Jury selection is scheduled to begin Monday in the trial of Dzhokhar Tsarnaev, accused of the Boston Marathon bombings. Yesterday, hours after the trial court refused its most recent request for a continuance, the defense filed a petition for writ of mandamus with the First Circuit Court of Appeals requesting a change of venue, or in the alternative, an order compelling the trial judge to hold an evidentiary hearing on its change of venue motion. You can read it here. It also filed a motion in the trial court requesting that jury selection be delayed until the appeals court has ruled.
The petition makes several references to the ruling of Judge Matsch in the OKC bombing case of Timothy McVeigh and Terry Nichols (available here.) Judge Matsch rejected the Government’s arguments that a fair trial could be held outside of OKC, but still in Oklahoma. He ruled a fair trial was not possible anywhere in the state of Oklahoma, and moved the trial to Denver.
Judge Matsch’s ruling, which relied heavily on the community victimization issue, is well worth reading. (Also see my post on this here.) The same thing has happened in Boston. The Government in Tsarnaev’s case has even claimed that everyone in Boston is a victim. If so, how can anyone from Boston sit as a fair and impartial juror? Judge Matsch wrote:
…Because the penalty of death is by its very nature different from all other punishments in that it is final and irrevocable, the issue of prejudice raised by the present motions must include consideration of whether there is a showing of a predilection toward that penalty.
…Upon all of the evidence presented, this court finds and concludes that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state. The court also finds and concludes that an appropriate alternative venue is in the District of Colorado.
What about the victims who want to attend? Judge Matsch ruled:
In reaching this ruling, the court is acutely aware of the wishes of the victims of the Oklahoma City explosion to attend this trial and that it will be a hardship for those victims to travel to Denver.
….The interests of the victims in being able to attend this trial in Oklahoma are outweighed by the court’s obligation to assure that the trial be conducted with fundamental fairness and with due regard for all constitutional requirements.
Writs of Mandamus are not frequently granted. Even though I think the defense filing is very strong, I don’t think the odds are good.
The judge is rushing this case to trial. He does so at the peril of having any subsequent conviction and sentence reversed on appeal. Death is different, the Supreme Court has said, and death penalty appeals receive far greater scrutiny than do cases without death sentences. Every adverse ruling this judge makes will be scrutinized for error.
The judge has precluded the defense from putting on evidence and introducing expert reports on the venue issue. The central tenet of the due process clause is the constitutional right to be heard at a meaningful time. The prosecution opposes a hearing, and says he can include the venue issue in his appeal. That is not fair. If it’s hard to find an impartial jury now, it will be next to impossible for a retrial, should the case be reversed after he be convicted and sentenced. Everyone in the world would know he had been found guilty. The presumption of innocence would be destroyed. Asking jurors to ignore that another jury found him guilty is like asking them to put toothpaste back in the tube. Once it’s out there, there’s no going back
The trial judge in Tsarnaev also issued his “Decorum” order yesterday. You can read it here. While credentialed journalists can have “cell phones, PDAs, Blackberries, tablets, laptops, or other digital or electronic devices in the courtroom or overflow locations”, in a footnote it says they have to present a Mass. ID.
Members of the media . . . who present a District of Massachusetts ID card, together with two valid forms of identification, at least one with a photograph, are permitted to bring PDA’s, laptop computers, and cellular telephones into the courthouse for business use.
Does that mean out of state reporters can’t use them? This will really curtail our choices of who to follow on Twitter for live updates. He really should change that and make the rules the same for all credentialed media.