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Dzhokhar Tsarnaev’s defense team again seeks new venue

A courtroom sketch shows Boston Marathon bombing suspect Dzhokhar Tsarnaev (center) during the jury selection process.
A courtroom sketch shows Boston Marathon bombing suspect Dzhokhar Tsarnaev (center) during the jury selection process.(Jane Flavell Collins/REUTERS)

Weeks into jury selection, lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev are asking a federal judge for the third time to consider moving the trial outside of Boston, saying a recent survey of prospective jurors shows they have an overwhelming bias that will make it impossible to seat a jury in the same city where the bombs went off nearly two years ago.

In the filing Thursday, the lawyers said questionnaires filled out by 1,373 prospective jurors from Eastern Massachusetts show that 85 percent of them either believe Tsarnaev is guilty, have some self-identified connection to the case, or both.

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“There is now no doubt that these emotions are deep, that they linger, and they are peculiar to and permeate the entire Eastern Division,” of Massachusetts, the lawyers argued, adding that 68 percent of the jury pool believes Tsarnaev is guilty “before hearing a single witness or examining a shred of evidence at trial.”

Additionally, 69 percent said they have a connection to the case or “expressed allegiance to the people, places, and/or events at issue in the case.”

US District Judge George A. O’Toole Jr. has twice rejected requests to move the trial, though he said he would revisit the request if he finds he can not seat an impartial jury. A federal appeals court refused to intervene on the eve of trial.

The third motion filed Thursday morning differed from the others because it was based on the answers that the 1,373 prospective jurors gave in the questionnaires they filled out over three days, from Jan. 5 to 7. Some jurors were struck from the pool based on their answers, while others are being questioned further in person.

O’Toole has expressed confidence he can seat a fair jury by establishing a thorough screening process, including individual questioning of prospects.

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But, the lawyers argued, “Rooting out the overwhelming prejudice . . . is a quixotic undertaking that cannot overcome prospective jurors’ powerful emotional connections to this extraordinary event.”

The lawyers submitted a sampling of some of the answers, including some that stated that Tsarnaev was guilty, that the trial is a waste of time and resources, and that Tsarnaev should be killed.

Some wrote they were at the Marathon finish, know someone who was injured, or they have connections to one of the three people who died in the explosions or the Massachusetts Institute of Technology police officer who was killed. Many acknowledged they donated money to victims, or purchasedbought Boston Strong merchandise.

Tsarnaev’s lawyers’ request argued, “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.”

Later, O’Toole sealed the defense lawyers’ motion to protect the privacy of the potential jurors. The judge said in an order that “the damage already may have been done by the defendant’s public filing of confidential material” — the potential jurors’ answers along with their assigned juror number. He did not rule on the request.

The judge has said he plans to continue questioning potential jurors until he finds roughly 60 to 70 people who are suitable to serve. When that happens, lawyers will have an opportunity to dismiss some of the jurors for strategic reasons before the judge seats a final panel of 12 jurors and six alternates. To date, it is not known how many potential jurors have been deemed suitable; 72 have been questioned in court.

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Tsarnaev, 21, faces 30 charges, 17 of which carry the possibility of the death penalty in connection with the bombing on April 15, 2013. Three people died and more than 260 were injured. Tsarnaev is also charged in the shooting death of an MIT police officer.

Separately Thursday, the court released a statement saying jury selections are “taking longer than originally anticipated,” and the slated Jan. 26 start of the case “is not realistic.”


Reach Milton J. Valencia at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.