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Ruling on pretrial publicity could aid Tsarnaev defense

In a decision that could provide a framework when it considers the case of Dzhokhar Tsarnaev, a federal appeals court in Boston on Monday ordered a new trial for a Puerto Rico man who had asked that his trial be moved because the jury pool had been tainted by pretrial publicity.

The decision by the US Court of Appeals for the First Circuit in Boston was one of only a few in the history of the federal judicial system that ordered a new trial because of pretrial publicity, according to legal analysts and the court’s own review of past cases.

The Puerto Rico case, which involves a murder committed by the well-known son of a judge, raised comparable arguments to what will be the focus of Tsarnaev’s appeal of his conviction in the Boston Marathon bombings, and his lawyers will want to argue that there is no difference between the cases, according to legal analysts and the parties involved.

Both cases claim that the potential jurors were so inundated with news media coverage of the crime that they could not be unbiased, so the trials should have been moved.


At issue in both cases is whether a trial judge can use a screening process — known as voir dire — to adequately filter out jurors who are biased. The appeals court in Boston said in its decision Monday that the voir dire in the Puerto Rico case was not sufficient to overcome the presumption that the local jury was too prejudiced to hear the case.

“The government has not met its burden to show [the defendant] was tried by an impartial jury,” the appeals court said in its 24-page decision.

In the voir dire selection process, prospective jurors attest that they can be impartial and weigh only the evidence in the case, not any outside factors. But the court cited past decisions that found a juror’s vow to be fair “can be given little weight” when so much media attention exists.


The court’s decision was based on facts specific to the Puerto Rico case, but it also provides an outline of how the court will consider the same issue in Tsarnaev’s appeal.

In Tsarnaev’s case, his lawyers argued that it would be impossible to pick a fair jury in the same city where the bombings occurred. US District Judge George A. O’Toole Jr. responded in several rulings that he was confident his jury screening process — which began with a pool of 1,373 potential jurors and lasted a month — could identify fair jurors.

Tsarnaev was convicted of the 30 charges he faced in connection with the April 15, 2013, bombings and was sentenced to death in June.

The federal district of Puerto Rico and the district of Massachusetts both fall under the regional appeals court of the First Circuit. Once an appeals court decides an issue, that decision is looked at as guiding law for the district.

“This case sets the architecture for other cases,” said Boston attorney Martin Weinberg, who handled the appeal in the Puerto Rico case.

David Hoose, a Northampton lawyer and one of the few in the state who specialize in death penalty cases, said that the appeals court will have to consider the facts specific to Tsarnaev’s case, but added that the decision on Monday “certainly has got to breathe some life into the Tsarnaev claims.”


“It’s a case that the appellate lawyers for Tsarnaev are going to be looking to, as a case where they can say ‘a court upheld the right to a change of venue where pretrial publicity is so overwhelming,’ ” he said. “What it comes down to is they want to show their case is like this.”

Tsarnaev has not yet appealed his death sentence to a higher court, since O’Toole himself is first considering a direct appeal of his handling of the trial. If O’Toole upholds the conviction, Tsarnaev’s lawyers will appeal to the higher court.

Tsarnaev’s lawyers have already said their argument to the appellate court would focus on their claim that it was impossible to select a fair jury when so many residents had some type of emotional or family connection to the bombings and had read and heard so much about the bombings in their social media feeds, on television, and in newspapers.

O’Toole has already rejected those arguments, saying the jury pool in Eastern Massachusetts was large enough for him to select unbiased jurors.

The Puerto Rico case will play into how the appellate court considers the question.

One of Tsarnaev’s lawyers, Timothy Watkins, attended the appeals court hearing for the Puerto Rico case in August.

The Puerto Rico case — “The O.J. Simpson trial of Puerto Rico,” as one lawyer called it — was based on the trial of Pablo Casellas-Toro, the son of a US district judge on the island. He had told federal authorities in June 2012 that he was the victim of a carjacking, and that two guns he had in his car were stolen. The next month, his wife was murdered with one of those guns.


He was subsequently charged in the murder of his wife and convicted in January 2014, and authorities had alleged that he staged the carjacking to make it appear as if his guns were stolen.

Eight days after his conviction, he was indicted in federal court on three counts of making false statements to a federal officer.

A week later, he was sentenced to 109 years in prison for his wife’s murder. He made his initial appearance in federal court the next day.

Weinberg argued to the appeals court during the August hearing that the federal judge in Puerto Rico refused to relocate the trial, in spite of concerns that the local jury pool had been too exposed to sensational coverage of the murder trial. The case had dominated media coverage there: Spectators at a baseball stadium, for instance, celebrated the conviction in the murder case when it was announced over a loudspeaker.

The defendant “would be relatively unknown outside Puerto Rico,” the appeals court found in its decision Monday. “Instead, he was tried [in that district], in an atmosphere that prejudiced the trial’s fundamental fairness.”

The Puerto Rico decision was handed down by three judges who are not officially part of the First Circuit. All of the judges who serve on the First Circuit recused themselves from the case, most likely because they would have had an appearance of a conflict of interest. They all work with Casellas-Toro’s father, a federal judge.


However, the court that will ultimately hear Tsarnaev’s appeal will still be bound by the guidelines of the Casellas-Toro decision, legal analysts say.

“It still becomes the First Circuit precedent,” Hoose said.

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