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Boston Bombing News: Trial by Media and the Change of Venue Question

Dzhokhar Tsarnaev’s lawyers are understandably concerned about their client’s trial by media, which to say the least, has been one of the most venomous in recent history.

The defense has asked for an extension of their deadline to file a motion for a change of venue. “Following consultation with an expert in the area of pretrial publicity and venue related issues, it has become clear that … it will be impossible to factually investigate whether a motion to change venue is warranted … and file an adequately briefed and supported motion by February 24, 2014.” They cite pretrial publicity and its effect on attitudes toward their client. “As just one example, the Attorney General is expected to announce his penalty decision by the end of January 2014. The media attention to that decision risks skewing public perception.” They note that they need to do research specifically on the effects of the publicity, including media circulation figures.

The response from US Attorney Ortiz contains the usual annoyed commentary on the defense’s slow pace. “Defense suggests a delay is required because every event which receives attention risks skewing public perception. [This is a] meritless argument.” They also state: “Other mechanisms are available to ensure that the defendant receives a fair trial in this forum … inspection of prospective jurors’ connection to the defendant … extensive screening questionnaire and voir dire.”

Is the point a moot one? I wonder if DT can get a fair trial anywhere in the United States. (Maybe in Puerto Rico?)

Ortiz quotes from a Nebraska legal decision: “Pretrial publicity – even pervasive, adverse publicity – does not inevitably lead to an unfair trial.”

Not “inevitably.” But, how often?

According to Wikipedia: “In the United Kingdom, strict contempt of court regulations restrict the media’s reporting of legal proceedings after a person is formally arrested. These rules are designed so that a defendant receives a fair trial in front of a jury that has not been tainted by prior media coverage.” Unfortunately we are not as civilized as the Brits in this regard.

US cable news occasionally does good investigative journalism. But they mostly feed us a steady diet of sensational entertainment which plays on the primal human emotions: fear, lust, prejudice, anger and hate.

I would guess that the bigger the underlying issues, the more difficult it is for a jury to be impartial. In the Tsarnaev case we have a narrative that may be even more inflammatory than the racially charged drama which the Zimmerman jury had to deal with.

A foreign Muslim has been accused of attacking a beloved American event. Unlike with Zimmerman, Fox and MSNBC agree on the underlying narrative in this one. “The virtuous USA must defend its freedom against evil foreigners.” In my day, it was Evil Commies. Now it’s Evil Muslims. We have bombers today instead of spies, which makes the Muslims Even More Evil (and gives us even better excuses to invade their countries).

The message is clear: anyone who dares to critically examine the evidence in this case is unpatriotic, anti-Boston, and probably anti-child. This seems like an enormous amount of pressure on any potential jury pool.

Is DT’s defense harboring a forlorn hope that, given time, public attitudes toward their client might become more sympathetic? There was sympathy for him at first, but many segments of the MSM worked hard to squash it. Interviewers prodded witnesses to express a higher level of anger at the bombers. Insulting “analyses” were written about fangirls and older women with motherly feelings. Attention was drawn to a nurse who felt embarrassed about her very human impulse to call him “hon.” Someone on the “liberal” side said, just last week: “Why do we have a death penalty, if it can’t be used on someone like him?”

The defense is right to be concerned about public opinion. It could also be that they are maneuvering to gain more time. I hope they are doing so because they want to give their investigators time to push through all the confusion and deception in this case, and bring us some truth.


On a slightly saner note: Here is a link to an interview with Bruce Geller on WBUR’s Morning Edition. He did a good basic rundown on the current status of the case. He brought in the Todashev issue and also mentioned Rep. Grassley’s probing questions to the FBI. He talked about the frustration experienced by journalists trying to get hard facts in this case. “If you ask local, they tell you to ask State. If you ask State, they tell you to ask the Feds.” It was at least a fair summary without any inflammatory language. 

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