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1st Cir. Denies 2nd Tsarnaev Request for Change of Venue

By Mark Wilson, Esq. on March 02, 2015 | Last updated on March 21, 2019

Three times, attorneys for alleged Boston Marathon bomber Dzhokhar Tsarnaev asked a federal district court in Boston to change the venue for the trial, arguing that he couldn't get a fair shake in the city where the bombing took place in 2013. The district court denied his request, which meant the ball ended up in the First Circuit's court.

On February 27, a split panel denied Tsarnaev's petition for a writ of mandamus -- again -- acknowledging that "any high-profile case will receive significant media attention" but nevertheless concluding that Tsarnaev didn't meet the criteria for showing "clear and indisputable, irreparable harm."

An Extraordinary Remedy

Procedurally, this doesn't mean Tsarnaev can't ever challenge the court's decision. His lawyers sought a writ of mandamus ordering the trial court to change the venue of the case. Writs themselves are "extraordinary," and a writ of mandamus is even more extraordinary still.

Part of the problem with Tsarnaev's petition for a writ now is that the jury selection process isn't even over; the 60 or so jurors the court found to be impartial could still be dismissed at the peremptory challenge stage. "Importantly, if petitioner goes to trial without a change of venue now and is convicted, he will have the opportunity to raise a challenge based on lack of a fair and impartial jury on direct appeal," the First Circuit majority said.

This request to interrupt a still-ongoing process subjected Tsarnaev's request to "an even more exacting burden" than normal, given that the trial court is the master of fact-finding and determining credibility, and it hasn't even finished those jobs yet.

Couple that with the additional requirements for getting such a writ -- no other adequate source of relief and the balance of equities -- and you get a recipe for not issuing the writ. A large amount of press coverage, by itself, really isn't enough to disqualify jurors, and while a significant portion of the jury pool already believes Tsarnaev is guilty and should get the death penalty, a significant portion didn't say that. The First Circuit appears confident that the district court can assemble a panel made from the latter group.

Dissent: Presumption of Prejudice

Judge Juan Torruella dissented, claiming that not only the volume of press coverage, but also its tone, counseled that there should be a presumption of prejudice. Torruella cited news coverage, both national and local, portraying Tsarnaev in a negative light.

And if that isn't enough, Torruella said the process itself demonstrates how prejudicial the news coverage has been, given that the district court had to summon over 1,300 jurors, each of whom had to answer 101 questions. "The reason for this lengthy process is the pervasive prejudice permeating throughout the pool," Torruella explained.

With a request for a writ of mandamus to the U.S. Supreme Court not likely (even if it's likely, it won't be forthcoming), the prejudice of the jury pool will be just one of the many issues to populate Tsarnaev's eventual appeal.

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