As jury selection enters its eighth day, attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev asked a federal judge – for the third time – to move the high-profile terror trial out of Boston.
In a one-page motion filed Thursday in U.S. District Court in Boston, defense attorneys cited the large number of prospective jurors who seem convinced Tsarnaev is guilty, even before the trial begins.
Tsarnaev is accused of setting off twin pressure-cooker bombs at the finish line of the Boston Marathon in 2013, killing three people and injuring more than 260 in the worst such incident on U.S. soil since the Sept. 11, 2001, attacks.
He faces execution if convicted.
The renewed bid for a change of venue comes hours after court officials announced that opening statements would be pushed back from Monday due to the slow-moving jury selection process.
“[Jury selection] is progressing, but in the interest of thoroughness is taking longer than originally anticipated,” court spokeswoman Ginny Hurley said in an emailed statement early Thursday. “It is not possible yet to specifically target a new start date.”
In Thursday’s motion, defense attorneys said 68 percent of the 1,370 prospective jurors already assume Tsarnaev is guilty, while 69 percent have a “connection” to the bombing, or have expressed loyalty to the city, victims and survivors.
"Great local prejudice will prevent a fair trial by an impartial jury in violation of Mr. Tsarnaev’s constitutional rights to due process of law and a fair trial,” the documents said.
Professor of Law at Suffolk Rosanna Cavallaro said the delay comes as no surprise.
“I don't think anyone thought this would be quick and easy," said Cavallaro. "This is the problem that we thought about in the abstract when the motion to change venue came up, but now we’re seeing it in the concrete. We speculated that people would have those kinds of personal experiences that might make it difficult to put together a jury.”
The fact that jury selection is dragging behind schedule speaks to two issues, said Suffolk University law professor Chris Dearborn - that jurors are being honest about their connection to the case - which is a positive thing - and also that it is “difficult if not impossible” to find anyone in Massachusetts who don't have a connection to the case.
“It's making a lot of the points for the defense that they need a change of venue, which should be given more serious consideration by the judge,” said Dearborn.
“They will likely keep going and at some point come up with what the judge is satisfied is an impartial jury,” said Dearborn. “But whether it is truly a constitutionally impartial jury is a different question. [Tsarnaev] would get a more fair trial somewhere else.”
A new proposed date for the start of opening statements in the case is expected to be released next week, the court said.
Change of scenery unlikely
U.S. District Judge George O’Toole has already rejected two bids by defense attorneys to move the trial, saying Tsarnaev has a fair shot at getting an impartial jury in Massachusetts.
Cavallaro said there is “zero chance” that O'Toole will finally crack and move the trial from Boston.
So why would defense attorneys even make a plea?
“That's what zealous advocacy is,” said Cavallaro. “You keep on sticking your head in the lion's mouth… A lot of what defense attorneys do is about process. They're focusing on every iota of process to which he is entitled because that's where they can get some traction.”