By Scott Malone
BOSTON (Reuters) - Lawyers for the accused Boston Marathon bomber and federal prosecutors sparred in court papers on Tuesday over whether it would be possible to seat an impartial jury in the city where the deadly 2013 attack took place.
Two days before a three-member panel of the First Circuit Court of Appeals is to hear argument on a defense request to move Dzhokhar Tsarnaev's trial out of Boston, the two sides painted contrasting pictures of what they had learned through six weeks of jury selection.
Prosecutors contended that some 54 qualified potential jurors have already been picked for the trial, which could lead to Tsarnaev's execution if he is convicted. Defense lawyers said a large majority of the more than 1,350 candidates said they had already decided he was guilty of the attack that killed three people and injured 264.
U.S. District Judge George O'Toole has three times rejected the defense's request to move the trial.
"The widespread victimization created by the marathon bombings and their aftermath, coupled with the unrelenting publicity, both factual and emotional, from the time of the events to the present has produced a situation unparalleled in the District of Massachusetts," prosecutors wrote in a brief filed on Tuesday. "It is one of the rare instances in which prejudice can, and must, be presumed."
Jury selection continued in U.S. District Court on Tuesday, with O'Toole and lawyers for both sides working their way through potential candidates. More than 200 have already sat through in-person questioning.
Prosecutors said the fact that more than 50 potential jurors had already been qualified showed it would be possible to seat a jury.
"As empanelment proceeds, it becomes ever clearer that Tsarnaev's claims that a fair and impartial jury cannot be empanelled are unsupportable," the prosecutors wrote. "The relatively few jurors who believed that Tsarnaev was guilty and who could not set aside that opinion did not hesitate to say so, making it easy to filter them out."
In a heavily blacked-out brief, intended to comply with a judge's order not to reveal specific information about potential jurors, the defense said some 68 percent of the people who completed juror questionnaires said they had already formed an opinion that Tsarnaev is guilty. Twenty-five percent said they were unsure and just 5 percent believed that he was not guilty, defense attorneys said.
Even some of the qualified jurors admitted personal ties to the event. Tens of thousands of people were crowded around the finish line of Boston's best-attended sporting event when the bombs went off, and hundreds of thousands were ordered to remain in their homes four days later as police hunted for Tsarnaev.
The defendant, 21, also is charged with fatally shooting a police officer as he prepared to flee the city three days after the April 15, 2013, bombing along with his 26-year-old brother, Tamerlan.
Tamerlan Tsarnaev died later that night following a gun battle with police.
(Reporting by Scott Malone; Editing by Bill Trott and Mohammad Zargham)