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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