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 Colorado.

What about the victims who want to attend? Judge Matsch ruled:

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.

Writs of Mandamus are not frequently granted. Even though I think the defense filing is very strong, I don't think the odds are good.

The judge is rushing this case to trial. He does so at the peril of having any subsequent conviction and sentence reversed on appeal. Death is different, the Supreme Court has said, and death penalty appeals receive far greater scrutiny than do cases without death sentences. Every adverse ruling this judge makes will be scrutinized for error.

The judge has precluded the defense from putting on evidence and introducing expert reports on the venue issue. The central tenet of the due process clause is the constitutional right to be heard at a meaningful time. The prosecution opposes a hearing, and says he can include the venue issue in his appeal. That is not fair. If it's hard to find an impartial jury now, it will be next to impossible for a retrial, should the case be reversed after he is convicted and sentenced. Everyone in the world would know he had been found guilty. The presumption of innocence would be destroyed. Asking jurors to ignore that another jury found him guilty is like asking them to put toothpaste back in the tube. Once it's out there, there's no going back.

The trial judge in Tsarnaev also issued his "Decorum" order yesterday. You can read it here. While credentialed journalists can have "cell phones, PDAs, Blackberries, tablets, laptops, or other digital or electronic devices in the courtroom or overflow locations", in a footnote it says they have to present a Mass. ID.

Members of the media . . . who present a District of Massachusetts ID card, together with two valid forms of identification, at least one with a photograph, are permitted to bring PDA’s, laptop computers, and cellular telephones into the courthouse for business use.

Does that mean out of state reporters can't use them? This will really curtail our choices of who to follow on Twitter for live updates. He really should change that and make the rules the same for all credentialed media. (Update: No. A District of Mass ID card is apparently not a state ID card, but a card from the District Court. Thanks to the commenters below who pointed that out.)

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    This must be a hard decision (5.00 / 1) (#5)
    by itscookin on Fri Jan 02, 2015 at 06:15:28 PM EST
    for his lawyer. Most people here in Boston think he's guilty so it will be hard to seat an impartial jury. On the other hand, there aren't too many places in the country where the jury will be less likely to impose the death penalty than Boston.

    exactly (none / 0) (#7)
    by CST on Sat Jan 03, 2015 at 01:25:24 PM EST
    I can certainly see why the defense would feel differently, but MA may end up being his best bet if he actually wants to avoid the death penalty.  I'm pretty horrified that it's being sought - I get that it's a federal case - but there is a reason we don't have it here, we don't want it. Something the defense should possibly keep in mind:

    "Fifty-seven per cent of Boston residents want a sentence of life without parole for Tsarnaev, compared with 33% who would like to see him receive the death penalty, according to a Boston Globe poll conducted in September."

    I doubt he'll find stats like that elsewhere.


    Maybe a "District of Massachusetts ID" (none / 0) (#1)
    by Peter G on Thu Jan 01, 2015 at 04:42:06 PM EST
    (as opposed to a Massachusetts State ID) is something issued by the Clerk's Office of the U.S. District Court for the District of Massachusetts. If so, I still have no idea what it is, exactly, or how one qualifies to get one. Or why one would need two additional forms of ID to take a tablet, laptop or cell phone into the courtroom. As long as they are silenced and non-distracting, devices should be allowed to all other than jurors.

    Perhaps it is a reference to (none / 0) (#2)
    by Anne on Thu Jan 01, 2015 at 04:49:27 PM EST


    that gets filed with the Clerk's office of the United States District Court, District of Massachusetts, and seems to be for media only.


    that sounds possible (none / 0) (#3)
    by Jeralyn on Thu Jan 01, 2015 at 05:04:54 PM EST
    I hope you are right.

    Yes, think that is right (none / 0) (#4)
    by bmaz on Thu Jan 01, 2015 at 06:01:35 PM EST
    Marcy and I covered extensively the Perry Prop 8 case in CAND and I obtained a court issued credential for that purpose. We were both clearly not CA residents, so I think it is just registering and getting cleared appropriately at issue here.

    The First Circuit court of appeals (none / 0) (#6)
    by Peter G on Fri Jan 02, 2015 at 08:54:07 PM EST
    was closed today, for an extended New Years holiday. They could issue an emergency order on the mandamus petition at any time, however, including on a holiday, after hours, or over a weekend. I checked PACER (Case # 14-2362 in CA1) as of 9:45 pm Friday.  The government filed its answer yesterday, New Years Day, as ordered (well, a few hours later than was ordered, but the Chief Judge then allowed that). The defense asked to file a supplemental brief today, but was denied permission. The panel is Chief Judge Lynch, with Judges Howard and Torruella; two conservatives and a liberal. I would predict a ruling tomorrow (Saturday) sometime. No indication of a temporary delay of jury selection to allow a more considered process in the court of appeals, for example, at least so far.  (That was one possibility.)

    Defense motion denied (none / 0) (#8)
    by Peter G on Sat Jan 03, 2015 at 02:50:29 PM EST
    According to radio news I heard a little while ago. Here is the local newspaper update.

    I have a new thread up with links (5.00 / 1) (#11)
    by Jeralyn on Sat Jan 03, 2015 at 04:47:15 PM EST
    to the order here.

    Peter, is it common (none / 0) (#9)
    by Zorba on Sat Jan 03, 2015 at 03:46:44 PM EST
    for Courts of Appeal to give the government more leeway:

    The government filed its answer yesterday, New Years Day, as ordered (well, a few hours later than was ordered, but the Chief Judge then allowed that).

    than the defense?

    The defense asked to file a supplemental brief today, but was denied permission.

    Hardly seems equitable.
    And also I have to consider that the defense may be making a mistake in asking for a change of venue.  CST made a good case, see comment #7 on this thread.
    Massachusetts has basically spoken on the death penalty, even for someone like Tsarnaev.  And even though this is a federal case, they will have locals on the jury.


    To be fair, it is common for a court (none / 0) (#10)
    by Peter G on Sat Jan 03, 2015 at 04:17:10 PM EST
    to give either side permission to be a little late, if the lawyers say the time was needed to do a complete and professional job.  That's not equivalent to allowing one side to present an entire additional brief that was not initially contemplated. And despite my biases, I cannot say the federal courts give the government/prosecutors more slack in rule compliance than they give the defense; if anything, it's the opposite.
       As for an anti-death penalty jury in Massachusetts, the problem is that anyone with a strong categorical opinion against the death penalty can be excluded from the jury for bias in a capital case. So the jury that is selected will not be a true cross-section of Massachusetts viewpoints.

    Okay, thanks, Peter (none / 0) (#12)
    by Zorba on Sat Jan 03, 2015 at 04:48:59 PM EST
    But it does also seem to me that the government has not exactly been forthcoming with the documents they are supposedly required to turn over to the defense in a timely manner, as Jeralyn referenced in a previous post.

    "Only adequate preparation makes a fair trial possible," defense lawyers wrote in the filing responding to the prosecution's opposition to a trial delay. "But we face a situation where Mr. Tsarnaev is being afforded substantially less time to prepare than the vast majority of defendants in federal capital cases."

    Jury selection is scheduled to begin Jan. 5. The defense wants the trial postponed until September.

    The sheer volume of evidence requires a delay, the defense said, noting that just this month it received more than 19,000 pages of documents as well as spreadsheets and audio files.

    The lawyers said the prosecution has not handed over everything they have requested, including information that they believe may show that Tsarnaev was under the influence of his older brother, Tamerlan Tsarnaev, who was killed during a shootout with police days after the bombing.