Judge delays Marathon bombing trial, won’t move it

BOSTON — The man allegedly responsible for more than a dozen lost limbs, hundreds of injuries and three deaths in the Boston Marathon bombings of April 2013 will be tried just one mile from where the two bombs went off.

This news is according to a ruling by a federal judge that came down Wednesday night, denying defendant Dzhokhar Tsarnaev’s motion requesting a change of venue.

Judge George O’Toole observed that the District of Massachusetts includes about 5 million people – enough, in his view, to impanel a jury and stage a fair trial.

As precedent, he cited the 2010 fraud trial of former Enron CEO Jeffrey Skilling, who was tried in Houston – a comparably sized metropolitan area – despite widespread local knowledge of the case and public hostility toward the defendant.

“The division includes Boston, one of the largest cities in the country, but it also contains smaller cities as well as suburban, rural, and coastal communities,” O’Toole wrote. “It stretches the imagination to suggest that an impartial jury cannot be successfully selected from this large pool of potential jurors.”

In the same ruling, O’Toole pushed back the trial’s Nov. 3 start date at the defendant’s request. The trial will now begin Jan. 5.

Prosecutors say 21-year-old Tsarnaev and his now-deceased older brother placed two pressure cooker bombs that exploded near the marathon’s finish line last year. Three people were killed and more than 260 were injured.

O’Toole considered other factors as well.

Influential media coverage can be a reason to relocate a trial, he noted, if it has created a presumption of prejudice against a defendant. But again citing Skilling v. United States, he found the defendant hadn’t shown such a prejudice exists in Boston.

“Although the media coverage in this case has been extensive,” he wrote, “at this stage the defendant has failed to show that it has so inflamed and pervasively prejudiced the pool that a fair and impartial jury cannot be empaneled in this District.”

Attorneys for Tsarnaev had petitioned to have the case relocated out of Boston on the grounds that eastern Massachusetts had overwhelmingly prejudged him to be guilty.

They commissioned a poll, which showed more than half of those surveyed in the Boston area deemed their client “definitely guilty.” By contrast, only one third of respondents in Washington, D.C. felt the same. They asked that the trial be moved to the District of Columbia, where they believed he’d get a fair trial

But O’Toole said the polling data and an accompanying analysis of newspaper coverage were not convincing. The response rate of three percent in the telephone poll was “very low,” he said, and such a small sample was not representative of the demographic distribution of the Eastern Division of the District.

“Those results do not persuasively show that the media coverage has contained blatantly prejudicial information that prospective jurors could not reasonably be expected to cabin or ignore,” O’Toole wrote.

O’Toole also clarified that the court system is not duty-bound to find a location where jurors have no knowledge of the case.

“It is doubtful whether a jury could be selected anywhere in the country whose members were wholly unaware of the Marathon bombings,” O’Toole wrote. “The Constitution does not oblige them to be. ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court’,” he said, citing the 1961 case of Irvin v. Dowd.

On the timetable, O’Toole delivered less than prosecutors had requested, which was for the trial to stay on its prior schedule. But he didn’t grant the defense team anything close to the 10 additional months that it wanted. The defense said it had been hard pressed to analyze all the documents that the government has produced, including some just released in recent weeks, and needed significantly more time.

O’Toole gave Tsarnaev’s lawyers just two more months to prepare, saying such a timetable is reasonable for such an experienced team and one that has outside resources at its disposal.

Boston area court watchers say Wednesday’s ruling makes an already-difficult case even tougher to defend.

The venue decision might increase the chances of a guilty verdict that later gets appealed, according to Michael Coyne, dean of the Massachusetts School of Law in Andover, Mass. But it also ensures a relativelyspeedy trial since a transfer would have added months, perhaps more than a year, to the schedule.

“The safer bet would have been to transfer it,” Coyne said. “But in this way, you are being considerate of the other interests at stake here, which are the rights of the victims to be able to attend the hearings and the rights of the witnesses, with some ease, to be able to come in and testify.”

While the delay gives defense attorneys more time, they also lose the prospect of having a trial in the holiday season, when juries might be more sympathetic to certain themes, in Coyne’s view.

“Virtually everyone is in better cheer as the holidays approach,” Coyne said. “They’re likely to play the family card and talk about the influence of the older brother. And it might have resonated more during the holidays as people start to think about family and the holidays.”

In a final blow to the defense, O’Toole said Tsarnaev’s lawyers will need to disclose by Dec. 15 which “mitigating factors” they plan to cite in the trial’s penalty phase. Thus if they’re planning to argue Tsarnaev was manipulated by his older brother, Tamerlan, they will need to lay out more of their cards for the prosecution to consider as the trial start date approaches.

Tsarnaev could face the death penalty if convicted.

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