Trial venue change risky

Dzhokhar Tsarnaev.FBI/file

Dzhokhar Tsarnaev’s lawyers are doing somersaults and firing flares, trying to call attention to the fact that almost 58 percent of people they polled in Boston think their client, the accused Marathon bomber, is guilty.

Call me Pollyanna, but I’m shocked they were able to find the 42 percent who don’t think he’s guilty.

Stephen Jones is surprised, too, and his opinion matters a lot more than mine, because his experience as the lawyer for Oklahoma City bomber Timothy McVeigh is cited by Tsarnaev’s lawyers in their motion aimed at persuading US District Court Judge George O’Toole to move Tsarnaev’s trial from Boston to Washington.

When I told Jones that 58 percent of Bostonians think Tsarnaev is definitely guilty, he was surprised it wasn’t higher.

Jones didn’t poll after his client was charged with blowing up the federal building in Oklahoma City in 1995, killing 168 people, including 19 children, but if he had to guess, he believes few people in and around Oklahoma City hadn’t decided before trial that McVeigh was definitely guilty.

Jones thinks highly of Tsarnaev’s defense team, especially Judy Clarke, but is not persuaded that polling the bias of Bostonians is going to help Tsarnaev’s attorneys get the trial moved.

“I’ve not found any judges persuaded by polls,” Jones said. “We do them and make them part of the record. But I don’t think they’re particularly persuasive. The best argument his lawyers have is the demonization of the defendant in the Boston area. That was the stated reason in our case.”

In McVeigh’s case, even beyond the news media, Governor Frank Keating put forth “some ill-advised, prejudicial comments” about McVeigh, Jones said.

In contrast, Governor Deval Patrick was measured in his comments. That led some of Patrick’s political enemies to pronounce him too soft on Islamic terrorism. But Patrick’s restraint might be one of the reasons Tsarnaev doesn’t get his way.

Jones took exception to the Tsarnaev defense team’s suggestion that the impact was more profound than what happened to folks in Oklahoma City in 1995.

“The community impact here is even greater than that present in [the Oklahoma case], given that the bombings occurred at the Boston Marathon on the day thousands of Bostonians and others from the region gathered to celebrate the runners, the Red Sox, and Patriots Day,” his lawyers argued.

They said Bostonians worried about friends and relatives who might have been hurt, and everybody around the city was traumatized by the subsequent manhunt.

“If a change of venue was warranted in [the Oklahoma case], it is even more compelled by the facts presented here.”

Jones takes issue with that argument.

“Beyond the 168 dead, beyond the more than 500 injured, in Oklahoma there was far more devastation,” Jones said. “I wouldn’t belittle the suffering in Boston, but from a legal perspective, the magnitude was worse in Oklahoma City.”

More than 300 buildings were damaged or destroyed, nearly 100 cars destroyed, with some $800 million in damage. And, Jones said, you couldn’t find anybody in Oklahoma City who wasn’t touched.

“About 30,000 Oklahomans sought counseling after the bombing,” Jones said.

He is too collegial as a lawyer and too much a gentleman to state the obvious: comparing Boston and Oklahoma City, as Tsarnaev’s lawyers have done, is way beyond apples and oranges.

But, beyond that, he doesn’t get the defense obsession with getting the trial out of Massachusetts, which he called “one of the bluest states in the union.”

Nor would he want to try the case in Washington, as Tsarnaev’s lawyers want.

That said, he wouldn’t want to try the case in Boston, either. Jones succeeded in moving McVeigh’s trial to Denver, where he was convicted and sentenced to death.