The accused Boston Marathon bomber’s Hail Mary to change trial venue

BOSTON -- The federal judge overseeing the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev has found 61 of the 70 people needed for a suitable jury pool and predicted opening arguments would begin in the “near future.”

But on Thursday, Tsarnaev’s attorneys made a last-ditch effort to move the trial out of Boston, renewing their argument that it’s impossible to find a truly impartial jury in a city where so many residents were affected by the deadly 2013 attacks.

A three-member panel of the U.S. Court of Appeals for the First Circuit heard arguments on whether to move the high-profile trial out of Boston to a more neutral city like Washington, D.C. — a request that has already been rejected three times by the presiding district judge in the case, George O’Toole.

"Justice has to have the appearance of justice," Judith Mizner, Tsarnaev's court-appointed attorney, told the appeals court, adding there needs to be "public confidence" in the judicial system. She argued Boston-area residents have too many emotional and personal ties to the bombings to truly weigh the case against Tsarnaev fairly.

In January, the same appeals court declined to intervene in the case, voting 2-1 against Tsarnaev’s bid to delay or move the trial. But this time, the higher court agreed to hear oral arguments on the change-of-venue bid, offering the defense a slim opening in what is likely its final chance to stop the trial from happening in Boston. The court is expected to issue a written decision on the change-of-venue motion soon.

The pending decision comes as jury selection has dragged on for more than a month, delayed by a series of snowstorms that have hobbled the Boston area and by the fact that many prospective jurors individually questioned in the case say they already believe Tsarnaev is guilty or that they were somehow touched by the bombings.

Of the 1,337 Boston-area residents summoned for the trial, 68 percent of those called to serve already believe Tsarnaev is guilty, according to the defense, while 69 percent have a “self-identified” connection to the bombings, meaning they were affected or knew someone who was.

But federal prosecutors have accused the Tsarnaev team of cherry-picking answers culled from questionnaires prospective jurors filled out in January to present a “selective and misleading” picture of the jury pool. They argue that while many of the potential jurors said they had formed an opinion on Tsarnaev’s guilt, many have also said they can put aside those feelings and base their decision on evidence heard in court.

Yet one of the judges on the appeals court panel appeared skeptical of the prosecution's argument. Judge Juan Torruella quoted several inflammatory statements from the juror questionnnaires previously cited by the defense as proof that Tsarnaev that cannot recieve a fair trial in Boston.

"With this case, I think a public execution would be appropriate, preferably by a bomb at the finish line of the Boston Marathon," Torruella read from a questionnaire.

Torruella then asked William Weinreb, one of the federal prosecutors in the case, if he believed the large number of prospective jurors who are already convinced of Tsarnaev's guilt wasn't enough evidence of prejudice in the case.

In response, Weinreb defended the jury selection process, insisting the questionairres were proof that individuals called for duty were being "honest" about their pre-trial beliefs. He said the individual questioning of jurors, known as "voir dire," is successfully weeding out people who would be too biased in the case and again insisted that many of those who did have feelings about the case would be able to be fair.

"The voir dire process is working," Weinreb said.

Three people were killed and nearly 300 injured when two bombs were detonated near the finish line of the April 2013 Boston Marathon. Tsarnaev, 21, is accused of plotting and carrying out the bombings along with his older brother, Tamerlan, who was killed in a confrontation with police four days after the attacks. Tsarnaev faces the death penalty if convicted.

More than 200 prospective jurors had been individually questioned over 18 days as of Thursday. The court is trying to gather a pool of 70 “qualified” jurors — people who not only have not formed an opinion about the case but also would be willing to impose the death penalty. From there, the list would be whittled down by prosecutors and Tsarnaev’s attorneys to a panel of 12 jurors and six alternates.

On Thursday, Mizner told the appeals court that 61 jurors have been "provisionally" selected for the trial so far. That's an increase from last Friday, when O'Toole said he had picked 54 jurors for the case. O’Toole has declined to elaborate on the jurors he’s found acceptable for the trial so far. The judge has rejected repeated media requests seeking more public information about the selection process. While the jurors are anonymous, identified not by name but by number, O’Toole has refused to say who has been selected or excused from service and why.

It’s added to the mystery of what exactly defines “impartial” in a process where the judge and attorneys have sometimes seemed desperate to seat a jury, devoting significant time in recent days to questioning individuals who likely would be disqualified in other cases — including people who have insisted they can’t be swayed from their belief that Tsarnaev is guilty.

“I can’t unforget what I already know,” one prospective juror told the judge earlier this month.

But in a court filing Tuesday, ahead of the appeals hearing, federal prosecutors offered a glimpse into the makeup of the 54 jurors announced last Friday. Sixty-three percent said they have not formed an opinion on whether Tsarnaev is guilty, prosecutors said. The remaining 37 percent said they could “set aside their opinions and be impartial.” Fifty-two of the prospective jurors said they “had not formed an opinion” on whether Tsarnaev should receive the death penalty, while the remaining two said they could keep an open mind.

According to prosecutors, five of the jurors said they were personally affected by the bombings, while another 11 said they knew someone who had been. None said the connection would diminish their ability to be impartial about the case, they said.

“As empanelment proceeds, it becomes ever clearer that Tsarnaev’s claims that a fair and impartial jury cannot be empanelled are unsupportable,” Carmen Ortiz, the U.S. attorney in Boston, wrote in a court filing.

But in pushing to move the trial out of Boston, Tsarnaev’s attorneys have raised the question of the “unexpressed” bias among jurors. They argue the bombings and their aftermath — in which the entire city of Boston was locked down during the manhunt for the Tsarnaev brothers — has made every resident in the region a victim of the attacks. That “widespread victimization” and “the unrelenting publicity,” the defense argued in a filing Tuesday, makes it impossible to find anyone who is truly impartial.

“It is one of the rare instances in which prejudice can, and must, be assumed,” Mizner wrote in a pleading.

In a heavily redacted filing with the appellate court ahead of Thursday’s hearing, Tsarnaev’s attorneys criticized the voir dire process as “deficient,” “not consistently rigorous” and “so rife with prejudice” that it will not be enough to “ensure selection of an impartial jury.”

“The transcripts are so replete with jurors who maintain, in response to leading questions, that they aspire to be fair and impartial,” Mizner wrote. “But the record as a whole provides scant basis for confidence they will be able to do so.”