklahoma, estimated the total incident cost at $651,594,000.

Dzhokhar Tsarnaev likely will be convicted of participating in the bombings, wherever he is tried. The defense has not argued he wasn't there, he didn't do it. Its arguments are geared towards the penalty...life or death.

Only if the trial is fair, can we trust in the integrity of the verdict.It is imperative that Dzhokhar Tsarnaev receive a fair trial by an impartial jury which has not predetermined his guilt.

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  • Display: Sort:
    If they kept the trial in or near Boston... (none / 0) (#1)
    by unitron on Wed Jun 18, 2014 at 10:10:01 PM EST
    ...it probably wouldn't take more than a few years of voir dire to select a jury.

    Does the fact MA state law does not have a (none / 0) (#2)
    by oculus on Thu Jun 19, 2014 at 01:22:32 AM EST
    a death penalty as a possible punishment thought to mean MA jurors in a federal court death penalty case we be less likely to impose that penalty?