Tsarnaev Attorneys to Appeals Court: Public’s Faith in Justice at Risk

The argument fell on slightly new ears.

Dzhokhar Tsarnaev’s attorneys really don’t want try this case in Boston. Several times they’ve argued to Judge George H. O’Toole, Jr., that the jury will be inherently biased. Several times, he’s shot them down, claiming that the ongoing jury selection process is working.

According to a statement by the defense today, 61 potential jurors have passed the voir dire process, which means unless this whole process is called suddenly to a halt, the jury selection is nearly done. O’Toole will have to find about 70 people before the prosecution and defense whittle the pool down to a 12-person panel with six alternates.

Today, the defense’s argument fell on three sets of slightly new ears: Judge Juan R. Torruella, Judge Sandra L. Lynch, and Judge Jeffrey R. Howard, from the First Circuit Court of Appeals. The defense has previously appealed to the court in written arguments and lost, but this is the first time they’ve heard from both sides in person. Both sides had the opportunity to make 20-minute arguments, which were timed with a bell.

Walking into court this morning is evidence enough to move the trail, argued Judith Mizner, a public defender arguing for Tsarnaev, noting “Boston Strong” stickers on the cement mixers outside the courthouse.

Mizner argued residents from Eastern Massachusetts are “saturated” in prejudice and may not know the extent of their bias until the trial is already underway.

“We understand that this is an extraordinary remedy,” she said. “But we also believe this is an extraordinary case.”

When Lynch asked why Tsarnaev doesn’t simply appeal if he’s convicted and a juror is found to have lied about their potential prejudice, she answered that trying the case hurts not just Tsarnaev, but the judicial process itself.

“Justice has to have the appearance of justice,” she said. “It’s about the Sixth Amendment. … This is a law that is chiseled onto the wall of this building.”

The court has already ruled against moving the trial in a 2-1 decision, with Torruella dissenting, based on written arguments before jury selection began. Torruella was also the only judge to call for an oral argument.

Tsarnaev’s attorneys have to work to change either Lynch or Howard’s mind. If there is an upset, it will likely come from Howard. From the sound of her questioning today, Lynch wasn’t having it. “What’s next your point?” she asked, cutting off Mizner mid-sentence. Howard, on the other hand, left most of the questioning up to Torruella and Lynch.

Assistant US Attorney William Weinreb argued that not only is the jury selection process working, but that the appeals court doesn’t even have the legal right to get involved and second guess O’Toole’s decision.

Torruella pressed him. More than 1,300 potential jurors filled out a questionnaire in the first phase of jury selection. Sixty-eight percent of them wrote that they already thought the defendant was guilty, according to the defense. Many suggested that they already made up their mind to kill him if selected to serve.

“Can you provide a single example [in the First Circuit] where the answers to the questions are as prejudice as those against the defendant?” asked Torruella.

“Your honor, I cannot,” responded Weinreb.