BOSTON UPDATE: Tsarnaev Tries To Move Bombing Trial Again

Judy Clark, Dzokhar Tsarnaev’s lead lawyer.

Judy Clarke, Dzokhar Tsarnaev’s lead lawyer.

The Boston Marathon bombing is much more important than has been acknowledged, principally because it is the defining domestic national security event since 9/11—and has played a major role in expanding the power of the security state. For that reason, WhoWhatWhy is continuing to investigate troubling aspects of this story and the establishment media treatment of it. We will be exploring new elements of the story regularly as the January trial of the accused co-conspirator Dzhokhar Tsarnaev approaches.

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More than six months ago, WhoWhatWhy raised the issue of whether leaks by law enforcement to a cooperative media had already sunk accused Boston Marathon bomber Dzhokhar Tsarnaev’s right to a fair trial in Boston.

His legal team clearly had the same concerns, and in July asked the court to move the trial to another city. U.S. District Judge George O’Toole denied the motion in September. The defendant failed to show that the extensive media coverage had “so inflamed and pervasively prejudiced” the pool of potential jurors to render “a fair and impartial jury” impossible, the judge wrote.

Now, in a second motion for a change of venue filed Dec. 1, Tsarnaev’s legal team is arguing that the need to move the trial has grown more urgent, in part because of the continuing stream of news stories.

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“This coverage, including ‘leaks’ of non-public information attributed to law enforcement, has continued,” Tsarnaev’s lead attorney Judy Clarke wrote in the new motion. “The steady flow of reminders, whether factual or emotional, evoke memories of horrific events personally experienced by the prospective jurors in this case.”

The stream of stories will create a “story model” in the mind of potential jurors, in other words a “framework or theory of events through which subsequent information is filtered,” Clarke wrote.

Research has shown that people who have “developed a story model of the defendant’s guilt based on exposure to pretrial publicity will be less likely to consider evidence at trial in a way that conflicts with that previously-developed story of guilt,” she argues.

Clarke and her team noted that recent stories link Dzhokhar Tsarnaev and his dead brother Tamerlan to the 9/11 attacks and the group known as the Islamic State or ISIS. Already, there is a poll showing that nearly 60 percent of Bostonians believe Dzhokhar Tsarnaev is guilty.

Court-Created Fictions

Nonetheless, it is highly unlikely that O’Toole will agree to a change of venue.

Stephen Jones, the chief counsel for convicted Oklahoma City bomber Timothy McVeigh, put it this way: the judge could discount the evidence to the contrary and rule that “public opinion polls don’t matter.”

That’s how “courts create fictions to rubber-stamp outrageous conduct,” he told WhoWhatWhy. Jones has won half a dozen changes of venue in his career, and said the process has tightened up dramatically in the last three decades.

When F. Lee Bailey won a new trial for Dr. Sam Sheppard in the so-called “Fugitive” case in 1964, a federal appeals judge found numerous Constitutional violations connected with pre-trial publicity. The U.S. Supreme Court upheld that ruling two years later.

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Since then, Jones said, federal courts have tilted toward giving lawyers the widest latitude to question prospective jurors to avoid changes of venue.

Jury selection for Dzhokhar Tsarnaev is scheduled to begin on Jan. 5, drawing from a pool of about 1,000 people from eastern Massachusetts.

“They’re going to lose a lot of those who say they don’t want to do the death penalty,” Bailey, now 81 and working in Maine as a business consultant, said about the Tsarnaev trial’s selection process.

That could thin the pool of those potential jurors who are not prejudiced even further.

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17 responses to “BOSTON UPDATE: Tsarnaev Tries To Move Bombing Trial Again”

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  3. onetree says:

    The fact that this judge is not inclined to allow a change of venue will, I think, eventually make any “final” decision in this case illegitimate, in addition to unjust and outrageous. Not allowing a change of venue in this case negates the entire ideas of fair and impartial judges and anyone ever having a fair trial again. Anyone who believes in justice should be outraged. I find it extremely sad and pitiful that more than half the area’s population is convinced of guilt based on the flimsy, questionable, and completely outrageous “evidence” and “statements” by “officials.”

    Anyway, I’m sure this judge (along with the police department and other local officials) is fully on board with the “government’s” corrupt agenda in this case and those individuals would not want to try to get a different judge on board at this point. That would throw a large monkey wrench into their plan.

    • Crime Reporter says:

      But his “inclination” will be overturned on appeal, methinks.

    • Danielle Davito says:

      That’s assuming the court won’t deny him an Appeal.An Appeal is not ‘automatic’. His useless Attorneys would have had to have already filed the motion,a long time ago,anyway. Considering the fact that there was somehow a Default Warrant issued against him(Failure To Appear)in Middlesex County for the murder of Sean Collier,the court(s) have been doing pretty much anything they want.If you are already in custody,the Warrant Officer from another court(Middlesex) is supposed to pick up prisoners,and transfer them to their court of jurisdiction,and bring them before the Judge.Considering he was never officially arrested on the Federal charges,may be the reason for the Failure to Appear.The Middlesex Warrant was issued,after I contacted DOJ & Ortiz’s office,to point out that they had never arrested him.He agreed to Voluntary Detention during the ‘hearing’ at the hospital.Voluntary Detention is not arrest.If the Law was ‘actually’ followed,they would have to release him on the Federal charges;any & all evidence would be ‘nullified’ since an arrest was never made.But it’s not like they’ve been adhering to the law anyway.Ortiz,nor her office can legally try the case either;a change of venue is mandatory (which I also brought to their attention July 2013).It is a violation of Constitutional Law for a Prosecuting Attorney to be directly involved in the investigation of a crime,prior to the arrest of a suspect.Ortiz was all up in it, & the whole Office is ‘tainted’. They have violated every Due Process Law on the books.So,an appeal doesn’t look like it would be in the cards for him either.

    • Crime Reporter says:

      Oh, I realize an appeal isn’t automatic – I covered courts for newspapers for years (thus my user name). My point, while short, was that there are a myriad of things that an attorney well-versed in appeals will be able to run with just based on O’Toole’s rulings alone – let alone anything that happens during the trial. I also realize it will take some public advocating to ensure that these appeals are heard (and, yes, I too have wondered why his attorneys haven’t filed appeals on some of these issues – change of venue and scope of the investigation to start).

      Do you have a link to the failure to appear warrant? That seems ridiculous considering that he was in custody and in the hospital or another treatment facility when that hearing would have likely happened. That sounds like some inane and, frankly, stupid snafu between the federal and state courts, which happens often. I’d like to see that if you have it.

      Oh, and here’s the federal arrest warrant – this is the judge’s copy and not the signed version, but it shows an arrest warrant was issued. Perhaps it was never returned because he submitted to voluntary custody. http://a.disquscdn.com/uploads/mediaupload/tmp/3a65ca1e01343267c42c25f206a52cbb16228e1f216ea83631e34bc5/original.jpg

    • Danielle Davito says:

      No,I’m sorry.I just wrote some notes out on paper.The Federal arrest Warrant wasn’t originally in the paperwork.They drew it up after the fact,& slipped it in as though it were there the whole time.So you are a reporter?Do you have guts? If so I’ll share the info I have that proves beyond a doubt the Tsarnaevs didn’t do any of what they are being accused.My room is stacked with documents about the case.You do know that there are photos of a car blown to crap, right?High explosives were used,no pressure cooker bomb. Ammonium Nitrate/Nitromethane/ Nitrocellulous detonation.In a vehicle in an underground garage.That’s why they were searching a 15 block radius. That was no pressure cooker bomb.

    • Danielle Davito says:

      Maybe because they eat the same pig-slop out of the same trough.

    • Danielle Davito says:

      I also contacted DOJ & Ortiz to point out that the Hospital ‘confession’ is ‘null & void’.You can’t take a confession from someone that is all doped-up on opiates.They could have gotten him to confess to being on the ‘grassy knoll’ under those circumstances.A ‘boat confession’ suddenly materialized.They make it up as they go.The FBI ‘confessed’ just a few months ago,that they never actually found any evidence of bomb-making in Tamerlan’s Cambridge home,or any of their 3 cars.It sure did the trick on making Tamerlan look like a complete Monster.Caring so little for human life,they claimed,that he was building bombs with baby Zahira present.

    • Crime Reporter says:

      Do you mind my asking, but are you working on behalf of some group or organization? You mention that you’ve contacted the defense a few times and I wondered what your standing is. Are you reporting or are you a legal scholar/attorney with a human/civil rights group?

      No harm – just curious.

    • Danielle Davito says:

      Awwww,another one of my comments ‘kicked-off’.I guess I’m going to have to file a lawsuit;my First Amendment Rights are being violated.

    • Danielle Davito says:

      Tamerlan was tortured and died from ‘Dry drowning’ from being waterboarded.The ‘naked man’ video is definitely him.

    • Crime Reporter says:

      I apologize, but did you answer me and it wasn’t recorded?

      BTW, your First Amendment rights aren’t being violated on a privately-owned message board. That only applies to the public arena.

      So, I ask again: what is your standing when you contact them?

  4. NadePaulKuciGravMcKi says:

    what a kangaroo court for their manufactured patsy

  5. Patriarch says:

    The Halls of Injustice…

    • jane24 says:

      The word “injustice” is the perfect choice in this case! (Imho.) If the Tsarnaev trial remains in Boston, (which it likely will), this further emphasizes the fact that the “right to a fair trial”, in the US, is no longer a “right” at all. Shame on O’Toole, the presiding judge in this case, for allowing this debacle to continue and for failing to act to effectively address “leaks”, (if that’s what they are?), by le to the media. The premise of an “impartial judge” seems to have gone the same way as the once presumed “right” to a fair trial.

    • Danielle Davito says:

      I think it’s a little(a lot) too late to undo the constant onslaught of damaging information,much of which has been found to be completely fabricated by the FEDs.Equal airtime given to retractions would be a little more ‘fair’,but that isn’t going to happen,and would take 9+ months.I spoke to Carmen Ortiz’s people on the phone,back around July of 2013,pointing out that she cannot prosecute this case,legally anyway.It is in violation of U.S. Constitutional Law,for a Prosecuting Attorney,to be directly involved in the investigation of a crime, prior to the arrest of a suspect.Ortiz was all over it like stink on poo.The return response to my pose was,well,she isn’t prosecuting the case, assistant attorneys are.I said that is irrelevant;the whole office is tainted.I said a change of venue is called for.Assistant asked ‘to where?’.They have no remedy in place,because nobody has ever called them on it.I said ‘that is your problem’.No,it’s not a problem.Were going to try the case.Can you say Prosecutorial Misconduct?Not to mention,that D was never ‘officially’ arrested.’Voluntary Detention’ is not arrest.When I contacted them about this snafu,they rushed out and got the warrant for Collier’s murder.Not that it ‘covers’ the FED ‘arrest’.When I contacted DOJ about hospital confession being nullified,due to D’s opiate intake,a boat confession appeared a day later.It doesn’t matter tho,they have broken every Due Process Law on the books.I don’t know how these turds can sleep at night. Probably like babies;people without a conscience usually do.

    • Danielle Davito says:

      Oh,Judge Bowler presiding over Taz and Kads trial was unconstitutional as well.The Constitution is really just a suggestion anyway,isn’t it?

    • jane24 says:

      I agree that once detrimental info is put out there the damage is done. As you say, even retractions, (and no, that’s not going to happen), do not fully redress in such cases. In many other countries such pretrial publicity is illegal, as, I believe, it should be in the US.

    • Danielle Davito says:

      I printed up ‘Journalism Ethics and Standards’ principles,back in June,2013.What it outlines is much different than what is/has taken place.What does ethics mean?,duhhh…Apparently it is just a suggestion,just like the Constitution.It took 2-3 phone calls, in early 2014,threatening lawsuits,to ‘encourage’ FOX and CNN to lay off of the defamation.They suddenly stopped reporting on the case all together.If you can’t say anything nice…I’ve challenged Holder to a cage fight match numerous times.If I win,which I would,Dzhokhar must be immediately released and compensated handsomely for his trouble.If you (Holder) wins,I will do his jail time,or even be executed in his stead.Eric never did take the challenge(ha ha ha).