In ‘Extraordinary’ Move, Appellate Court Rules to Hold Hearing in Midst of Tsarnaev Trial
More than a month into jury selection, an appeals court ruling this morning indicates that there’s still a chance Dzhokhar Tsarnaev’s trial will be moved out of Boston, and perhaps, started all over again somewhere else.
Tsarnaev’s defense team has been persistent in attempting to move the trial out of the John Joseph Moakley Federal Courthouse, arguing that a jury selected from Eastern Massachusetts will inherently be biased and infringes on Tsarnaev’s right to due process.
Judge George H. O’Toole, Jr., has shut down all three of the motions filed by Tsarnaev’s defense team. The defense appealed his decision to the First Circuit Court of Appeals, and lost in a 2-1 decision. But now, after turning again to the appeals court with new arguments based on their findings from jury selection, they may have another shot to move the trial out of Boston.
This morning, the appeals court ruled to hear oral arguments from both sides in a hearing scheduled for next week. Former federal judge and Harvard law professor Nancy Gertner calls the move “extraordinary.”
“It’s very unusual to deal with issues in the middle of a trial before a conviction,” Gertner said.
Veteran defense attorney Martin Weinberg agrees the move is extremely uncommon and says the decision to hold a hearing provides some hope to the defense, but should not be overplayed. The hearing is being held at the request of Judge Juan Torruella, the lone dissenting judge in the first appeals decision. It only takes one judge to request an oral argument.
“The defense has the huge burden of persuading the second judge,” said Weinberg.
The court also ruled against holding the jury selection process until the appeals court makes a decision next week, ruling in favor of keeping sealed some materials related to the impending argument.
Torruella dissented the decision not to hold the selection process and to keep some materials sealed. “It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented,” Torruella said in his dissent.
Weinberg said the move to seal information during a hearing is not unprecedented, and lawyers will simply refer to various exhibits.
In the appeal, Tsarnaev’s attorneys wrote that, based on the results from the surveys more than 1,350 potential jurors filled out in the first phase of jury selection, more than 85 percent of the potential jurors already believe Tsarnaev is guilty, have a connection to the case, or both.
They also cited Charlie Hedbo attacks in Paris, a snow shoveler who cleared the Boston Marathon finish line in a recent blizzard and became a point of media interest, and a potential juror’s Twitter feed, who on April 19, 2013, the day Tsarnaev was captured posted, “WOOOOOHOOOOOO YOU GOT TAKEN ALIVE BITCH!!!!! DONT FUCK WITH BOSTON!!!!!.”
In turn, the prosecution has argued the jury selection process is working, and says that “the district court has so far found fair and impartial and otherwise qualified jurors” to sit for the case.
The number of qualified jurors the court has actually found is redacted in publicly available documents. The court will need to find a pool of about 70 jurors to choose a panel of 12 juror and six alternates. As of this morning, 173 potential jurors had been interviewed in the second phase of jury selection, voir dire.
Opening statements were initially scheduled for January 26, but the interview process is taking significantly longer than planned and has been further delayed due to snow. A new date for opening arguments has not been scheduled.
Tsarnaev is charged with bombing the 2013 Boston Marathon, murdering four people, and injuring hundreds of others. He faces the death penalty if convicted.