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Dzhokhar Tsarnaev’s Developing Dilemma

A fascinating issue is emerging during jury selection in the Dzhokhar Tsarnaev trial.* The vast majority of the prospective jurors who have been questioned believe he is guilty. A few have expressed doubt regarding his role and responsibility, but not about his participation in the bombing. Under ordinary circumstances that would be terrible news for the defense and good news for the government.

Nevertheless, the government has a problem.

Very few of the prospective jurors believe in the death penalty.

That’s good news for the defense and bad news for the government because only the defendant can move for a change of venue. He is not likely to do that because opposition to the death penalty is highest in the Boston area.

The Sixth Amendment provides in pertinent part,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed   .   .   .

Since Tsarnaev has a right to be tried in the Eastern District of Massachusetts, the government lacks standing to move for a change of venue and the Court has no authority to order it.

Quite the dilemma. Boston is the last place on the planet where the defense would like to try the guilt/innocence phase of this case, but Boston probably is the first place where they would want to conduct the penalty phase.

I’ll bet they will stay in Boston and not renew their motion for a change of venue.

*I have been following Jim Armstrong on Twitter. He is covering jury selection for WBZ in Boston.

 

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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