Defense: Boston can't produce impartial jury at bomb trial

BOSTON — The public could lose trust in America's judicial system if Boston Marathon bombing suspect Dzhokhar Tsarnaev is tried only one mile from where the deadly bombs went off, his attorney argued Thursday at a change of venue hearing.

Defense attorney Judith Mizner told a First Circuit Court of Appeals panel that the entire region was too directly affected by the bombings — and too prejudiced against Tsarnaev — to produce an impartial jury in his death penalty case.

The federal appeals court could order the trial relocated, even though District Court Judge George O'Toole has ruled three times that Tsarnaev will be tried in Boston.

Chief Judge Sandra Lynch asked Mizner why the court shouldn't just wait for a district court verdict and sentence, and then consider all issues if either party appeals. Mizner answered that O'Toole has abused his discretion by forging ahead to find a jury in a region that felt collectively attacked on April 15, 2013.

"The main reason for reviewing it at this point in time would be public confidence in the judicial system," Mizner said. "Justice has to have the appearance of justice."

Tsarnaev is charged in a 30-count indictment that alleges he conspired with his late older brother, Tamerlan, to build and detonate two pressure-cooker bombs that left three people dead and more than 260 injured near the crowded finish line of the 2013 Boston Marathon.

He is also charged in the killing of Massachusetts Institute of Technology police officer Sean Collier, who died during the manhunt for the perpetrators. Tsarnaev, who has pleaded not guilty, faces the possibility of the death penalty if convicted.

At issue in the hearing was the integrity and trustworthiness of the federal judicial system, which in this case relies on one judge to question potential jurors and decide whether to move the case to another district. This "voir dire" process is currently winnowing down an initial pool of 1,373 potential jurors who filled out lengthy questionnaires last month.

When the government got its turn at the hearing, Assistant U.S. Attorney William Weinreb defended not only O'Toole's decision to keep the trial in Boston but also the system itself. He noted how some potential jurors have said they can't be impartial, while others have been convinced that they can separate preconceptions and hear the evidence.

"The voir dire process is working," Weinreb said.

But Appellate Judge Juan Torruella, who was the only judge to request the hearing, pressed Weinreb by raising questions about how jurors are being chosen. He said potential jurors might not be honest about their biases when sitting before a judge and attorneys because they might feel intimidated.

"One is more likely to get truthful answers to the written questions than from voir dire," Torruella said.

Torruella went further in a series of questions that referred to the content of juror questionnaires. O'Toole had rebuked defense attorneys for discussing juror responses in a public motion; he ordered their motion sealed. But Torruella said the content is already public information and quoted some examples.

" 'Why waste time on this guy? We know he's guilty,' " he read. Then another: " 'With this case, I think public execution would be appropriate, preferably by a bomb at the Marathon finish line.' "

Torruella dominated the questioning of Weinreb, asking nearly every question over 20 minutes while the other two judges listened. Then came a rebuttal from Mizner, who said even the most fair-minded jurors don't know how prejudiced they really are.

She noted how the bombings were portrayed in media reports as attacks on the city itself and the Marathon, which she said makes the whole region too wounded to produce fair jurors. She cited how cement trucks parked outside the courthouse have been emblazoned "Boston Strong" as a sign that everyone in the region feels personally affected.

"A juror might not even know at this point in time what is going to impact them once the evidence is presented," she said. If the trial were moved to Washington, D.C., as the defense has recommended, "you're not going to have people in Washington who say, 'Oh, my best friend was standing at the finish line,' or 'My wife who is a nurse treated people in the ICU.' "

Neither Lynch nor Judge Jeffrey Howard gave any indication that they were reconsidering their positions. Both had voted not to intervene earlier this month and to let jury selection continue. At least two of the three judges would need to vote for relocation if the trial is to be moved.

Because jury selection is nearing completion, the Appellate Court is expected to rule on the matter within a few days.