Metro

KEVIN CULLEN

Making the case for a change of venue in Tsarnaev trial

For the third time, lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev have asked US District Judge George O’Toole to move the trial out of Boston, saying there’s no way their client can possibly get a fair trial in the city where he is charged with leaving a trail of murder and mayhem.

This time, however, the defense is trying to hoist the judge on his own petard, using the answers from 1,373 prospective jurors who filled out questionnaires following instructions from O’Toole a couple of weeks ago.

Defense lawyers say they combed through the questionnaires and found that a whopping 68 percent of that jury pool “already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.”

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And again, the wiseguy in me says, “only 68 percent?”

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The defense isn’t laughing. Their pre-trial polling had found that about 58 percent of those living in Eastern Massachusetts thought Tsarnaev was guilty. The actual jury pool is less impartial, according to the defense review.

“Even more striking,” defense lawyers said in their motion, “69 percent of prospective jurors have a self-identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.”

This is all good empirical evidence, but Judge O’Toole’s determination to sit a jury in the very jurisdiction where Tsarnaev is accused of causing such carnage seems unshakable. He has repeatedly said he believes the voir dire process of questioning jurors for potential bias is enough to sit an impartial jury.

Worse for the defense, O’Toole was quite miffed that the defense quoted from the juror questionnaires in their motion and ordered it sealed. Not before a bunch of nosy nellies like me read it, though.

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Even before filing their motion on Thursday, defense lawyers, especially David Bruck, and to a lesser extent Miriam Conrad and Judy Clarke, had been sparring with the judge, suggesting his questioning of prospective jurors is too vague and not nearly vigorous enough to elicit signs of bias from those exposed to so much publicity in the case.

As Bruck put it Thursday, before the latest batch of 11 prospective jurors were questioned, the way that the judge has interviewed the jurors, asking them if they can suspend their preconceived notions about the case, is glossing over the potential for bias.

“So the question, ‘Can you put that aside?’ asks them to do a very sterile and meaningless exercise,” Bruck said. “What is happening here is not adequate and will not provide for a fair and impartial jury.”

He added, “We do contend this case can’t be tried in Boston. Nothing that has happened [during jury selection] has led us to change” our opinion.

Not surprisingly, prosecutor Bill Weinreb disagreed with Bruck’s opinion. More significant for the defense’s chance of pulling off a last-minute venue change, however, was Judge O’Toole’s reaction to the defense claims, and they were hardly agreeable.

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“It’s a problem we face commonly,” O’Toole said, referring to the difficulty of sitting jurors in a high-profile case. But he said his experience was that jurors can be examined about their “self-assessment” about being able to be impartial.

The judge said he has sat on or saw cases in which the jury returned verdicts against widespread expectations.

“We can keep debating this,” O’Toole said, in what appeared to be a subtle dig at the defense.

But he repeated a theme he has stressed throughout the five days of direct questioning of prospective jurors: lay people have a far different concept of the presumption of innocence than do lawyers.

As for preconceived notions shaped by publicity or human interaction, “There is no scientific way to answer how…a juror will stick to them or be open to alter them at trial. Can they do that faithfully, without requiring the defendant to prove he’s not guilty?”

The judge then seemed to answer his own question, telling Bruck, “I understand your view on it. I think the way we’ve been handling it is proper.”

That doesn’t sound like a guy ready to grant a change of venue.

Conrad then had a go.

“The focus of voir dire should be to probe the jurors’ preconceived notion of guilt,” she said, not simply to instruct them not to feel that way. “The goal of voir dire is not to extract a promise, or to order them to put aside their presumptions,” but to find the basis of those presumptions.

And, Conrad contends, the voir dire process under Judge O’Toole’s stewardship is failing at that.

In their motion, which O’Toole has yet to rule on, the defense attorneys were more adamant.

“Simply put,” they wrote, “the presumption of prejudice precludes both actual and apparent impartiality and undermines public confidence in the proceedings. The presumption cannot be overcome or cured. If this case does not warrant a change of venue, the entire body of law on venue as it relates to the Constitutional rights to due process and a fair trial will be left a hollow shell.”

After that motion was filed, Judge O’Toole questioned 11 more prospective jurors. A couple of them were excused because they might lose their jobs or benefits.

The wife of a Boston firefighter didn’t think she could keep an open mind on Tsarnaev’s innocence. A dental hygienist said she couldn’t impose the death penalty, no matter what. A young guy with purple hair said the same. A retired DPW worker from Reading was a mentor to the Cambridge cop who responded to MIT Police Officer Sean Collier’s murder. A lady who worked in a DA’s office was excused after she said she couldn’t consider a life sentence if Tsarnaev is convicted of intentional murder.

There was an art teacher who seemed to pass muster. Out of the 72 people questioned at the voir dire so far, over five days, I’d say she’s one of maybe less than 20 who have. With each side having 23 preemptory challenges, the judge will need to pick a minimum of 64 prospective jurors for the next cut. There’s a long way to go.

An overly optimistic O’Toole had initially said he hoped to hear opening arguments in the case on Monday. Yesterday, the court acknowledged that as unrealistic, and hoped to set a new trial start sometime next week. That might prove a tad optimistic, too.

Kevin Cullen is a Globe columnist. He can be reached at cullen@globe.com. Follow him on Twitter @GlobeCullen.