The dissenting judge:
Regardless of whom you want to blame, be it Tsarnaev for waiting until less than a month before trial to file his second motion for a change of venue or the district court for waiting until the 11th hour to issue its denial, such a rushed and frenetic process is the antithesis of due process. It is unrealistic at best to presume that there is no irreparable harm in having the jury selection and trial begin since there will be another opportunity to consider this matter in the future. Considering the time and cost commitment of composing a venire and conducting voir dire -- something both the government and the district court emphasize heavily -- once jury selection begins, it will not only cause irreparable harm to Tsarnaev, but it will also set an irreversible and unstoppable process in motion.
Thus, I strongly believe that a stay should have been granted to allow a full, fair, and reasoned analysis of this extremely important issue that goes to the heart of our constitutional guarantees of "an impartial jury" and "due process of law."
The majority opinion says the court had enough time to consider the issue, because the defense gave them a heads-up.
The judges in the majority regret the incorrect statement in the dissent suggesting that this matter has been under consideration for only six hours. The petition for writ of mandamus and emergency motion to stay jury selection and trial in the district court were filed on December 31.
However, counsel for petitioner provided notice in advance that the filing would be forthcoming. The court thereupon immediately began a careful and painstaking review of the publicly available filings on the district court docket. The government filed its response, and the district court issued its decision, in the midst of that ongoing review. The judges in the majority are satisfied that full consideration has been given to the issues raised by the petition, and it is clear that the petition falls far short of meeting the requirements for issuing the extraordinary writ of mandamus.
The requirements for mandamus, according to the majority:
[B]efore mandamus will issue, petitioner must satisfy burden of showing right to issuance of writ is clear and indisputable, that he has no adequate source of relief, and that equities favor issuance of the writ.
The order fails to explain why "it is clear that the petition falls far short of meeting the requirements for issuing the extraordinary writ of mandamus." All it does is criticize the dissenting judge. What other source of relief was available to him? Why don't the equities favor him? The majority doesn't say.
The District Court did not enter its findings on why it denied the second request for a venue until yesterday. The 12 page order is here.
In sum, the Court adheres to the reasons previously expressed in concluding that the defendant has not shown that a presumption of inevitable prejudice arises so as to support a change of venue.
The trial court, in its order yesterday, also explained how jury selection will proceed. 3,000 jurors have initially been summoned. They will get a questionnaire with 100 questions.
The questionnaire contains approximately 100 questions, and many of them are designed to determine the extent to which potential jurors have been affected in the ways in which the defendant is concerned. The questionnaire will be followed by oral voir dire examination of all prospective jurors who were not excused for cause based on the questionnaire alone. ....
... Indeed, the Court is implementing several protective voir dire procedures recommended by the defendant’s expert, Edward Bronson, in at least one case, including a comprehensive jury questionnaire, an expanded jury pool, individualized voir dire when indicated, and attorney input on the content of the voir dire.
Will the attorneys be allowed to question the jurors themselves?
[T]the Court anticipates itself primarily conducting the voir dire, counsel-led follow-up may be permitted as appropriate.
In federal court, the general rule is that the Court conducts voir dire, but many times judges grant attorneys a limited amount of time to question the jurors, especially in complex cases.
The trial judge writes:
The Court has confidence that a sufficient number of qualified, impartial jurors will be identified and ultimately sworn as jurors. Should the process of voir dire prove otherwise, the question of transfer can obviously be revisited.
