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New trial location asked for Tsarnaev

Publicity again cited in petition

By Globe Staff 

Lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev have again asked a federal judge to move the trial, arguing that ongoing publicity is prejudicing the jury pool.

“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,” Tsarnaev’s lawyers argued in a court filing Monday.

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US District Court Judge George A. O’Toole Jr. rejected an earlier request to move the trial, saying Tsarnaev’s lawyers failed to show that an impartial jury could not be found. But Tsarnaev’s lawyers argued in their new motion Monday that the ongoing media coverage of the case and law enforcement leaks of non-public information to the media are further spoiling the jury pool.

“The Fifth and Sixth Amendment guarantees of due process and a fair trial by an impartial jury can only be effectuated if courts monitor new threats to the fairness of the proceedings as they arise,” the lawyers argued.

Tsarnaev, now 21, is slated to go to trial in January on charges that carry the possibility of the death penalty for his role in the April 15, 2013, bombings, which killed three people and injured more than 260. He and his older brother, Tamerlan Tsarnaev, also allegedly shot and killed an MIT police officer.

Tamerlan Tsarnaev, 26, was killed in a violent confrontation with police in Watertown while trying to flee the area.

O’Toole has said he plans to summon at least 1,200 potential jurors from Eastern Massachusetts for Dzhokhar Tsarnaev’s trial, beginning Jan. 5.

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The request for the change of venue would mean moving the trial out of Eastern Massachusetts; Tsarnaev’s lawyers have argued that too many potential jurors from this part of the state have been saturated by the ongoing media coverage of the case, including the coverage of the cases of three of Tsarnaev’s friends, who were convicted of lying to investigators.

“All of these media references serve to keep the Marathon bombings and subsequent events fresh and raw in the public consciousness,” the lawyers argued.

“The strong emotional and community response evidenced in the pretrial publicity demonstrates that potential jurors from the Eastern Division of the District of Massachusetts can only be presumed to feel a personal stake in the outcome,” the argued.

The lawyers submitted a survey by an independent consultant that found that 37 percent of the respondents from Eastern Massachusetts believe Tsarnaev deserves the death penalty, and 51 percent either attended or ran in the Marathon in 2013. The lawyers proposed moving the trial to Washington, D.C., where 19 percent of respondents said Tsarnaev deserved the death penalty, and 11 percent said they had participated or knew someone who participated in the Marathon in 2013.

In a separate filing Monday, Tsarnaev’s lawyers asked the judge to follow certain legal standards to determine whether a person’s views on the death penalty would be reason to exclude them as a potential juror.


Milton J Valencia can be reached at milton.valencia@globe.com