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Judge denies Tsarnaev request for change of venue

A federal judge refused Wednesday to relocate the case of suspected Boston Marathon bomber Dzhokhar Tsarnaev to another state, scheduling a death penalty trial at the federal courthouse located only a few miles from where the bombs exploded on April 15, 2013 and shattered a New England tradition.

Dzhokhar Tsarnaev.AP

US District Court Judge George A. O’Toole Jr. agreed, however, to postpone the trial to Jan. 5 of next year, two months after the scheduled Nov. 3 date, meaning the trial could be playing out during the two-year anniversary of the terrorist attack.

O’Toole acknowledged in a 10-page decision Wednesday that the case has attracted significant, ongoing media attention, but said the defense team failed to show that the hype would prejudice a fair, impartial jury.


“The underlying events and the case itself have received national media attention. It is doubtful whether a jury could be selected anywhere in the country whose members were wholly unaware of the Marathon bombings,” the judge said.

“The Constitution does not obligate them to be,” he added, citing a past US Supreme Court ruling that found, “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

The rescheduling of Tsarnaev’s trial to January means the state could be watching two death penalty cases at the federal court in Boston at the same time – a rare occurrence in a state that does not carry a death penalty. The sentencing trial for admitted serial killer Gary Lee Sampson is slated to start in February.

Prosecutors and defense attorneys would not comment on the ruling Wednesday. The defense could still appeal the decision.

A spokesman for the family of Martin Richard, the 8-year-old boy from Dorchester who was killed and his parents and sister severely injured in the terror attack, also declined to comment.


Tsarnaev, now 21, faces the death penalty for his alleged role in the two bombings at the Marathon finish line that killed three people, injured more than 260, and cast a pall over a spring iconic event that attracts runners and watchers from across the globe.

He and his older brother, Tamerlan, 26, also allegedly killed an MIT police officer before attempting to flee the area. Tamerlan died in a violent confrontation with police in Watertown shortly after.

Tsarnaev, who suffered significant injuries including gunshot wounds before his capture, has been held at the federal prison in Fort Devens in Ayer. His lawyers, preparing to argue against the death penalty, have sought in court records to portray his older brother as the persuasive, dominating leader in the bombing conspiracy. Dzhokhar Tsarnaev had been manipulated into taking part, according to the defense team’s description.

A jury would have to decide in two phases of a trial whether Tsarnaev is guilty, and whether he should receive the death penalty.

In a separate issue Wednesday, O’Toole ordered Tsarnaev’s defense team to disclose more about its trial strategy to the government, agreeing that, “A criminal trial is not a poker game in which players can enjoy an absolute right always to conceal their cards until played.”

The defense had sought to move the trial to Washington, D.C., citing their own polls that showed prospective jurors in that district were less to likely to presume Tsarnaev should be executed. The lawyers argued that the Boston media market has saturated the potential juror pool with sensational stories, prejudicing the jury.


O’Toole ruled, however, that, “Although the media coverage in this case has been extensive, at this stage the defendant has failed to show that it has so inflamed and pervasively prejudiced the pool that a fair and impartial jury cannot be empaneled in this District.”

The judge cited a recent Supreme Court ruling that set a new, higher standard for relocating a trial to another district. In that case, the court refused to relocate a trial for former Enron Corporation executive Jeff Skilling.

Similar to the court’s findings in the Enron case, O’Toole found that the jury pool of 5 million people in Eastern Massachusetts is large enough to select a jury; he found that the 18 months since the bombings have been long enough to lower the “decibel level of media attention”; and found that the court has proven in recent years that it can successfully pick juries in high-profile cases.

The judge noted as examples the recent trials of gangster James “Whitey” Bulger, politicians John J. O’Brien and Salvatore F. DiMasi, and for the trial of Azamat Tazhayakov, one of Tsarnaev’s friends. He was convicted in July of lying to authorities and obstructing the investigation.

“The defendant has not proven that this is one of the rare and extreme cases for which a presumption of prejudice is warranted,” O’Toole said.

Seperately, the judge agreed to postpone the trial date based on the amount of evidence the defense team must review, but he refused their request to stay the trial until Sept. 1, 2015.


Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter @MiltonValencia