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Tsarnaev Defense Seeks Venue Change From Appeals Court

Jury selection is scheduled to begin Monday in the trial of Dzhokhar Tsarnaev, accused of the Boston Marathon bombings. Yesterday, hours after the trial court refused its most recent request for a continuance, the defense filed a petition for writ of mandamus with the First Circuit Court of Appeals requesting a change of venue, or in the alternative, an order compelling the trial judge to hold an evidentiary hearing on its change of venue motion. You can read it here. It also filed a motion in the trial court requesting that jury selection be delayed until the appeals court has ruled.

The petition makes several references to the ruling of Judge Matsch in the OKC bombing case of Timothy McVeigh and Terry Nichols (available here.) Judge Matsch rejected the Government's arguments that a fair trial could be held outside of OKC, but still in Oklahoma. He ruled a fair trial was not possible anywhere in the state of Oklahoma, and moved the trial to Denver. [More...]

Judge Matsch's ruling, which relied heavily on the community victimization issue, is well worth reading. (Also see my post on this here.) The same thing has happened in Boston. The Government in Tsarnaev's case has even claimed that everyone in Boston is a victim. If so, how can anyone from Boston sit as a fair and impartial juror? Judge Matsch wrote:

...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 Colorad