Federal prosecutors urged a United States appeals court Thursday to ignore alleged Boston Marathon bomber Dzhokhar Tsarnaev’s last-minute plea to postpone his trial, saying the case has been properly litigated and is prepared for Monday, the scheduled start date.
The prosecutors filed their arguments with the appeals court on New Year’s Day in response to an emergency effort the day before by Tsarnaev’s lawyers to have the trial moved to a district outside Boston. They argued it will be impossible to empanel a fair jury in the same city where the bombs exploded.
The defense lawyers asked the US Court of Appeals for the First Circuit to postpone jury selections set for Monday and to order that the trial be relocated.
The lawyers also asked that, in the alternative, the appeals court order US District Judge George A. O’Toole Jr. to hold an evidentiary hearing on “disputed issues of fact” related to their request for the trial to be relocated, before jury deliberations begin.
But government prosecutors said in their 26-page response Thursday that there is no need to relocate the trial, or postpone jury selections.
“While there has been a great deal of media coverage in this case, Tsarnaev has not shown, as the district court found, that that coverage has so inflamed and pervasively prejudiced the pool that a fair and impartial jury cannot be empaneled in this district of approximately five million people,” the prosecutors argued.
It was not immediately clear Thursday how the appeals court, which is closed Friday because of the holiday, will handle the emergency request by the defense team, or if it will hold a hearing. Chief Appellate Judge Sandra L. Lynch had ordered prosecutors to file their response by Thursday evening and had been monitoring the court filings.
O’Toole has not responded to a defense request to postpone the trial pending the petition before the appeals court. On Wednesday afternoon, he rejected the defense team’s second request to postpone the trial and to move it to another district. The defense team filed the appeal hours later.
Tsarnaev, now 21, faces the death penalty for allegedly 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, also allegedly shot and killed an MIT police officer before attempting to flee the area.
Tamerlan Tsarnaev was killed in a confrontation with police in Watertown on the Friday after the bombings.
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 publicity has only intensified since then, influencing the potential jury pool.
The lawyers’ emergency filing Wednesday was based in large part on their disagreement with the government’s interpretation of a study on pre-trial publicity that had been conducted by an independent consultant on behalf of the defense team.
The government’s prosecutors had argued that the study failed to show that media coverage of the case would influence a jury pool, and that the consultant’s review of media coverage was nothing more than an Internet search using Marathon related search terms. Many of the results of the search had nothing to do with the Marathon itself, the prosecutors argued.
The defense team disputed the government’s interpretation, and had independent analysts verify the methodology behind the consultant’s work. But O’Toole rejected a defense request that he further consider the consultant’s work or conduct an evidentiary hearing. He then rejected the request to relocate the trial.
Government prosecutors supported the judge’s decision in their filing Wednesday.
“The district court has crafted a thorough jury selection procedure that is designed to ferret out prejudice,” the prosecutors argued, adding that, “Tsarnaev’s suggestion that . . . the district court cannot find 12 or 16 or 18 who have not been prejudiced by pretrial publicity is not only unfair and highly speculative, it is itself damaging to the judicial system.