When the courtroom for the Tsarnaev trial opened last Friday, the media crowd was expecting an indignant judge telling off the defense for their last – the third – motion for change of venue. The day before O’Toole had chided the motion, calling it “improper” because it allegedly revealed the identity of jurors and thereby damaging the process.

Michael Hayes:

expecting a bit of fire from Judge O’Toole, who’s angry re: yesterday’s defense motion

Alysha Palumbo:

The judge has not yet ruled on the defense motion to change the venue, but he did issue a scathing order on it last night

Mike Hayes:

Day 9 of Tsarnaev jury selection. Should start with an awkward conversation about confidential juror responses made public by the defense.

But minutes before the session started, a response filing of the defense already circulated: a motion to strike the word “improper”. The paper is a well reasoned and determined denial of any wrongdoing, especially when it comes to the revealing of IDs. The crowd was surprised.

Jim Armstrong:

Minutes ago, Tsarnaev’s defense team responded, asking judge to strike the word “improper”  from his filing, saying they did nothing wrong.

Mike Hayes:

Tsarnaev’s lawyers file a response to the judge’s criticism of their Change of Venue motion, calling it “unwarranted”;

J. M. Lawrence:

Tsarnaev defense fires back at Judge’s finding, say no damage done revealing anonymous quotes from juror questionnaires.Judge said improper

No wigging from the judge – the filings were not even mentioned at the session. The defense lawyers were very careful in formulating the motion. It exercises pressure on the judge, if he likes it or not. The answers of the potential jurors show that the necessity of a change of venue in order to constitute a neutral jury is obvious in the Tsarnaev case. David Bruck left no doubt that a refusal to move the trial out of Boston will lead to an appeal.

What’s up with judge O’Toole? Independent observers like E.F. Beall, James Henry or Harvey Silverglate have expressed deep discomfort with his onesided rulings. About a year ago, David Frank predicted a myriad of appeals and judicial complications if O’Toole would stick to his tight time schedule. But he did. The two months shift from November 2014 to January 2015 was little more than a cosmetic operation.

O’Toole’s next job is to pick a jury. Given his past behavior it is almost certain that the prosecution has his ear again in this important matter and the defense is impelled to fruitless gesticulations. This doesn’t bode well for the composition of the jury and will probably deliver more fodder for appeal.

So in all probability the trial will start in Boston with two or three weeks delay. O’Toole’s hope might be to go over the case details as quickly as possible. But he was probably not told by the prosecutors how weak their case actually is. If the cases collapses – because things turn out to be different and more awkward than written down in the indictment – this will also be a heavy blowback for Mr. O’Toole personally. His former decisions will be scrutinized and he has good chances to become the most prominent judge in recent history. But not in a way he will like.

 

Many thanks to pbszebra for preserving the tweets

woodybox

woodybox

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