BOSTON — A lawyer for Boston Marathon bombing suspect Dzhokhar Tsarnaev pressed a federal appeals court Thursday to move his trial out of Massachusetts, citing "saturation publicity" about the case and the large number of people in the state who were personally affected by the deadly attack.
In arguments before the 1st U.S. Circuit Court of Appeals, federal public defender Judith Mizner said the local jury pool is "connected to the case in many ways" and cannot be counted on to be fair and impartial.
"This attack was viewed as an attack on the marathon itself ... and an attack on the city of Boston," Mizner told a three-judge panel of the appeals court.
Mizner said media coverage of the marathon continues unabated — nearly two years after the bombings — as news organizations cover the recovery of the victims. Three people were killed and more than 260 were injured when twin bombs exploded near the marathon finish line. Tsarnaev could face the death penalty if convicted.
Mizner said many of the prospective jurors who have been questioned individually by U.S. District Court Judge George O'Toole Jr. have cited close personal ties to the case, including a man who said his wife is a nurse who treated victims in an intensive care unit the day of the bombings.
If the trial is moved out of state, "people won't come to it with the same set of emotions and feelings," she said.
But Assistant U.S. Attorney William Weinreb said the judge has been conducting thorough questioning of prospective jurors to weed out people who have formed opinions on Tsarnaev's guilt. During that process, known as voir dire, the judge has provisionally qualified 61 people he believes are capable of being fair and impartial jurors. They will move on to the next stage of jury selection.
"The voir dire process is working," Weinreb said.
Judge Juan Torruella, the only judge on the three-judge appeals court panel to grant Tsarnaev's request for a hearing on the change-of-venue motion, peppered Weinreb with questions about the defense's claim that a large percentage of the 1,373 people called for jury duty in the case believe Tsarnaev is guilty.
Torruella quoted excerpts from juror questionnaires, including one from a prospective juror who wrote, "Why waste time on this guy? You know he's guilty." Another juror suggested a "public execution" of Tsarnaev by a bomb at the marathon, Torruella noted.
Weinreb said those excerpts, culled by Tsarnaev's lawyers, are not representative of the jury pool overall. He said that during individual questioning, prospective jurors who have strong opinions have "unhesitatingly admitted" them, allowing the judge to rule them out as jurors.
Mizner also argued that the trial move is needed to maintain public confidence in the judicial system.
Chief Judge Sandra Lynch noted that prosecutors have argued that asking the appeals court to intervene now and order the trial relocated would be an "extraordinary" move and that typically the trial location issue is raised on appeal after a trial.
"It's a little difficult to see what the irreparable injury is to the petitioner, or so the government argues," Lynch said.
The judges did not say when the court will issue its ruling.
Meanwhile, six more prospective jurors were questioned Thursday.
O'Toole has said that once 70 people are qualified as jurors, prosecutors and Tsarnaev's lawyers will be allowed to eliminate 23 people each for strategic reasons. A panel of 12 jurors and six alternates will hear the case.