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Killer’s appeal could guide Tsarnaev’s plan

Case from Puerto Rico also hinges on venue

Dzhokhar Tsarnaev, now 22,  is being held at the federal Supermax prison in Colorado.
Dzhokhar Tsarnaev, now 22, is being held at the federal Supermax prison in Colorado.

As Dzhokhar Tsarnaev appeals his death sentence, the case of a convicted murderer from Puerto Rico could pave the way for the Boston Marathon bomber’s most potent claim: that the trial should have been moved to another district because of a biased local jury pool.

No federal appeals court, nor the US Supreme Court, has yet decided a claim like Tsarnaev’s, but a three-member panel of the federal appeals court in Boston seemed receptive last week to a separate case that is the first to raise comparable arguments, according to legal analysts and the parties involved.

Both cases claim that their local jury pools were so tainted by pretrial publicity that jurors could not remain unbiased, so the trials should be moved. The appeals court’s look at the Puerto Rico murder case could provide insight into how it will handle the Tsarnaev appeal.

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In the Puerto Rico case, a man convicted of murdering his wife after a sensational state trial — “The O. J. Simpson trial of Puerto Rico,” as one lawyer put it — was tried again two months later in a federal court in the same district on charges that he lied to federal agents about some of the underlying crimes.

Boston lawyer Martin Weinberg argued before the three-member appeals court panel at a hearing Tuesday that the jury pool in the small federal district of Puerto Rico was so tainted by what the judicial system calls “toxic” publicity about the death that it was impossible to pick an impartial jury.

The trial judge in Puerto Rico still impaneled 12 jurors, 10 of whom had admitted to hearing extensively about the murder trial of Pablo Casellas-Toro, the millionaire son of a judge who had come to be despised by the community for the crime.

The victim, Carmen Paredes Cintron, was shot in their home in July 2012. A month earlier, Casellas-Toro told authorities he had been carjacked at a shooting range and the culprit took his guns, including the weapon believed to have been used to kill his wife.

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After the state murder conviction, the federal jury found Casellas-Toro guilty of all three counts of making false statements to federal agents about the carjacking, after less than a full day of deliberations.

“What can be more prejudicial than to know that a defendant, presumed to be innocent, was just sentenced to 109 years in prison?” Weinberg asked rhetorically during the hearing, saying the selection of the federal jury in Puerto Rico following the state trial would be no different than selecting a second jury for Tsarnaev after his initial death sentence had been publicized.

“This was toxic, the community was prejudiced, and the average juror would have had a hard time compartmentalizing the evidence,” Weinberg said.

Timothy Watkins, one of Tsarnaev’s lawyers, attended Tuesday’s court hearing as a spectator.

Last week, lawyers for Tsarnaev filed a motion to dismiss his conviction and hold a new trial, based mostly on their opposition to US District Judge George A. O’Toole Jr.’s refusal to relocate the trial outside of Boston. The motion was a standard filing for any criminal conviction, but the argument is bound to become the central part of what is expected to be a vigorous appeal.

Tsarnaev, now 22, was sentenced to death in June and is being held at the federal Supermax prison in Colorado.

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Before Tsarnaev’s trial began with jury selection in January, his lawyers maderequests identical to the Puerto Rico case to have the trial relocated, saying it would be impossible to pick a fair panel in the same city where the bombs had gone off two years earlier.

O’Toole rejected four requests to relocate the trial, maintaining that he could filter out jurors’ potential bias in what is known as voir dire — or in-person interviews to determine whether prospective jurors had developed a presumption in the case.

Federal judges generally are reluctant to move trials, citing inconvenience for the victims and other parties. The judges must consider constitutional requirements that a trial be held in the same community that was harmed by a crime.

From January 2012 through May 2015, federal judges approved 60 of 200 change-of-venue motions, and only one of them was attributed to potential jury prejudice, according to Thomson Reuters Westlaw, a legal research organization.

It is not unprecedented to relocate a trial, however.

The 1997 trial of Oklahoma City bomber Timothy McVeigh was moved to Denver. And in June, a federal judge in West Virginia agreed to move the trial of the Massey Energy chief executive charged in connection with the 2010 Upper Big Branch Mine explosion that killed 29 people.

In 2010, the US Supreme Court refused to order a new trial for former Enron chief executive Jeffrey Skilling, who argued that overwhelming pretrial publicity had tainted his case in Houston. In the decision, the court set a framework to help local judges decide whether a jury pool had a built-in presumption of a defendant’s guilt: Judges should look at the size of the jury pool, the extent and nature of the pretrial publicity, and the span of time between the alleged crime and the trial.

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In his rulings earlier this year, O’Toole said he was incorporating the Skilling framework in his decision to keep Tsarnaev’s trial in Boston.

“It stretches the imagination to suggest that an impartial jury cannot be successfully selected from this large pool of potential jurors,” the judge said in his initial ruling rejecting the request.

The appeals court will now look at the Tsarnaev case — as well as the Puerto Rico case — to determine whether the voir dire process is sufficient to filter out a jury pool’s presumption of a defendant’s guilt. Another legal question is whether the burden belongs to a defendant or a prosecutor to prove whether the voir dire process worked properly.

“There are some cases right now that are going to change the dynamic of how the courts will look at this issue,” said Daniel Medwed, a law professor at Northeastern University.

He said appeals courts are generally reluctant to overturn a judge’s decision unless a clear error is evident. But the influx of social media platforms and other new media, he added, have resulted an unprecedented risk of pretrial publicity.

“Voir dire is designed to filter out any potential bias,” he said, but “the question is, in very high-profile cases where there is almost overwhelming pretrial publicity, it becomes that much harder to filter that out.”

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He asked, “Where do we draw the line? Where is it too much?”

In Casellas-Toro’s case, which could be decided by the appeals court first, Assistant US Attorney Kirby A. Heller argued that a juror’s extensive knowledge about a case is not sufficient to assume that he or she has a bias that cannot be put aside.

“They all entered that jury box saying I don’t have an opinion about the defendant’s guilt, and whatever I know I can put aside,” she said. “It’s hard to imagine there could be a constitutional violation under those circumstances.”

But Appeals Court Judge Kent A. Jordan raised questions, saying, “The test seems to be . . . that it’s not just actual prejudice that matters, there’s some times where things are just so toxic you just presume there’s prejudice and that’s the end of the matter.”


Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.