On the eve of his trial, lawyers for alleged Boston Marathon bomber Dzhokhar Tsarnaev asked a federal appeals court Wednesday to consider their request to move the case to another district, maintaining it will be impossible to pick a fair jury in Boston.
The lawyers also asked US District Judge George A. O’Toole Jr. to postpone jury selection, slated to begin Monday, until the appeals court can consider the request, saying it would be “in the interests of judicial economy and to ensure public confidence in the fairness of the proceedings.”
“The nature and extent of the impact of the Marathon bombings and related events, and the pretrial publicity engendered by those events, require a change of venue if Mr. Tsarnaev is to receive the fair trial by a panel of impartial, indifferent jurors, guaranteed by the United States Constitution,” the lawyers argued in a 39-page petition.
“A fair trial by an impartial jury — an unbiased tribunal — is an undoubted constitutional right,” the lawyers argued.
The petition asks the US Court of Appeals for the First Circuit to consider their change of venue request, or, in the alternative, to order O’Toole to hold an evidentiary hearing on “disputed issues of fact” related to their request. They asked that O’Toole also be ordered to reconsider their previously filed motions before jury selection begins.
The judge did not immediately respond to the request. Sandra L. Lynch, chief appellate judge for the First Circuit Court of Appeals, ordered prosecutors to respond to the petition by 5 p.m. Thursday.
Defense lawyers acknowledged in the court filings that it would be rare for an appeals court to intervene, but argued, “This is an extraordinary situation.”
The petition was filed just hours after O’Toole issued an order rejecting the defense team’s second change of venue request, as well as a new request to postpone the trial. The judge had not held hearings on the new requests and did not explain his decision, saying he will issue a written ruling at a later time.
The judge has said before that the defense team has failed to show that he cannot empanel a fair jury in Boston. His refusal to postpone the trial also comes after he had already postponed the trial from its initial Nov. 3 start date.
The defense team has still argued that the trial, scheduled to begin 18 months after Tsarnaev was indicted, will be on a faster track than 99 of the 119 federal capital trials since 2004.
Tsarnaev, now 21, could face the death penalty if convicted of setting off the bombs at the Marathon finish line on April 15, 2013, killing three people, injuring more than 260, and sending the region into a week of terror.
He and his older brother Tamerlan are also accused of shooting and killing an MIT police officer before attempting to flee the area.
Tamerlan Tsarnaev was killed during a violent confrontation with police in Watertown.
Dzhokhar Tsarnaev has been held at the federal prison at Fort Devens in Ayer.
O’Toole first rejected the request to move the case to another district in September. But Tsarnaev’s lawyers argued that the pre-trial publicity in the case has only worsened since then, and they have called on O’Toole to investigate law enforcement leaks of information to the media.
They have also submitted polling data showing residents in Boston are more inclined to favor the death penalty for Tsarnaev than residents in other districts. The defense team proposed moving the trial to Washington, D.C.
In the pleadings, the defense team noted that the Associated Press recently named the litigation in Tsarnaev’s case one of its top news stories of the year.
The lawyers also noted that Governor-elect Charlie Baker recently named Tsarnaev as the living person he “most despises” in a Globe column.
“These and other steady reminders, whether factual or emotional, accurate or inaccurate, can only evoke memories of horrific events personally experienced by prospective jurors in the case,” the lawyers argued, describing Boston itself as a victim of the bombings.
The lawyers noted that the Oklahoma City bombing trial was moved to another district in part because the community itself was seen as a victim.
“Every member of the jury pool is, in effect, an actual victim of the charged offenses,” the lawyers argued. “The trial, itself, is set to take place at the Federal Courthouse in Boston, less than two miles from the Marathon finish line.”