Dzhokhar Tsarnaev’s defense team filed a motion in the First Circuit Court of Appeals on Tuesday evening seeking an order directing Judge George O’Toole to move the trial to another venue (location) because it’s impossible to seat a fair and impartial jury in Boston. The appellate court ordered the prosecution team to file a response to the defense motion by 9:30 am today.

This is the defense team’s third request for a change of venue. Judge O’Toole denied the first request before the trial started because he wanted to start individual voir dire (questioning prospective jurors individually out of the presence of the others) and take a wait-and-see approach to determine if it were possible to select a fair and impartial jury. Not surprisingly, the First Circuit upheld his decision. Appellate courts generally defer to a trial judge’s pretrial decision denying a motion for a change of venue.  But that was then and this is now, a month later. Jury selection is not going well because most of the 129 prospective jurors questioned by Judge O’Toole and the lawyers believe Tsarnaev is guilty. Many of them would impose the death penalty, if he is found guilty, because they believe in the death penalty. Others would not impose the death penalty, if he is found guilty, because they are opposed to the death penalty. Few believe he is innocent and most people have firm opinions about the death penalty. Nevertheless, Judge O’Toole persists in believing that a fair and impartial jury can be seated. He ignored a defense motion for a change of venue filed two weeks ago prompting the defense to ask the First Circuit to order him to grant the motion.

NBC News describes the defense motion and the government’s response this morning:

Prosecutors in the Boston Marathon bombing trial urged a federal appeals court Friday not to move the trial to another area. They were responding to a renewed request from Dzhokhar Tsarnaev’s defense team, which on Tuesday asked the First Circuit Court of Appeals for an order directing the judge to grant a change of venue. “An extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified ‘connection’ to the case, or both,” the defense said, based on its analysis of questionnaires filled out by the potential jurors.

In their reply, government lawyers say that figure is misleading. Jurors, who have little experience with trials or criminal law, “may interpret the word ‘guilty’ in a non-legal, commonsense fashion, to mean something more akin to ‘present’ at the events or ‘involved’ in them,” they wrote. “Those types of opinions are easily set aside once a juror is instructed that neither an arrest nor an indictment is evidence of guilt.”


I believe the trial must be moved out of Boston. If not, the refusal could constitute reversible error, if Tsarnaev is convicted and sentenced to death.

BREAKING NEWS UPDATE: Judge O’Toole denied the defense motion this afternoon stating the most recent attempt to move the trial has “even less, not more, merit than the prior ones.” The First Circuit Court of Appeals will now proceed to decide whether to grant the request.

Note: Judge O’Toole is attempting to form a pool of 60 – 70 potential jurors who have either been passed for cause by both sides or survived a challenge for cause by one of the parties. A challenge for cause is a request to dismiss a prospective juror because he or she cannot be fair and impartial or follow the court’s instructions. Jurors should be dismissed for cause, if they have decided Tsarnaev is guilty or, if he is convicted, they would automatically vote for the death penalty or life without parole without considering evidence offered in aggravation or mitigation. Judge O’Toole has dismissed some number of the 129 prospective jurors who have been interviewed. We do not know how many remain because Judge O’Toole has prohibited counsel and court personnel from disclosing that information. He wants a pool of 60 – 70 passed for cause before the parties exercise their peremptory challenges because each side has 20 peremptory challenges as to the 12 jurors who make up the jury and 3 challenges as to the 6 alternate jurors. Unlike a challenge for cause, the parties do not have to identify a reason for asserting a peremptory challenge. However, the Supreme Court of the United States (SCOTUS) has prohibited the use of peremptory challenges to selectively exclude people based on race, gender or religion. For example, the government cannot systematically exclude Muslims from the jury.

If the motion for a change of venue is granted, the trial could be moved to any federal district in the United States. In its first motion the defense asked for the trial to be moved to Washington, D.C.

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.