In Re: Tsarnaev v. , 780 F.3d 14 ( 2015 )

United States Court of Appeals
For the First Circuit
_____________________
15-1170
IN RE DZHOKHAR TSARNAEV,
Petitioner.
__________________
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
__________________
Judith Mizner, with whom William W. Fick and the Federal
Public Defender Office were on brief, for the petitioner.
William D. Weinreb, with whom Carmen M. Ortiz, United States
Attorney, Aloke S. Chakravarty and Nadine Pellegrini were on brief,
for the respondent.
February 27, 2015
Per Curiam. Petitioner Dzhokhar A. Tsarnaev asks this
court to compel the district court to grant a change of venue
because of widespread pretrial publicity that he alleges has so
tainted the potential jury pool that he will be unable to receive
a trial before a fair and impartial jury in Boston. See generally
Second Petition for Writ of Mandamus. We deny the Second Mandamus
Petition because petitioner has not met the well-established
standards for such relief and so we are forbidden by law from
granting it.
The Supreme Court's admonition over a century ago is true
today:
The theory of the law is that a juror who has formed an
opinion cannot be impartial. Every opinion which he may
entertain need not necessarily have that effect. In
these days of newspaper enterprise and universal
education, every case of public interest is almost, as a
matter of necessity, brought to the attention of all the
intelligent people in the vicinity, and scarcely any one
can be found among those best fitted for jurors who has
not read or heard of it, and who has not some impression
or some opinion in respect to its merits.
Reynolds v. United States, 98 U.S. 145, 155-56 (1878).
Thus, any high-profile case will receive significant
media attention. It is no surprise that people in general, and
especially the well-informed, will be aware of it. Knowledge,
however, does not equate to disqualifying prejudice.
Distinguishing between the two is at the heart of the jury
selection process.
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Trials have taken place in other high-profile cases in
the communities where the underlying events occurred. After the
1993 World Trade Center bombing, which killed six and injured over
a thousand people and inflicted hundreds of millions of dollars in
damage, the six conspirators charged were each tried in the
Southern District of New York. The district court denied change-
of-venue motions in each case, the first less than a year after the
bombing. See United States v. Yousef, No. S12 93-Cr.0180, 1997 WL
411596, at *3 (S.D.N.Y. July 18, 1997); United States v. Salameh,
No. S5 93-Cr.0180, 1993 WL 364486, at *1 (S.D.N.Y. Sept. 15, 1993)
(finding less than a year after the bombing that a jury in New York
would be "willing to try this case with an open mind" and able to
"render a decision based solely upon the evidence, or lack
thereof," even if the jurors had heard of the bombing before).
After the conviction in Yousef, the Second Circuit affirmed.
United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003).
Indeed, after the September 11 terrorist attacks in 2001,
the prosecution of Zacharias Moussaoui was brought in the Eastern
District of Virginia, minutes by car from the Pentagon. The
district court denied a change of venue motion, and the Fourth
Circuit dismissed Moussaoui's interlocutory appeal. United States
v. Moussaoui, 43 F. App'x 612, 613 (4th Cir. 2002).
Further, the events here, like the 1993 bombing of the
World Trade Center and the September 11, 2001 attacks, received
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national and international attention. Petitioner does not deny
that a jury anywhere in the country will have been exposed to some
level of media attention. Indeed, his own polling data shows that,
in his preferred venue, Washington D.C., 96.5% of survey
respondents had heard of the bombings at the Boston Marathon.
The mandamus relief sought is an extraordinary remedy,
rarely granted, and has stringent requirements. To convince an
appellate court to intervene is to employ "one of the most potent
weapons in the judicial arsenal." Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 380 (2004) (citation and internal quotation
marks omitted). To compel the district court to change course, a
petitioner must show not only that the district court was
manifestly wrong, but also that the petitioner's right to relief is
clear and indisputable, irreparable harm will result, and the
equities favor such drastic relief. Id. at 380-81, 390. In the
case before us, we cannot say petitioner has met these onerous
standards and so relief must be denied.
I.
Petitioner is charged with multiple crimes arising out of
the bombings at the Boston Marathon on April 15, 2013, killing
three and injuring over 200. Some of these crimes potentially
carry the death penalty. On June 18, 2014, petitioner filed his
first motion to change venue claiming that pretrial publicity and
the attendant public attitudes were so hostile and inflammatory
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that a presumption of prejudice had arisen requiring that he be
tried in a different district. On September 24, 2014, the district
court denied the motion in a thorough and detailed order. In its
order, the court addressed the evidence used by petitioner in
support of his motion and, applying the standards set out in
Skilling v. United States, 561 U.S. 358 (2010), concluded that
petitioner had failed to demonstrate that pretrial publicity
rendered it impossible to empanel a fair and impartial jury in the
District of Massachusetts. Petitioner did not seek mandamus at the
time of the first motion's denial.
On December 1, 2014, petitioner filed a second motion to
change venue, arguing that the need for a change of venue had
become more acute because of continuing prejudicial publicity in
the media and alleged leaks of information by government sources.
On December 31, 2014, without waiting for the district court's
written decision on the second motion, petitioner filed his first
mandamus petition with this court. On January 2, 2015, while that
petition before us remained under consideration, the district court
issued its written decision on the second venue motion, noting that
the new motion did not raise any genuinely new issues apart from
those in the first motion and concluding that no presumption of
prejudice had arisen that would justify a change of venue. On
January 3, 2015, this court denied the motion to stay jury
selection and the first petition, concluding that petitioner had
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"not made the extraordinary showing required to justify mandamus
relief." In re Tsarnaev, 775 F.3d 457 (1st Cir. 2015).
Jury selection commenced on January 5, 2015, and
continues to date. On January 22, 2015, petitioner filed in the
district court his third motion to change venue in which he
asserted that the detailed and extensive questionnaires completed
by the 1,373 prospective jurors comprising the venire, combined
with the record of individual voir dire compiled to date, mandated
a change of venue because of pervasive bias and prejudgment
uncovered during that process. After petitioner filed this
Petition, the district court denied the Third Motion for Change of
Venue, in part for the reasons set forth in its earlier decisions,
and in part because "the voir dire process is successfully
identifying potential jurors who are capable of serving as fair and
impartial jurors in this case." United States v. Tsarnaev, No. 13-
CR-10200-GAO (D. Mass. Feb. 6, 2015). "In light of that ongoing
experience," the district court concluded, "the third motion to
change venue has even less, not more, merit than the prior ones."
Id. The court further maintained that "[c]oncerns about jurors who
have fixed opinions or emotional connections to events, or who are
vulnerable to improper influence from media coverage, are
legitimate concerns. The [c]ourt and the parties are diligently
addressing them through the voir dire process." Id.
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This court held a hearing on the Second Petition for
Mandamus on February 19, 2015, and allowed supplemental filings.
The Second Petition for Mandamus before us largely makes
the same claims and relies on the same types of data as the Third
Motion for Change of Venue which the district court denied.
Petitioner argues that a presumption of prejudice exists here
because aggregated data shows too many in the community and in the
jury pool have expressed the opinion he is guilty and that those
jurors have been affected by, or have connections to, the crime.
He claims the continuing media attention exacerbates these
problems. He argues that the judge erred in rejecting his claim
that presumed prejudice has been established. From this, he
argues, voir dire cannot succeed in finding a fair and impartial
jury. This is so, he argues, even if the trial judge after voir
dire qualifies a jury after determining the jurors so qualified to
be fair and impartial. At this point, the trial judge has not sat
a jury, but rather has identified over sixty provisionally
qualified jurors who are still subject to peremptory challenges.1
We conclude that petitioner fails to demonstrate a clear and
indisputable right to relief.
1
The parties have each received twenty-three peremptory
challenges, three more than required by the applicable rule. Fed.
R. Crim. P. 24(b)(1).
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II.
The writ of mandamus is a "drastic" remedy; given its
potential "to spawn piecemeal litigation and disrupt the orderly
processes of the justice system," mandamus "must be used sparingly
and only in extraordinary situations." In re Pearson, 990 F.2d
653, 656 (1st Cir. 1993) (citations and internal quotation marks
omitted). It is reserved for the "immediate correction of acts or
omissions" by the district court "amounting to an usurpation of
power." Id. (citation and internal quotation marks omitted).
Indeed, "mandamus is generally thought an inappropriate prism
through which to inspect exercises of judicial discretion," In re
Bushkin Assocs., Inc., 864 F.2d 241, 245 (1st Cir. 1989), and the
jury selection process involves some measure of discretion. "When
pretrial publicity is at issue, 'primary reliance on the judgment
of the trial court makes [especially] good sense.'" Skilling, 561
U.S. at 386 (alteration in original) (quoting Mu'Min v. Virginia,
500 U.S. 415, 427 (1991)). We are unable to conclude that the
district court's reasoned conclusion based on the facts and the law
in this case warrants issuance of such extraordinary relief.
A. The Mandamus Standard Applicable Here.
The intersection of two constitutional mandates lie at
the heart of resolution of petitioner's mandamus claim. First,
both Article III and the Sixth Amendment provide that a criminal
defendant shall be tried in "the State where the . . . Crimes . . . have
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been committed." U.S. Const. art. III, § 2, cl. 3; see also id.
amend. VI (right to trial by "jury of the State and district
wherein the crime shall have been committed").
Second, the Sixth Amendment "secures to criminal
defendants the right to trial by an impartial jury." Skilling, 561
U.S. at 377; see also U.S. Const. amend. VI. This right, ensuring
the defendant "a fair trial," has also been characterized as "a
basic requirement of due process." Skilling, 561 U.S. at 378
(citation and internal quotation marks omitted). In some
situations, these constitutional mandates may be in tension.
Notwithstanding the constitutional command that trials take place
where crimes are committed, the defendant's rights to an impartial
jury and a fair trial may require that in extreme cases the trial
be moved to a venue other than where the crime was committed. We
have described such cases as those where "there is an ever-
prevalent risk that the level of prejudice permeating the trial
setting is so dense that a defendant cannot possibly receive an
impartial trial." United States v. Quiles-Olivo, 684 F.3d 177, 182
(1st Cir. 2012).2 In those rare, extreme circumstances it may be
2
Rule 21(a) of the Federal Rules of Criminal Procedure provides
that "[u]pon the defendant's motion, the court must transfer the
proceeding against that defendant to another district if the court
is satisfied that so great a prejudice against the defendant exists
in the transferring district that the defendant cannot obtain a
fair and impartial trial there." "Generally, a presumption of
prejudice is reserved for those extreme cases where publicity is
both extensive and sensational in nature. Stated differently, Rule
21(a)'s requirements tend to almost exclusively apply in cases in
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"a denial of due process of law to refuse the request for a change
of venue." Rideau v. Louisiana, 373 U.S. 723, 726 (1963).
Importantly, if petitioner goes to trial without a change
of venue now and is convicted, he will have the opportunity to
raise a challenge based on lack of a fair and impartial jury on
direct appeal. Indeed, that is the customary mechanism by which
such challenges are presented and assessed. See, e.g., Quiles-
Olivo, 684 F.3d at 182-84.3
Instead of traveling that typical route, petitioner asks
this court for a writ of mandamus at this pretrial stage. And the
mandamus petition in this case is particularly unusual. It came in
the process of ongoing jury selection and is an attempt to prevent
a trial in this jurisdiction from going forward. Petitioner urges
this appellate court to intervene and halt that juror selection
process in the trial court. He does so despite the fact that, the
district court, sitting in the "locale where the publicity is said
to have had its effect," necessarily and properly under the law
draws on its "own perception of the depth and extent of news
which pervasive pretrial publicity has inflamed passions in the
host community past the breaking point." Quiles-Olivo, 684 F.3d at
182 (1st Cir. 2012) (citations, internal quotation marks, and
alteration omitted).
3
At oral argument, it was the position of petitioner that
denials of motions to change venue are reviewed for abuse of
discretion and that a clear abuse of discretion would give rise to
a clear entitlement to relief. Petitioner characterized "the
change of venue in this case" as being "at the heart of the Sixth
Amendment" right to trial by an impartial jury.
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stories that might influence a juror." Mu'Min, 500 U.S. at 427.
The district court has not yet completed that process, and we are
mindful that an appellate court's "after-the-fact assessments of
the media's impact on jurors . . . lack the on-the-spot
comprehension of the situation possessed" by the trial judge.
Skilling, 561 U.S. at 386; see id. at 378 n.11 ("[D]istrict-court
calls on the necessity of transfer are granted a healthy measure of
appellate-court respect.").
Because petitioner's venue claim "arises not on direct
appeal after trial but on petition for a writ of mandamus," it is
subject to "an even more exacting burden" than it would be on
direct appeal. In re Bulger, 710 F.3d 42, 45 (1st Cir. 2013).4
The petitioner must "satisfy the burden of showing that his right
to issuance of the writ is clear and indisputable." Id.
(citations, internal quotation marks, and alteration omitted).
That standard of review is extraordinarily deferential to the
ruling of the trial judge. In our cases, "mandamus has customarily
been granted only when the lower court was clearly without
jurisdiction, or exceeded its discretion to such a degree that its
actions amount to a usurpation of power." In re Recticel Foam
4
For purposes of this opinion, we will assume that the
petitioner can prove his argument that the district court's denial
of the pretrial Third Motion for Change of Venue is subject to
mandamus review at all, see In re Kouri-Perez, 134 F.3d 361 (1st
Cir. 1998) (unpublished per curiam), though not all circuit courts
agree.
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Corp., 859 F.2d 1000, 1006 (1st Cir. 1988) (internal quotation
marks, citations, and alteration omitted). As we explain below,
neither of those conditions is true here.
In addition to overcoming the daunting first requirement,
petitioner must also meet two other standards. First, he must
demonstrate that he has no other adequate source of relief; in
other words, he must show irreparable harm. In re Bulger, 710 F.3d
at 45 (citation omitted). This condition is "designed to ensure
that the writ will not be used as a substitute for the regular
appeals process," Cheney, 542 U.S. at 380-81 (citation omitted),
which, as we have noted, remains open to petitioner after trial
should he be convicted. Petitioner does not rely on an argument
that he will suffer irreparable injury, but argues a failure to
accept his argument is so obviously wrong, the irreparable injury
is to the reputation of the federal judicial system. And, second,
"a petitioner must demonstrate that, on balance, the equities favor
issuance of the writ." In re Bulger, 710 F.3d at 45.
Together, these standards mean that, when considering a
petition for the extraordinary writ of mandamus, an appeals court
is bound to employ an extraordinarily deferential form of review.
Relief may be allowed here only (1) if it is clear and indisputable
that the district court erred in denying petitioner's Third Motion
for Change of Venue, (2) petitioner would suffer irreparable harm
if the district court were not ordered to change venue, and (3) the
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equities clearly favor the petitioner. See id. at 45-46. These
onerous standards have not been met here.
B. It is not Clear and Indisputable that Pretrial
Publicity Requires a Change of Venue.
We are bound by the Supreme Court's decision in Skilling,
a case in which the venue question was examined after conviction.
This case, by contrast, is an attempt to force a trial judge to
change venue despite his findings that no presumption of prejudice
has arisen, and that there are jurors provisionally qualified to
date5 capable of providing defendant with a fair trial. Skilling
involved the criminal prosecution of Jeffrey Skilling, a former
Enron executive, for certain crimes committed prior to Enron's
much-publicized collapse which badly harmed the city of Houston.
Skilling twice moved to change venue from Houston, Enron's home
city, and the district judge denied both motions.6 After Skilling
was convicted of some, but not all, of the charges against him, he
appealed, asserting, inter alia, a fair-trial claim which
encompassed two questions: first, whether the district court erred
by failing to move the trial to a different venue based on a
5
The "provisionally qualified" jurors are still to be subject
to peremptory challenges.
6
Skilling first moved for change of venue four months after he
was indicted; he renewed the motion three weeks before trial,
shortly after a co-defendant pleaded guilty. See Skilling, 561
U.S. at 369, 372. Skilling's trial did take place without changing
venue and his claims were thereafter considered and rejected on
direct appeal.
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presumption of prejudice and, second, whether actual prejudice
contaminated the jury which convicted him.
The Supreme Court first surveyed and distinguished its
earlier cases, including Rideau v. Louisiana, 373 U.S. 723 (1963),
and discussed the differences between those cases and Skilling.
The Court then discussed several considerations that informed its
conclusion that the publicity in Houston had not produced a
presumption of prejudice. First, the Court examined the size and
characteristics of the community in which the crimes occurred. Out
of Houston's population, 4.5 million people were eligible for jury
service, a much greater number than the small area the Court
considered in Rideau. Second, while there was a widespread
community impact from the crimes, Skilling held that with careful
identification and inspection of prospective jurors' connections to
Enron, a jury with non-existent or attenuated links to Enron could
be seated. The Court considered the "widespread community impact"
of Enron's failure and the guilty plea of a co-defendant shortly
before trial, and concluded in each instance that the "extensive
screening questionnaire and follow-up voir dire were well suited"
to the task of identifying and inspecting the possible effects of
these influences. Skilling, 561 U.S. at 384-85. Third, while the
press coverage of Skilling was "not kind," the Court found it
significant that the news stories about him "contained no
confession or other blatantly prejudicial information of the type
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readers or viewers could not reasonably be expected to shut from
sight." Id. at 382. Fourth, the Court noted that several years'
time passed between Enron's collapse and Skilling's trial during
which the "decibel level" of media attention dropped. Id. at 383.
Considering all of these factors, the Court held that no
presumption of prejudice arose and that the district court did not
violate constitutional limitations in declining to change venue.
Id. at 385.
It is apparent that petitioner cannot meet the high bar
set for mandamus relief, based on the parties' submissions and the
parts of the record the parties have relied on in their arguments
to us. Petitioner argues that the bombings have so impacted the
entire Boston-area community that we must presume prejudice for any
jury drawn from the Eastern Division of Massachusetts.7 Yet his
own statistics reveal that hundreds of members of the venire have
not formed an opinion that he is guilty. The voir dire responses
have confirmed this. Petitioner's selective quotations from the
7
We have a different view than the dissent's description of the
courthouse and its environs. While jury selection has been going
on there was not a courthouse view of a dump truck or a view of a
construction site showing a Boston Strong banner. Presumably the
dissent is referring to a photograph taken of a banner on a
partially constructed building from early 2014, which has not been
present during jury selection in 2015. Nothing can be seen from
the courthouse of any banner at this time. Nor has the petitioner
claimed that any members of the jury pool present at the courthouse
were exposed to the cement mixer on the single day it was present
in the area. Even if these assertions were true, that does not
show presumed prejudice of any sort.
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sealed materials are, as the district court said, misleading. Our
own review of those materials shows that the district court is in
fact identifying provisionally qualified jurors with no or few and,
at most, attenuated claimed connections to the bombings.
Boston, like Houston in Skilling, is a large, diverse
metropolitan area. Boston-area residents obtain their news from a
vast array of sources. By contrast, in Rideau, a 1963 case from
Louisiana, the Court found it was a denial of due process to have
refused a request for change of venue where at least 50,000 people
in an area of 150,000 saw the video of a staged interview by the
Sheriff resulting in a "confession" by defendant, who had not been
advised of his right to counsel. 373 U.S. at 724-26. The Supreme
Court characterized this as a "kangaroo court." Id. at 726.8
While there has been extensive publicity in this case,
the atmosphere here is not to be characterized as disruptive to the
ability of the petitioner to be adjudged by a fair and impartial
jury. This case is in sharp contrast with Estes v. Texas, 381 U.S.
532, 536 (1965), where pretrial publicity and the televising of
proceedings in a notorious criminal case resulted in setting aside
the conviction despite absence of showing of prejudice. This case
is unlike the atmosphere of "bedlam," in Sheppard v. Maxwell, 384
U.S. 333, 355, 363 (1966), where the trial judge did not fulfill
8
Indeed, the Court relied on prior cases in which so-called
"voluntary confessions" were extracted by brutal force. Rideau,
373 U.S. at 726.
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his duty to protect a murder defendant from inherently prejudicial
publicity which saturated the community or to control disruptive
influences in the courtroom during trial. Nor is this case marred
by the repeated broadcast of a defendant's questionable taped
confession two months before trial in a small area of 150,000
people, as in Rideau, 373 U.S. at 724. As petitioner's counsel has
admitted, there is no confession at all here. Indeed, much of what
petitioner calls "publicity" consists of factual news media
accounts of the events of that period. The publicity petitioner
has received, while "not kind," Skilling, 561 U.S. at 382, has not
been of the grossly prejudicial character that attended Rideau.
The nearly two years that have passed since the Marathon
bombings has allowed the decibel level of publicity about the
crimes themselves to drop and community passions to diminish. See
Patton v. Yount, 467 U.S. 1025, 1034 (1984). It is true that there
has been ongoing media coverage of the advent of the trial and
petitioner's pre-trial motions, both locally and nationally. But
that would be true wherever trial is held, and the reporting has
largely been factual. These factors persuade us that petitioner
has not demonstrated a clear and indisputable right to relief based
on a presumption of prejudice from pretrial publicity.
Petitioner's heavy reliance on Irvin v. Dowd, 366 U.S.
717 (1961), does not assist him. The facts are very different.
Irvin must also be understood in light of later caselaw such as
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Skilling and Patton. In Irvin, a state habeas case, the defendant
was suspected of committing six murders near Evansville, Indiana.
He was arrested and thereafter a barrage of highly personalized
publicity "was unleashed against him during the six or seven months
preceding his trial," id. at 725, including a statement by the
police and prosecutor that he had confessed to all six murders.
Id. at 719-20. Indeed, many of the press references described the
defendant as the "confessed slayer of six, a parole violator and
fraudulent-check artist." Id. at 726 (internal quotation marks
omitted). In addition to the reported confession, there were
stories about Irvin's criminal history, his police line-up
identification, that he faced a lie detector test, and that he had
been placed at the scene of the crime. The press reported Irvin's
"offer to plead guilty if promised a 99-year sentence, but also the
determination, on the other hand, of the prosecutor to secure the
death penalty, and that petitioner had confessed to 24 burglaries
(the modus operandi of these robberies was compared to that of the
murders and the similarity noted)." Id. at 725-26. The very day
before the trial, the newspapers reported that Irvin had admitted
to all six murders. Id. at 726.
After venue was moved to an adjoining county for his
trial on one murder charge, the voir dire commenced only eleven
months after the murder was committed and eight months after he was
arrested and confessed. In that very small community of 30,000, in
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which the local newspapers containing the inflammatory articles
were delivered to 95% of the households, the details of defendant's
confession and offer to plead guilty if promised a 99-year
sentence, combined with the details of his criminal history,
required vacation of the lower court judgments. The trial court
itself excluded 62% of the venire "for cause as having fixed
opinions as to" defendant's guilt. Id. at 727. Ninety percent of
those prospective jurors undergoing voir dire -- conducted,
incidentally, "in front of all those remaining in the panel,"
Patton v. Yount, 467 U.S. 1025, 1034 n.10 (1984) -- "entertained
some opinion as to guilt -- ranging in intensity from mere
suspicion to absolute certainty." Irvin, 366 U.S. at 727. The
voir dire of the jurors who actually sat in judgment of the
defendant revealed that eight of twelve thought he was guilty at
the outset. Id. That is a far cry from the situation before this
court.
Irvin, in fact, was followed twenty-three years later by
Patton, where the Supreme Court found no denial of the defendant's
right to an impartial jury. There,
[t]he voir dire showed that all but 2 of 163 veniremen
questioned about the case had heard of it, and that, 126,
or 77%, admitted they would carry an opinion into the
jury box. This was a higher percentage than in Irvin,
where 62% of the 430 veniremen were dismissed for cause
because they had fixed opinions concerning the
petitioner's guilt. Finally, . . . 8 of the 14 jurors
and alternates actually seated admitted that at some time
they had formed an opinion as to Yount's guilt.
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Patton, 467 U.S. at 1029-30 (footnotes omitted). The Court
emphasized the passage of time and its effect on the fixedness of
prospective jurors' opinions, saying some had forgotten and others
"would need to be persuaded again." Id. at 1034 (footnote
omitted). It was thus not simply the existence of opinions among
prospective jurors, but the degree of their fixedness, that was
critical to the Court. As the Court emphasized, "[p]rospective
jurors represent a cross section of the community, and their
education and experience vary widely. . . . Every trial judge
understands this, and under our system it is that judge who is best
situated to determine competency to serve impartially." Id. at
1039. This admonition undercuts petitioner's key argument that
poll percentages and jury questionnaire answers decide the question
of a presumption of prejudice.
Here, we cannot say that the district court clearly and
indisputably erred in concluding that the publicity surrounding
petitioner's pretrial proceedings -- and the community's knowledge
about the Boston Marathon bombings -- has not crossed from
familiarity, as in Patton, to the prejudice evidenced in a case
like Irvin.
Petitioner and the dissent also compare this case to a
district court's exercise of discretion to change venue in United
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States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996).9 The issue
in McVeigh was not whether the venue of the Oklahoma City bombing
trial should be moved from Oklahoma City, where the crime was
committed. The parties -- including the government -- agreed to
move the trial. Id. at 1470. There is no such agreement here.
The question in McVeigh, instead, was whether to move the trial
elsewhere in Oklahoma or out of the state entirely.
That trial judge's exercise of discretion in McVeigh to
move the trial to Denver says nothing about how the trial judge
here should exercise his discretion. Nor was it meant to. As the
judge in McVeigh wrote, "[t]here are so many variables involved
that no two trials can be compared regardless of apparent
similarities." Id. at 1473. Insofar as the cases are similar, the
McVeigh judge's decision to move the trial to Denver does not
suggest that a decision to keep this trial in Boston is an abuse of
discretion -- much less a clear and indisputable one.
The dissent asks the rhetorical question "if not here,
when?" The Supreme Court answered that question in Rideau, where
an unrepresented defendant's twenty-minute, in-depth confession in
the form of an "interview" with the Sheriff was recorded and
broadcast multiple times in a small Louisiana parish. That
interview and not the later trial, the Court found, "in a very real
9
In footnote 36 of the dissent, our dissenting colleague has
made an unfounded argument that not even petitioner has made.
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sense was Rideau's trial-–at which he pleaded guilty to murder."
Rideau, 373 U.S. at 726. Three of the jurors had viewed the
interview at least once, and two members of the jury were deputy
sheriffs. Id. at 725. Here, by contrast, no such thing occurred.10
C. The Ongoing Jury Selection Process Does Not
Suggest Pervasive Prejudice.
Beyond the publicity itself, petitioner also relies on
the responses to jury questionnaires and the content of the voir
dire as a basis for finding prejudice. He asserts that what we have
seen from the juror selection process confirms that pretrial
publicity has indisputably raised a presumption of prejudice
sufficient to mandate that his trial be moved. Petitioner's
essential claim is thus that the prejudice against him is so great
that nothing the district court can do will offset it. Every
potential juror in the Eastern Division of Massachusetts is
automatically disqualified, he maintains. That alone is a
remarkable assumption about the five million people in the Eastern
Division and one much to be doubted. Our dissenting colleague,
too, argues that this "second analytical route," based on the
course of the jury selection to date, reveals an irrefutable
presumption of prejudice among the jury pool. The careful
10
The dissent's remarkable statement that the image of the
petitioner being taken from a boat was "quite likely seen by nearly
100% of the Eastern Division of Massachusetts population" is
completely unfounded; we can find no basis in the record for that
contention.
-22-
selection process and the trial judge's expressed confidence in
finding sufficient jurors, however, is supported by the record and
persuasively undercuts this argument.11
First, it is necessary to describe the ongoing jury
selection process that has been underway in the district court. In
doing so, we observe that our caselaw says that "[a] guiding beacon
. . . is the trial judge, who is responsible for conducting the
voir dire and to whom we defer from our more distant appellate
position." Quiles-Olivo, 684 F.3d at 183. The process utilized
here in many ways mirrors the one which the Supreme Court found
appropriate in Skilling. See 561 U.S. at 387-89. Here, the
district judge summoned over a thousand prospective jurors, divided
those jurors into six panels, and requested that they fill out a
long and detailed one-hundred-question questionnaire under oath.
The parties were permitted to confer and file under seal a report
with respect to each panel, listing the persons whom the parties
11
Petitioner does not make an argument that his jury will
suffer from actual prejudice. Nor could he. A post-trial finding
of "[a]ctual prejudice hinges on whether the jurors seated at trial
demonstrated actual partiality that they were incapable of setting
aside." Quiles-Olivo, 684 F.3d at 183 (citation and internal
quotation marks omitted). At this point, a jury is in the process
of being selected and has not been seated for trial. There can be
no viable claim that the yet unseated and not even finally
qualified jurors would result in a jury which suffers from actual
prejudice. To the extent petitioner now claims that all of the
provisionally qualified jurors suffer from presumed or actual
prejudice, our review of the entire record satisfied us that it is
not clear and indisputable the provisionally qualified jurors are
biased or that the district court erred.
-23-
agreed should be excused for cause. Thereafter, the parties were
ordered to file separately under seal a report suggesting specific
follow-up issues or questions to be pursued in the course of
individual voir dire.
Smaller groups of twenty to twenty-five prospective
jurors have come to the Boston courthouse,12 and, one by one, have
been questioned first by the court and then with follow-up from the
parties. At the end of each day, counsel have conferred and agreed
that certain jurors should be struck for cause or for hardship.
The court has heard argument on contested jurors and reached a
decision about which prospective jurors in the day's group may be
deemed provisionally qualified.
We have reviewed the entire voir dire conducted to this
point by the court and the parties and the process has been
thorough and appropriately calibrated to expose bias, ignorance,
12
Petitioner has never made the claims now made by the dissent
that security arrangements at the Boston courthouse as to the trial
have somehow contaminated the potential jury pool, such that the
jurors eventually picked cannot be fair and impartial. Indeed, we
reject the dissent's "impression" that security is necessary
because petitioner is "extraordinarily dangerous." Security, to
the contrary, no doubt will contribute to the safe and orderly
conduct of the trial. Further, the dissent cannot and does not
purport to describe the security arrangements for the jurors who
will sit. Importantly, even if this case were transferred to a
federal courthouse in another place, appropriately high security
arrangements would be in place. This simply is not an appropriate
consideration in this case.
-24-
and prevarication.13 As the district court noted in denying the
Third Motion for Change of Venue,
the experience of voir dire suggests . . . that the full
process -- including summonsing an expanded jury pool;
utilizing a lengthy questionnaire jointly developed by
the parties and the [c]ourt; giving the parties ample
time to review questionnaires, research jurors, and
consult with their jury selection advisers; and
permitting both the [c]ourt and the parties to conduct
thorough voir dire -- is working to ferret out those
jurors who should appropriately be excused for cause.
Our dissenting colleague comes to the opposite
conclusion, claiming that the length of the jury selection process
and the responses of the venire thus far indicate pervasive
prejudice. In doing so, however, the dissent confuses mere
exposure to publicity with "disqualifying prejudice" -- only the
second of which, when widespread throughout the jury pool, is
particularly relevant to a presumption of prejudice. See United
States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) ("Where a
high percentage of the venire admits to a disqualifying prejudice,
13
The bombings in Boston, the murder of a policeman, and the
other criminal events charged did in fact take place and were
heavily covered by the media around the world. As Reynolds
instructs, that is a separate matter from the matter of whether
petitioner is guilty of the crimes charged. See 98 U.S. at 155-56.
Seeing media coverage of the former does not mean the viewer is
prejudiced. Further, many in the provisionally qualified pool did
not follow that coverage. Similarly, the Boston Strong theme is
about civic resilience and recovery. It is not about whether
petitioner is guilty or not of the crimes charged. That someone
buys a Boston Strong T-shirt is not proof that he or she could not
be fair and impartial if selected as a potential juror on the
question of guilt.
-25-
a court may properly question the remaining jurors' avowals of
impartiality. . . ." (emphasis added)).
As an initial matter, the dissent contends that the
length of the jury selection process in this case has its genesis
in the pervasive prejudice permeating through the jury pool. But
a jury selection process of several weeks in length is not unusual
in either contemporary or historical terms.14 "[M]ajor cases have
been known to require six weeks or more before the jury is seated."
David W. Neubauer & Stephen S. Meinhold, Judicial Process: Law,
Courts, and Politics in the United States 358 (6th ed. 2013).
Despite all the hay the dissent makes of petitioner's eligibility
for the death penalty, that reality all but guarantees a longer,
more detailed selection process.15 In fact, the jury selection
14
Jury selection can sometimes take weeks, particularly in
complicated or high-profile cases. See, e.g., Miller-El v.
Cockrell, 537 U.S. 322, 328 (2003) (noting that jury selection in
capital murder case took five weeks); State v. Addison, 87 A.3d 1,
57 (N.H. 2013) (explaining that jury selection, from "a larger than
usual jury pool," took "approximately seventeen days" during which
time "over 300 prospective jurors reported to the courthouse for
jury selection"); Davis v. State, 611 A.2d 1008, 1010 (Md. Ct.
Spec. App. 1992) (noting that in "states such as California and
Florida and New York . . . jury selection in celebrity cases may
consume three or four weeks"). And, historically, a lengthy jury
selection process is nothing novel. See William H. Levit et al.,
Expediting Voir Dire: An Empirical Study, 44 S. Cal. L. Rev. 916,
923 & n.28 (1971). For example, jury selection for the trial of
Black Panther Bobby Seale took thirteen weeks and required the
examination of 1550 potential jurors. Id. at 923 n.28. And the
murder trial of Charles Manson featured a six week voir dire
process. Id.
15
See Bill Hawkins, Capital Punishment and the Administration
of Justice: A Trial Prosecutor's Perspective, 89 Judicature 258,
-26-
process in this case is perfectly comparable in length with the
only other recent capital jury selection processes in the District
of Massachusetts. See United States v. Sampson, No. 1:01-cr-10384
(D. Mass.) (seventeen days of jury selection running from September
18, 2003 to October 27, 2003); United States v. Gilbert, No. 3:98-
cr-30044 (D. Mass.) (nineteen days of jury selection running from
October 16, 2000 through November 17, 2000, provisionally
qualifying only approximately two to seven jurors per day).
Moreover, it defies logic to count the efforts the
district court has taken to carefully explore, and eliminate, any
prejudice as showing the existence of the same.16 In this case, it
is entirely unsurprising that the district court, and the parties,
have taken ample time to carefully differentiate between those
individual jurors who have been exposed to publicity but are able
to put that exposure aside and those who have developed an opinion
they cannot put aside. Together, the careful process employed by
the district court, including the "face-to-face opportunity to
gauge demeanor and credibility," and the "information from the
questionnaires regarding jurors' backgrounds, opinions, and sources
259 (2006) (noting that, in Texas, selection in counties that often
handle death-penalty cases typically takes three weeks, while in
locales where the death penalty is a "rare instance" selection
"may last much longer").
16
The dissent makes the argument that any jury found to be
unbiased during voir dire in fact then cannot be "indifferent."
This is topsy turvy.
-27-
of news" have afforded the district court "a sturdy foundation to
assess fitness for jury service." Skilling, 561 U.S. at 395. We
should commend, not decry, district courts' rigorous efforts to
ensure defendants are guaranteed a trial commensurate with their
Sixth Amendment rights.
Our dissenting colleague also quotes a variety of
allegedly "representative" juror responses in an effort to
demonstrate that the jury pool is rife with disqualifying prejudice
that requires us to doubt the avowals of impartiality from all
members of the venire. But the reality of the record is that those
comments, selectively plucked from the questionnaire responses or
voir dire testimony of over 1,300 jurors, are nothing close to
representative.17 It is a disservice to the judicial system to
claim otherwise.
The majority of the quoted statements in the dissent
regarding views of Tsarnaev's guilt, and all of the most extreme,
17
We explain the limited relevance of these statements specific
to each category the dissent lists. However, it is worth
describing them in the aggregate and mentioning what the dissent
does not. Of the thirty-two selective quotations the dissent
presents in bullet-point fashion, see Dissenting op. at 48-51,
twenty-one come from jurors who were stricken by the district
court, or by agreement of the parties, for cause. Eight more come
from the questionnaires of jurors whose panels have not yet been
individually questioned. Given the results of the voir dire
process thus far, nothing in the record suggests that any of those
jurors expressing bias will nevertheless be provisionally
qualified. Finally, while three quotes do come from the voir dire
of two provisionally qualified jurors, taken in the context of
those jurors' entire voir dire, there is no indication that those
jurors are biased.
-28-
come from the questionnaires of jurors who the parties agreed to
excuse and were excused without individual questioning. In that
sense, the parties and the court have plainly acknowledged that
those members of the pool are not representative of the more than
250 pool members who, by contrast, have thus far been called back
for individual questioning. Still other quotes involve statements
made to potential jurors by acquaintances or coworkers which are
hardly probative of the potential juror's own attitudes. In any
event, those jurors were never provisionally qualified. They were
either not called back for individual voir dire or struck for cause
after the district judge was able to assess their demeanor in
person. While a single juror has been provisionally qualified
among the group whom the dissent discusses as having expressed
views on guilt, the full context of his or her mild statement made
clear that he or she was able to put aside any initial impressions
he or she may hold -- and, we note, the defense also did not object
to that juror for cause.18
18
The dissent notes, in passing, that one of the provisionally
qualified jurors selected on his or her questionnaire that he or
she would be "unable" to put aside his or her opinion regarding the
defendant's guilt. But the parties expressed no concern about this
juror and, any concern that may have been warranted by the juror's
initial selection on the questionnaire, was eliminated by voir
dire. During questioning the juror evidenced a clear and
unequivocal ability to base his or her decision solely on the
evidence presented during trial. Indeed, the defense neither asked
about this juror's questionnaire answer nor objected to the juror's
qualification for cause.
-29-
Nor do we think such statements are so common among the
pool of excused jurors that a court must infer bias among others
who have been provisionally qualified. It is not surprising that
in a pool of over a thousand jurors with varying opinions, some
will make strong statements that disqualify them from jury service.
Others have expressed their ability to be fair and impartial. The
honesty of their answers, conscious and subconscious, has been
probed by extensive voir dire, as the Supreme Court approved in
Skilling.
The putative "personal connections" proffered by the
dissent also are mischaracterizations of the record. Many of the
connections attributed to prospective jurors are, clearly,
attenuated or tangential. And all but two of those quoted come
from the questionnaires of jurors whose panels have not yet been
questioned. The record gives us no reason to doubt that, like
their congeners from the first several panels, those with the
closest connections will be struck on the agreement of the parties
or by the court for cause. Of the three quotations presented by
the dissent that are among the panels already questioned, one juror
was not called for individual questioning and the other two were
struck for cause following questioning.
Finally, as for the exposure to publicity, we emphasize
again that "juror impartiality . . . does not require ignorance."
Skilling, 561 U.S. at 381 (emphasis in original). The fact that
-30-
many of the jurors have been exposed to some measure of publicity,
alone, is not probative of any "pervasive prejudice" in the jury
pool. In addition, four of the dissent's nine selective statements
are from the statements of a single juror during voir dire; a
juror, moreover, who was struck on the government's motion for
cause. It is, in any event, black letter law that "extensive
knowledge in the community of either the crimes or the putative
criminal is not sufficient by itself to render a trial
constitutionally unfair." Dobbert v. Florida, 432 U.S. 282, 303
(1977) (emphasis added). "To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an
impossible standard." Irvin, 366 U.S. at 723.
Ultimately, rather than a voir dire taking a total of
five hours, as in Skilling, the voir dire in this case has taken --
appropriately we think -- several weeks. To the extent that the
dissent suggests that this lengthy voir dire, and the sentiment it
has demonstrated, indicates that a presumption of prejudice exists
which cannot be overcome, we disagree. We cannot say that the
procedures put in place by the trial judge are either insufficient
on their face or so inadequately implemented as to justify an
interruption of the process and a change of venue. Nor are we
convinced that the results thus far compel such a drastic step.
-31-
Indeed, as the district court noted, "the defendant's presentation
of a series of selective quotations from the 1300-plus
questionnaires is misleading because the quotations are not fairly
representative of the content of the questionnaires generally." So
too, in the filings before us and in the dissent. In sum, neither
the length of the district court's careful selection process nor
the sentiments of the venire as a whole provide any basis for
concluding, on mandamus, that pervasive prejudice taints the entire
jury pool.
D. Petitioner Has Not Demonstrated Irreparable Harm.
Petitioner has not established a clear and indisputable
right to relief but we address irreparable injury in any event.
The law is designed to prevent use of mandamus to circumvent normal
post-trial appellate review, as petitioner attempts here. Cheney,
542 U.S. at 380. In the event that petitioner is convicted on one
or more of the charges against him, he will have the right to
appeal his conviction and sentence to this court and may raise the
venue argument again. That double layer of review is itself a
guarantee of due process.19 For that reason petitioner will not
19
The dissent's claims to the contrary are confusing and
contradictory, to say the least. Despite maintaining throughout
his opinion that the decibel of publicity in the Boston area has
been much greater, and more consistent, while the coverage
nationwide has slowly dwindled, see Dissenting op. at 39-41, 45,
66-67, our dissenting colleague suddenly claims exactly the
opposite. He contends that a case of this magnitude will face
unique difficulties for retrial elsewhere because any subsequent
jury -- presumably one outside of Massachusetts, if any conviction
-32-
suffer irreparable injury nor can he show irreparable injury to the
courts.
Petitioner relies heavily on our decision in Bulger to
argue that both he and the reputation of the legal system will
suffer irreparable injury if he does not prevail on his pretrial
petition. Bulger involved a very different question and different
standards. There the question was whether a reasonable member of
the public might question the judge's ability to preside
impartially, due to the nature of his prior employment. In re
Bulger, 710 F.3d at 49. No such issue is presented here. In
Bulger, as well, the other conditions for mandamus were met. Here,
they have not been met.
E. The Balance of Equities do not Favor Granting Mandamus.
Given petitioner's failure to meet the prior two
standards, he is not entitled to test the balance of the equities.
But even then, the balance of the equities does not favor
petitioner, whose arguments insufficiently credit the
Constitution's provisions that the trial be held where the crimes
were committed. Tsarnaev's peers in the Boston area will
constitute the jury. Members of the community will have access to
is overturned on venue grounds -- will be "exposed to the daily
events of the first trial," "the testimony given by the victims,
the witnesses, and the experts," and "all the evidence presented by
the government." Dissenting op. at 71. Yet, we are puzzled at
how the dissent can conclude such publicity, and irreparable harm,
will be produced in locations that, the dissent so vigorously
contends pages earlier, have paid far less attention to this case.
-33-
the trial and to the court room and spillover courtrooms. The
victims and witnesses are located here and will not be forced to
undertake the burdens of travel elsewhere. The same is true of
those who have known petitioner as a resident and member of the
community.
Moreover and most importantly, this Petition requests
that we interfere in the careful jury selection process that has
been ongoing in the district court, despite the fact that the
petitioner remains able to raise claims of lack of an impartial
jury on direct appeal. Such direct interference in an ongoing
trial matter by an appellate court is inimical to our process of
justice and our respect for the reasoned decisions of district
court judges. Just as we are unable to conclude that it is clear
and indisputable that the petitioner cannot receive a fair trial by
an impartial jury in the Eastern Division of Massachusetts, the
relevant interests weigh in favor of allowing the jury selection
process to continue. And they weigh against taking the
unprecedented step of abandoning our "primary reliance on the
judgment of the trial court." Skilling, 561 U.S. at 386 (quoting
Mu'Min, 500 U.S. at 427) (internal quotation marks omitted).
III.
The Second Petition for Mandamus is denied.
-Dissenting Opinion Follows-
-34-
TORRUELLA, Circuit Judge (Dissenting). "'[R]egardless of
the heinousness of the crime charged, the apparent guilt of the
offender[,] or the station in life which he occupies,' our system
of justice demands trials that are fair in both appearance and
fact." Skilling v. United States, 561 U.S. 358 (2010) (Sotomayor,
J., concurring in part and dissenting in part) (quoting Irvin v.
Dowd, 366 U.S. 717, 722 (1961)). The actions taken by this court
today pave the way for a trial that is fair neither in fact nor in
appearance.
The press coverage of this case -- beginning with the
bombing itself and the subsequent manhunt culminating with the
shelter-in-place order, continuing thereafter with stories of the
victims, Boston's coming together and healing as one united city,
and the coverage of the pretrial events -- is unparalleled in
American legal history. Given the impact of the bombing and
subsequent press coverage on the entire city, it is absurd to
suggest that Tsarnaev will receive a fair and impartial trial in
the Eastern Division of the District of Massachusetts. There is no
sound basis for refusing to apply a presumption of prejudice to a
high-profile, omnipresent, emotionally-charged case like this --
particularly where the entire Boston community has been terrorized,
victimized, and brutalized by such a horrendous act of violence.
No amount of voir dire can overcome this pervasive prejudice, no
matter how carefully it is conducted.
-35-
The whole world is watching to see how the American legal
system treats Tsarnaev, even if he is allegedly the most dreadful
of defendants. Every move taken is scrutinized to see if the
bedrock American rights of "innocent until proven guilty" and the
"right to a fair trial by an impartial jury" are given to a
foreign-born defendant accused of terrorism -- among the most
heinous of crimes. Unfortunately, both the district court and
majority fail to uphold these rights, and this failure damages the
credibility of the American judicial system.
I do not dispute that "[t]he remedy of mandamus is a
drastic one, to be invoked only in extraordinary situations." Kerr
v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976).
But in my forty years on the bench, both as a trial judge and as an
appellate judge, I am unaware of a situation more "extraordinary"
than this one. The district court has demonstrated a clear abuse
of discretion. Contrary to the district court's assessment and the
decision of the majority today, mandamus relief is not only
appropriate, but also necessary to assure that Tsarnaev receives
the fair trial that is mandated by our Constitution. Therefore,
for the reasons explained herein, I respectfully -- but vehemently
-- dissent.
-36-
I. Background20
On April 15, 2013, two bombs exploded near the finish
line of the Boston Marathon on Boylston Street in downtown Boston.
Three people were killed and approximately 264 others were injured.
Countless others ran from the scene in terror. Over the next four
days, a massive manhunt for those responsible ensued. On the third
day, April 18, authorities released video surveillance and photos
of the suspects: Tamerlan and Dzhokhar Tsarnaev. That night, while
the brothers were trying to flee Boston, they allegedly carjacked
an SUV and killed an MIT police officer. In a subsequent shootout
with police, Tamerlan Tsarnaev was seriously injured. Dzhokhar
Tsarnaev (hereinafter, "Tsarnaev") was able to temporarily escape,
in part by allegedly driving over his brother.
Finally, on April 19, the search had narrowed to the
Boston suburb of Watertown. In an unprecedented move, authorities
called for a "shelter-in-place" advisory, effectively placing the
city in lockdown: residents in Watertown and the surrounding areas
-- Boston proper, Cambridge, Newton, Belmont, and Waltham -- were
ordered not to leave their homes. The T (Boston's public
transportation system) was shut down, as were most businesses and
20
This section contains a brief summary of the events surrounding
the bombing and subsequent manhunt. For a minute-by-minute recap
of those four days, see Sara Morrison and Ellen O'Leary, Timeline
of Boston Marathon Bombing Events, Boston.com (Jan. 5, 2015),
http://www.boston.com/news/local/massachusetts/2015/01/05/timelin
e-boston-marathon-bombing-events/qiYJmANm6DYxqsusVq66yK/story.html.
-37-
public offices. While residents were confined to their homes, FBI
agents, local police officers, and SWAT team members went door-to-
door in a twenty-block radius of Watertown searching for Tsarnaev.
Hours later, he was found hiding in a boat in a resident's
backyard. Tsarnaev was bloodied from a firefight with authorities
and had written a note on the boat claiming that "[w]hen you attack
one Muslim, you attack all Muslims" and that the Marathon victims
were collateral damage.21 Immediately upon his arrest, Boston Mayor
Thomas Menino tweeted "We got him"; the Boston Police Department
tweeted "CAPTURED!!! The hunt is over. The search is done. The
terror is over. And justice has won."22 Meanwhile, Watertown
residents "flooded the streets, cheering every passing police car
and armored vehicle in an impromptu parade" and residents "danced
in the streets outside Fenway Park."23
Most -- if not all -- of this four-day ordeal was shown
live on television and reported real-time on the internet. Print
21
Maria Cramer & Peter Schworm, Note May Offer Details on Bomb
Motive, Boston Globe, May 16, 2013, http://www.bostonglobe.com/
metro/2013/05/16/sources-bomb-suspect-dzhokhar-tsarnaev-took-resp
onsibility-for-marathon-attacks-note-scrawled-boat/UhBOmEByeWVxGd
1RAxz0tO/story.html.
22
See "We got him!": Boston Bombing Suspect Captured Alive, NBC
News (Apr. 19, 2013), http://usnews.nbcnews.com/_news/2013/04/20/
17823265-we-got-him-boston-bombing-suspect-captured-alive?lite.
23
Id.
-38-
newspapers, meanwhile, published daily recaps of the previous day's
events, including the pictures of a bloodied Tsarnaev.24
Over the next few weeks, nationwide coverage continued,
slowly dwindled, and, with the exception of the occasional story
here-and-there, eventually ended. In Massachusetts, however, the
story did not end. Instead, the local news (both television and
print) continued to cover all the details of the bombing and its
aftermath. The reporting focused not only on Tsarnaev, but on the
city as a whole. Coverage included stories of the victims and
their family and friends, those who bravely risked their lives to
help the victims, and how the entire community came together.25
24
See, e.g., Live Blog: Bombings at the Boston Marathon,
http://live.boston.com/Event/Live_blog_Explosion_in_Copley_Square
?Page=0 (last visited Feb. 20, 2015); Boston Bombing Manhunt: Watch
the Live Streaming Video, Inquisitir (Apr. 19, 2013),
http://www.inquisitr.com/625705/boston-bombing-manhunt-watch-the-
live-streaming-video/ ("Developments in this active and intense
search are rapidly unfolding minute by minute. Live feeds to the
local television media coverage of the Boston bombing manhunt are
embedded below."); Boston Transit Shut Down, Nearly 1 Million
Sheltering in Place amid Terror Hunt, NBC News (Apr. 19, 2013),
http://usnews.nbcnews.com/_news/2013/04/19/17822687-boston-transi
t-shut-down-nearly-1-million-sheltering-in-place-amid-terror-hunt
?lite (embedding a video with the caption "Video of firefight
between suspects and police").
25
See, e.g., Eric Moskowitz, Long After Marathon Blasts, Survivor
Loses Leg, Boston Globe, Nov. 11, 2014, http://www.bostonglobe.com/
metro/2014/11/11/long-after-marathon-bombings-survivor-loses-
leg/urutULO5K3H33jlOGoLiNI/story.html; Boston Marathon Bombings -
One Year Later, Boston Globe, http://www.bostonglobe.com/metro/
specials/boston-marathon-bombings-year-later (last visited Feb. 20,
2015) (detailing numerous stories about the city's recovery and the
victims over the year since the marathon); Bella English & Sarah
Schweitzer, Some Affected by Bombing Will Be at Race, but Others
Won't, Boston Globe, Mar. 30, 2014, http://www.bostonglobe.com/
-39-
This phenomenon and sentiment were embodied in the "Boston Strong"
campaign which "rallied a city," became "shorthand for defiance,
solidarity, and caring," and "present[ed] a unified front in the
face of [a] threat."26 Indeed, one could not go anywhere in Boston
in the bombing's aftermath without seeing the slogan on a car, t-
shirt, bracelet, tattoo, or even mowed into the outfield of Fenway
Park. It spurred concerts, fundraisers, and rallies throughout the
city. A website, onefundboston.org, was also formed "with the
purpose of helping those most affected by the tragic Boston
Marathon bombings" by raising money and providing a forum to
"gather[] encouraging stories of strength, recovery, and hope from
survivors."
These stories and the "Boston Strong" campaign continue
to this day, almost two years later. Just over four weeks ago, as
Boston was slammed with a massive blizzard leaving approximately
two feet of snow, a man took it upon himself to shovel the finish
line of the Marathon. This man was referred to by many in the
community as a "hero" and a "snowmaritan," and led to the viral
metro/2014/03/29/marathon-victims-ponder-returning-marathon/SkxPd
1RkvCHZp5YDweJ64K/story.html; Jaclyn Reiss, Unease Lingers a Year
After Manhunt, Boston Globe, Mar. 9, 2014, http://www.bostonglobe
.com/metro/regionals/west/2014/03/09/watertown-residents-question
-police-tactics-manhunt-for-bombing-suspects/V2cAugxzqcNvlsP82pLZ
2L/story.html.
26
Ben Zimmer, "Boston Strong," the Phrase that Rallied a City,
Boston Globe, May 12, 2013, http://www.bostonglobe.com/ideas/
2013/05/11/boston-strong-phrase-that-rallied-city/uNPFaI8Mv4QxsWq
pjXBOQO/story.html.
-40-
"#WhoShoveledTheFinishLine" hashtag on social media.27 And as this
case has proceeded, a dump truck has parked outside the courthouse
bearing a "Boston Strong" logo and a building currently being
constructed across the street from the courthouse has hung a
"Boston Strong" banner.
There is no doubt that Boston has, quite laudably,
emerged from this attack stronger and more united than it was
before. However, these events also show that Boston has not yet
fully recovered, and that every resident -- whether or not they
were at the marathon that day, knew a victim, or were subject to
the shelter-in-place order28 – was deeply and personally affected
by the tragedy.
We are now tasked with deciding whether the effects of
these tragic events and the unrelenting media coverage that
followed and continues to this day have affected Tsarnaev's
constitutional right to a trial by a jury that is fair, impartial,
and indifferent, and if so, whether we should apply our mandamus
power to intervene.
27
See, e.g., Twitter Chatter, UPDATE: The Man Who Shoveled the
Marathon Finish Line Has Been Found, BDCwire (Jan. 28, 2015),
http://www.bdcwire.com/who-shoveled-the-marathon-finish-line/.
28
Indeed, some even thought April 19, the day of the shelter-in-
place order, was "so much scarier" than April 15, the day of the
bombing itself. See Alan GreenBlatt, Boston on Lockdown: "Today Is
So Much Scarier", (Apr. 19, 2013), http://www.npr.org/blogs/thetwo-
way/2013/04/19/177934915/The-Scene-In-Boston-Today-Is-So-Much-Sca
rier (quoting a resident).
-41-
II. Discussion
Courts throughout the country have found mandamus to be
an appropriate, albeit rarely implemented, vehicle to challenge a
district court's change-of-venue decision. See, e.g., In re
Volkswagen of Am., Inc., 545 F.3d 304, 308-09; (5th Cir. 2008);
Matter of Balsimo, 68 F.3d 185, 187 (7th Cir. 1995); In re Briscoe,
976 F.2d 1425, 1429 (D.C. Cir. 1992); United States v. McManus, 535
F.2d 460, 464 (8th Cir. 1976).29 As in all mandamus cases, a
petitioner must establish the following before the writ will issue:
(1) that his "'right to issuance of the writ is clear and
indisputable'"; (2) that he "has no other adequate source of
relief; that is, he must show 'irreparable harm'"; and (3) that "on
balance, the equities favor issuance of the writ." In re Bulger,
710 F.3d 42, 45 (1st Cir. 2013) (quoting Cheney v. U.S. Dist. Court
for D.C., 542 U.S. 367, 381 (2004) and In re Vázquez-Botet, 464
F.3d 54, 57 (1st Cir. 2006), respectively). Tsarnaev is the rare
litigant who has satisfied all three requirements.
29
These cases involved either Rule 21(b) of the Federal Rules of
Criminal Procedure or 28 U.S.C. § 1404(a). While the present
petition invokes Rule 21(a), this distinction is irrelevant. All
three provisions involve a request to change venue. If mandamus is
appropriate for convenience purposes, or in the civil context, it
must surely be available when the change of venue is due to a
prejudiced jury, where the constitutional implications are
magnified. In fact, the government conceded at the hearing that if
a presumption of prejudice was established, and the district court
still refused to transfer venue, then mandamus relief would be
appropriate, assuming the other mandamus factors were satisfied.
-42-
A. Tsarnaev Is Entitled to a Change of Venue
While Article III of the Constitution provides that
criminal trials "shall be held in the State where the said Crimes
shall have been committed," U.S. Const. art. III, § 2, cl. 3, that
requirement is far from absolute. The Sixth Amendment requires
that the trial take place "by an impartial jury of the State and
district wherein the crime shall have been committed," U.S. Const.
amend. VI (emphasis added), and the Fifth Amendment's Due Process
Clause requires fundamental fairness in trials, see U.S. Const.
amend. V. See also Skilling, 561 U.S. at 378-79; United States v.
McVeigh, 918 F. Supp. 1467, 1469 (W.D. Okla. 1996). To that end,
Rule 21 of the Federal Rules of Criminal Procedure requires that a
"court must transfer the proceeding against the defendant to
another district if the court is satisfied that so great a
prejudice against the defendant exists in the transferring district
that the defendant cannot obtain a fair and impartial trial there."
Fed. R. Crim. P. 21(a).
1. A Presumption of Prejudice Exists Which Cannot Be
Overcome
"In determining whether sufficient prejudice exist[s] to
require a change of venue, we must conduct two inquiries: 1)
whether jury prejudice should be presumed given the facts before
us; or 2) if prejudice should not be presumed, whether the jury was
actually prejudiced." United States v. Angiulo, 897 F.2d 1169,
1181 (1st Cir. 1990). Here we are dealing with the first inquiry.
-43-
There are two ways in which prejudice can be presumed. First,
"prejudice may properly be presumed where 'prejudicial,
inflammatory publicity about [a] case so saturated the community
from which [the defendant's] jury was drawn as to render it
virtually impossible to obtain an impartial jury.'" Id. (quoting
United States v. McNeill, 728 F.2d 5, 9 (1st Cir. 1984)
(alterations in the original). The publicity "must be both
extensive and sensational in nature." Id. Second, it can also be
shown when "so many jurors admit to a disqualifying prejudice that
the trial court may legitimately doubt the avowals of impartiality
made by the remaining jurors." United States v. Rodríguez-Cardona,
924 F.2d 1148, 1158 (1st Cir. 1991). When prejudice is presumed,
"no inquiry need be made as to the actual effect of the publicity
on the petit jury." United States v. Brien, 617 F.2d 299, 313 (1st
Cir. 1980) (citing Sheppard v. Maxwell, 384 U.S. 333, 352-55
(1966)). Regardless of which route is taken, Tsarnaev has
established a presumption of prejudice.
As to the first, there is little doubt in my mind that
the pretrial publicity -- which has been pervasive, prejudicial,
and inflammatory -- has so saturated the Eastern Division of the
District of Massachusetts and persists to this day such that we
must presume Tsarnaev cannot obtain a fair and impartial trial
-44-
here. As explained above, the city of Boston30 was itself
victimized, and the coverage of the attacks and the ensuing manhunt
was shown live on television and the internet for four days. I
expect most people were following it intently, especially those in
Boston and Watertown who were locked in their homes unable to do
much else. The spectacle of seeing a bloodied Tsarnaev taken out
of the boat and arrested is not something a potential juror in the
Eastern Division of the District of Massachusetts can easily forget
or put aside; nor can one easily forget Tsarnaev's subsequently
released alleged "confession," claiming that all of the victims
were collateral damage. These images, which may have been shown
once or twice nationwide, were shown repeatedly in Massachusetts.31
As the Supreme Court acknowledged in Rideau v. Louisiana, "[f]or
anyone who has ever watched television[,] the conclusion cannot be
avoided that this spectacle, to the tens of thousands of people who
saw and heard it, in a very real sense" was the actual trial. 373
U.S. 723, 726 (1963) (finding change of venue was required where a
30
When I refer to Boston, I am referring not only to the city of
Boston but also to the surrounding neighborhoods and suburbs which
make up the greater Boston metropolitan area and from which the
jury pool is being drawn.
31
See, e.g., The Associated Press, Marathon Bombing Aftermath Was
Top Massachusetts Story of 2014, MassLive (Dec. 26, 2014),
http://www.masslive.com/news/index.ssf/2014/12/marathon_bombing_a
ftermath_was.html ("The legal aftermath of the Boston Marathon
attacks dominated headlines in Massachusetts in 2014, much as the
attack itself did last year and the accused bomber's trial surely
will in 2015.").
-45-
twenty minute jail house "interview" was aired on television for
three consecutive days). For the people of the Eastern Division of
the District of Massachusetts, "a community so pervasively exposed
to such a spectacle," "[a]ny subsequent court proceedings . . .
could be but a hollow formality." Id.; see also Irvin, 366 U.S. at
719-20 (requiring change of venue where six murders were
"extensively covered by news media in the locality, aroused great
excitement and indignation" in the area, and involved "officials
issu[ing] press releases, which were intensively publicized,
stating that the petitioner had confessed"); Brien, 617 F.2d at 313
(transferring one defendant to Springfield, Massachusetts and
another to Arizona in a mail and wire fraud case where most
investors lost everything because the "sensational activities of
[the defendant corporation] precipitated extensive critical comment
in the press in New England and the Eastern seaboard" and "the
possible effect of that publicity on the defendants' right to a
fair trial" required a change of venue). This is especially true
here, where the vast majority of the prospective jurors have
personal connections to the events.
One reaches the same conclusion under the second
analytical route, which involves examining the jury selection to
date. "[T]he 'length to which the trial court must go in order to
select jurors who appear to be impartial'" can also "support a
presumption of prejudice." Angiulo, 897 F.2d at 1181 (quoting
-46-
Murphy v. Florida, 421 U.S. 794, 802 (1975)). Here, the district
court summonsed 1,373 jurors and required them to fill out a 101-
question questionnaire which explored, among other things: their
backgrounds; their personal connections to Boston, the Marathon,
the bombings, and the victims; their views on Tsarnaev's innocence;
and their views on the death penalty. These prospective jurors
were divided into six jury panels and, assuming they were not
struck for cause based solely on the questionnaires, were then
subject to individual voir dire by the district court and the
parties. On Wednesday, February 25, 2015, the twenty-fourth day of
jury selection, seventy-five jurors were provisionally qualified.32
The reason for this lengthy process is the pervasive prejudice
permeating throughout the pool. To get a sense of the kinds of
views that are representative of both the jury pool and the
community, I include below a mere sample of the comments that have
been made by prospective jurors, broken into three categories --
the prospective jurors' views on Tsarnaev's guilt, their personal
connections to the bombings, and their exposure to publicity about
the case:
32
Because this is a death penalty case, each party has been
allotted twenty-three peremptory challenges. Thus, to seat the
twelve jurors and six alternates, sixty-four jurors need to be
qualified. The district court, however, has opted to qualify more
than the necessary sixty-four "to be safe."
-47-
Prospective Jurors' Views on Tsarnaev's Guilt
• "[H]ow could I possibly find the defendant not
guilty with all the news information. I have
trouble accepting him getting housing & living
assistance from the state of MA, education
without paying, taking the oath of citizenship
and then committing crimes against innocent
everyday people who are also citizens of USA. Not
to mention taxpayers['] $$$"
• "He does not deserve a trial."
• "Caught redhanded should not waste the $ on the
trial."
• "[T]hey shouldn't waste the bulits [sic] or
poison; hang them."
• "[W]e all know he's guilty so quit wasting
everybody's time with a jury and string him up."
• "People told me the defendant is overwhelmingly
guilty."
• "[M]ost commented on the fact that we should skip
the trial & go right to sentencing b/c of the
assumed guilt of the heinous crimes that he's
accused of."
• "[It's] hard to understand how someone can defend
a murderer."
• "I have formed the opinion that a convicted
terrorist should receive the death penalty.
They're the enemy of my country."
• "Yeah, I think when I first checked the guilty
[box], you know, if I felt that he was guilty
box, I realized after, I don't know what all the
charges are, so I can't know that he's guilty,
because I don't know what the charges are or what
the evidence is and all of that. But I think
that there's involvement. There was so much
media coverage, even just the shootout in
Watertown. I watched it on TV. And so I feel
like there's involvement there, like I think it's
-- anybody would think that."
-48-
• The juror's knowledge of graphic pictures,
"especially the little boy," would affect the
juror's ability to serve because the juror "ha[s]
a son."
• "I truly believe that in a sense that [the death
penalty] could be the easy way out for the
defendant. He could may [sic] want that. So
that's why I said that. But as far as this next
part, again, at the time I said -- I thought
about it a lot since I did this questionnaire. I
don't know if I would be able to say he's not
guilty. I think, no matter what, he's guilty, no
matter what. As far as the death penalty,
though, I still -- I wouldn't have an issue, you
know, agreeing to the death penalty, but, yeah,
it's the easy-way-out thing. I'm not sure.
that's the main thing for me."
• "[F]or this case I think a public execution would
be appropriate, preferably by bomb at the finish
line of the marathon."
• When the prospective juror's coworkers heard she
might be picked for this trial, "[t]hey basically
said, 'Fry him.'"
• "I haven't heard both sides of the story, but on
the other side, I'm supposed to hear the not
guilty side louder first than the guilty side.
So I guess I should be going in with an
assumption of not guilty, but I'm not."
Prospective Jurors' Personal Connections to the Bombings
• "You don't [sic] want to know [what I thought
when I received my summons]! I have close
friends that work the emergency room at MA
General! What I really thought? We give you
home, money eduat [sic] & this is how you pay us
back? I'm sorry I'm all for the death penity
[sic] on this -- my friends still have nightmare
[sic] of that day!"
• "I think we all were effected [sic] by the death
of that little boy (Martin) from Dorchester."
-49-
• "It does [affect my ability to be fair and
impartial]. The Boston Strong bumper sticker
. . . represents to me the way the city came
together and helped, and just show[s] the unity
of Boston. . . ."
• "We know many people that ran and watched the
marathon that day so it was always being
discussed."
• "I knew 11 people running that day."
• "I feel anyone near the Boston area was effected
[sic] by this event."
• "My children were horrified, and even when we
thought things were under control, we went into
lock-down. It was a horrible week of fear,
anger, confusion that we lived through."
• One prospective juror could not put aside a
belief that Tsarnaev was guilty because a close
friend who was at the Marathon's finish line has
had to undergo "multiple surgeries" to her leg
due to shrapnel from one of the bombs.
Prospective Jurors' Exposure to Publicity About the Case
C "Well, I read the paper every day, and I watch
the news two hours every day. So over the course
of the past year, I've obviously seen and read
and heard quite a bit."
• "My husband and I watched the events on TV
[live], including lockdown and capture -- it was
very upsetting, traumatizing, made you feel not
safe in your own 'back yard.'"
• "It's kind of like saying erase everything you
have in your head from something. I don't know
that I would be able to erase my memory of
everything that I've read, seen, and heard."
• "Absolutely. How could you not [have followed
events during the week of the bombing]."
• "I remember seeing some raw footage that day
which I'll never forget. Yeah, there was a lot
-50-
going on that day, and it really struck me
deeply."
• "Well, I mean, from seeing and seeing all the
evidence that was publicly available, you know,
and the having all the casualty that occurred
during that, yes, I feel that he is guilty, and I
think the punishment should be, you know, death,
because personally I think that this is something
that -- I feel takes a greater weight as 9/11,
you know, where there were so many lives
affected, you know, with, you know, legs or
whatnot, you know, that they live every single
day now. . . ."
• "I think there's a lot [of concern about the
media arrangement], there were questions and
there's a lot of conversation, and if you were a
potential juror, you'd need to be avoiding the
media, and it's so front and center, it's
difficult. And, you know, just even driving in
the car, the news comes on, and, you know, I've
heard, you know, you try to switch it, but you
hear things. . . ."
• "In terms of the feelings on guilt, I think that
just comes from the initial things in the news
when the event happened and seeing all that. So
that's kind of formed that perspective."
• "Actually, I think I could be fair, but I do have
this image in my mind that I can't deny, to be
perfectly honest. . . . The image of him putting
the backpack behind that little boy."
After reading these comments, it is clear to me that the
jury pool is not composed of unbiased, indifferent individuals.33
33
The majority accuses Tsarnaev, and me, of choosing "selective
quotations" which are "misleading," ante, at 32. It also notes
that its "own review of those materials shows that the district
court is in fact identifying provisionally qualified jurors with no
or few and, at most, attenuated claimed connections to the
bombings." ante, at 16. Yet, of the seventy-five provisionally
qualified jurors, forty-two self-identified as having some
connection to the events, people, and/or places at issue. And
-51-
This should come as no surprise -- the attitudes of the jury pool,
as evidenced by statements like those excerpted above, reflect the
understandable and altogether human reaction of neighbors
traumatized by the horrific violence inflicted upon them and their
entire community. Indeed, in no small part and in very real terms,
the members of the jury pool were themselves victims of the
perpetrators' chilling act of terror. Acknowledging that fact is
by no means an indictment of the jury pool or the people of Boston,
who have shown such courage and resilience in the face of tragedy
and terror. While we may thus understand and empathize with the
prospective jurors' reaction, such empathy and understanding cannot
convert a biased jury pool into a constitutionally impartial jury
of Tsarnaev's peers. Rather, our duty as honest arbiters requires
us to uphold the Constitution and to ensure that those strong
feelings shared by the greater Boston community do not deny
Tsarnaev his right to a fair trial. If the particular facts and
circumstances of this case -- together with the emotionally-charged
comments of the jury pool excerpted above -- do not establish a
presumption of prejudice, it is hard to fathom what would.
This prejudice is only highlighted and magnified by the
surroundings in which jury selection is occurring. Each day, when
jurors report to the John Joseph Moakley United States Courthouse,
twenty-three stated in their questionnaires that they had formed
the opinion that Tsarnaev is guilty; of those twenty-three, one
even stated that he would be unable to set that belief aside.
-52-
they cannot help but observe an overwhelming display of official
government force. A secure perimeter has been established for
several blocks in each direction of the Courthouse; authorized
vehicles may be admitted, but only after first being inspected by
bomb-sniffing dogs. Anyone who makes it past the perimeter must
then navigate crowd-control barriers, only to then be greeted by a
phalanx of armed Federal Protective Service officers standing guard
at the entrance to the Courthouse. Meanwhile, the roads are lined
with Boston Police cars, Department of Homeland Security vans, and
vehicles from the U.S. Marshals Service. Upon entering the
Courthouse, if one looks out past the garden to the Inner Harbor,
one sees that at least two U.S. Coast Guard "Defender" Class Small
Response Boats, each armed with a high caliber machine gun, are
patrolling the waters behind the Courthouse.
It likely goes without saying that much of this security
dissipates when Tsarnaev is not in court. While I cannot evaluate
whether such security is actually necessary or reasonable, the
impression it gives off is clear: the proceedings in this case are
taking place in a fortress-like atmosphere because Tsarnaev must be
extraordinarily dangerous. As a result, prospective jurors are
inundated with the message that Tsarnaev is a threat who requires
the full force of the U.S. Military and civilian security apparatus
in response. I do not fault the many security personnel for doing
their duty; nor do I fault their superiors for taking precautions
-53-
regarding the security of the court. Still, I am troubled by how
such a conspicuous show of force outside the Courthouse may
influence the proceedings within it, especially to a jury pool
already so deeply affected by the events. Many of those previously
traumatized by the shelter-in-place order and area-wide manhunt
might understandably relive that trauma when triggered by such a
similar show of force. This is especially true considering the
Marathon's finish line is only mere miles from the situs of the
these proceedings and that the two-year anniversary of the bombing
will take place in the middle of Tsarnaev's trial.
The government, district court, and majority see things
differently. In rejecting Tsarnaev's third motion for a change of
venue, it points to the jurors already qualified, concluding that
the initial questionnaires and individual voir dire have done their
job to effectively weed out prejudiced jurors and allow the court
to find impartial jurors. But, under these unique circumstances,
it strains credulity to assume that mere questionnaires and voir
dire can effectively weed out biased residents and find seventy-
five qualified jurors who are impartial and indifferent. As the
Supreme Court explained in Irvin:
No doubt each juror was sincere when he said
that he would be fair and impartial to
petitioner, but psychological impact requiring
such a declaration before one's fellows is
often its father. Where so many, so many
times, admitted prejudice, such a statement of
impartiality can be given little weight. As
-54-
one of the jurors put it, "You can't forget
what you hear and see."34
366 U.S. at 728. The District Court for the Western District of
Oklahoma made a similar point in McVeigh:
The existence of . . . prejudice is difficult
to prove. Indeed it may go unrecognized in
those who are affected by it. The prejudice
that may deny a fair trial is not limited to a
bias or discriminatory attitude. It includes
an impairment of the deliberative process of
deductive reasoning from evidentiary facts
resulting from an attribution to something not
included in the evidence.
918 F. Supp. at 1472. We echoed that sentiment in Angiulo:
Where a high percentage of the venire admits
to a disqualifying prejudice, a court may
properly question the remaining jurors'
avowals of impartiality, and choose to presume
prejudice.
897 F.2d at 1181-82. Indeed, in comparable cases of such severe
and pervasive prejudice, the Supreme Court found that there was no
need "to examine a particularized transcript of the voir dire
examination of the members of the jury." Rideau, 373 U.S. at 727;
cf. United States v. Moreno Morales, 815 F.2d 725, 735 (1st Cir.
1987) (finding no presumption of prejudice where twenty-five
percent of the venire admitted believing that the defendants were
guilty).
Finally, even if it were possible to overcome the
presumption of prejudice and find truly impartial and unbiased
34
Indeed, that is precisely what one prospective juror in this
case said during voir dire: "I can't unforget what I already know."
-55-
jurors, these jurors would certainly not be "indifferent," as
almost every prospective juror has some connection to the events.
See Irvin, 366 U.S. at 722 ("The right to jury trial guarantees to
the criminally accused a fair trial by a panel of impartial,
'indifferent' jurors."). Nor would they be representative of
either the jury pool as a whole or the community at-large. See id.
at 727 ("Here the 'pattern of deep and bitter prejudice' shown to
be present throughout the community was clearly reflected in the
sum total of the voir dire examination of a majority of the jurors
finally placed in the jury box. . . . With such an opinion
permeating their minds, it would be difficult to say that each
could exclude this preconception of guilt from his deliberations.
The influence that lurks in an opinion once formed is so persistent
that it unconsciously fights detachment from the mental processes
of the average man." (internal citations omitted)).
There is no doubt in my mind that the circumstances
surrounding this case -- which, it cannot be emphasized enough, is
a death penalty case -- create a presumption of prejudice. I have
seen nothing in either the questionnaires or the voir dire to
suggest otherwise. Indeed, the government is unable to point to a
single instance in any of the 463 criminal jury cases heard in this
Circuit (188 of which were in the District of Massachusetts) in the
past five years where statements made during jury selection came
even close to approximating the quite understandable level of bias,
-56-
hate, disgust, and outrage manifested by so many of the prospective
jurors here. For all these reasons, the district court's decision
to thrice deny Tsarnaev's motion for a change of venue is a clear
abuse of discretion.
2. This Case Is Comparable to McVeigh, Rideau, and Irvin
It is extremely disappointing that both the district
court and the majority fail to appreciate the similarities to
United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996), and
the other cases cited by Tsarnaev. McVeigh concerned the trial of
those responsible for the Oklahoma City bombing which killed 168
people, injured hundreds more, completely destroyed the Alfred P.
Murrah Federal Office Building, and damaged many other buildings,
including the federal courthouse. Id. at 1469. In McVeigh, the
parties agreed that venue had to be moved outside of Oklahoma City
because "[t]he effects of the explosion on that community are so
profound and pervasive."35 Id. at 1470. The dispute was over
whether to keep the trial in Oklahoma, specifically Tulsa, or to
move it to Denver. Id. at 1470, 1474.
35
The argument advanced by the government distinguishing McVeigh
on the grounds that the trial had to be moved because of the damage
to the courthouse is disingenuous. A simple reading of the opinion
makes clear that while the courthouse was damaged, that was not the
reason for the venue change. Moreover, the contention that McVeigh
is different because in that case the parties agreed the trial
should not occur in Oklahoma City only supports the argument that
trial in Boston is inappropriate. With almost identical facts, the
government and the district court judge in McVeigh acknowledged on
their own accord that a trial in Oklahoma City would be
fundamentally and unconstitutionally unfair.
-57-
The court concluded "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." Id. at 1474 (emphasis added).
Specifically, the district court relied on the following factors.
First, while initially there was "extremely comprehensive" national
media coverage, "[a]s time passed, differences developed in both
the volume and focus of the media coverage in Oklahoma compared
with local coverage outside of Oklahoma and with national news
coverage." Id. at 1470-71. While national coverage dwindled,
local coverage continued for months after the explosion and focused
on "more personal" coverage "of the victims and their families" and
of "individual stories of grief and recovery." Id. at 1471.
Second, "Oklahomans [were] united as a family with a spirit unique
to the state. Indeed, the 'Oklahoma family' ha[d] been a common
theme in the Oklahoma media coverage, with numerous reports of how
the explosion shook the entire state, and how the state ha[d]
pulled together in response." Id. Third, "[t]he possible
prejudicial impact of this type of publicity [wa]s not something
measurable by any objective standards." Id. at 1473.
These considerations are identical to those in the
present case.36 As described above, the ongoing Massachusetts
36
The only real difference between the two cases is that Tsarnaev,
though a naturalized citizen, is foreign-born and may have been
influenced by overseas terrorist organizations while McVeigh is
-58-
coverage has been significantly more in-depth and personal than the
national coverage which has, for the most part, been sporadic and
general. Moreover, like the "Oklahoma Family" slogan, "Boston
Strong" has taken hold (and continues to be used) throughout
Massachusetts.37 And, as the media reports, juror questionnaires,
and voir dire make clear, there is strong prejudice amongst
prospective jurors, the full extent of which is almost impossible
to gauge.
Four other cases are also worth mentioning. In Rideau v.
Louisiana, 373 U.S. 723 (1963), the defendant was arrested and
charged with bank robbery, kidnapping, and murder. Id. at 724.
Following his arrest, he was "interviewed" by the country sheriff
and allegedly admitted his guilt. Id. For three consecutive days,
the recording of this "interview" was broadcast on television and
was seen by an estimated 97,000 people (or approximately 65% of the
often referred to as a "home-grown" terrorist. Given that
distinguishing the two cases on the basis of national origin would
likely be constitutionally impermissible, we must presume that the
government and district court are relying on some other, unnamed
distinction. However, they have failed to present another
persuasive, material distinction between the two cases, and I can
find none.
37
The majority's contention that the Boston Strong theme is
irrelevant because it "is about civic resilience and recovery" and
"is not about whether petitioner is guilty or not" or whether a
prospective juror "could not be fair and impartial," ante, at 25,
n.13, is struthious. The very fact that a prospective juror needs
to express "resilience" and "recovery" is eloquent evidence that he
or she was affected by the events.
-59-
Calcasieu Parish). Id. In reversing the defendant's conviction,
the Supreme Court explained that
it was a denial of due process of law to
refuse the request for a change of venue,
after the people of Calcasieu Parish had been
exposed repeatedly and in depth to the
spectacle of Rideau personally confessing in
detail . . . . For anyone who has ever
watched television the conclusion cannot be
avoided that this spectacle, to the tens of
thousands of people who saw and heard it, in a
very real sense was Rideau's trial.
Id. at 726. The repeatedly broadcast image of Tsarnaev being taken
from a boat, covered in blood from a firefight with police -- an
image which was quite likely seen by nearly 100% of the Eastern
Division of the District of Massachusetts population38 -- is just
as damaging a "confession" and spectacle, particularly when paired
with the incriminating and incendiary statements allegedly written
by him in the boat.
Similarly, in Irvin v. Dowd, 366 U.S. 717 (1961), the
defendant was charged with murdering six individuals near
Evansville, Indiana in a four-month span. Id. at 719. Shortly
after his arrest, "officials issued press releases, which were
38
The majority contends that this is a "remarkable statement"
which is "completely unfounded," ante, at 22, n.10. But "'common
sense should not be left at the courthouse door.'" District of
Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 135 n.3
(1992) (Stevens, J., dissenting) (quoting Schultz v. Nat'l Coal. of
Hispanic Mental Health & Human Servs. Orgs., 678 F. Supp. 936, 938
(D.D.C. 1988)). Indeed, 94% of potential jurors who filled out a
questionnaire stated that they had been exposed to "moderate" or "a
lot" of publicity. To suggest that this exposure did not include
the bloodied image of Tsarnaev belies common sense.
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intensively publicized, stating that the petitioner had confessed
to the six murders."39 Id. at 719-20. In requiring a change of
venue, the Supreme Court noted that the "build-up of prejudice is
clear and convincing." Id. at 725. It pointed to the "then
current community pattern of thought" and the "curbstone opinions,
not only as to petitioner's guilt but even as to what punishment he
should receive," which were solicited and broadcast over local
stations. Id. The tweets by Mayor Menino and the Boston Police
Department, the opinions expressed in the local media, the surveys
of Massachusetts residents as to their views on the case, and the
prospective jurors' comments (some of which are detailed above) are
analogous to the same kind of prejudicial actions found to be
impermissible when they occurred in Evansville in connection with
Irvin.40
39
The majority places too much emphasis on the fact that "95% of
the dwellings in Gibson County" received the local newspapers
carrying the prejudicial information, Irvin, 366 U.S. at 725,
whereas the subscription rates for the local newspapers in the
Eastern Division of the District of Massachusetts are significantly
lower. In today's media-saturated environment, physical newspapers
are obviously not the sole source of news and information.
Instead, people receive their information from a wide variety of
sources -- newspapers, local news broadcasts, twenty-four-hour
cable television, the Internet, etc. Indeed, many people access
the newspaper online, which in many cases obviates the need for a
subscription.
40
Contrary to the majority's implications, recent Supreme Court
caselaw has not cast doubt on Irvin. The main case the majority
relies on, Patton v. Yount, 1467 U.S. 1025 (1984), is readily
distinguishable on its facts. Yount involved the publicity
surrounding a retrial which was "greatly diminished" due to the
"lapse in time" between the events and the second trial. Id. at
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 Finally, venue challenges were raised in the state court
trials of both Lee Boyd Malvo and John Allen Muhammad -- better
known as the Beltway Snipers who terrorized Virginia, Maryland, and
Washington, D.C. in late 2002. Though the procedural postures and
media coverage are not identical to the present case, it is telling
that their trials were moved over 200 miles away from the site of
the attacks to ensure they, too, would receive fair trials.41
In all of these cases, each involving the death penalty
and three involving similar acts of terrorism,42 a change of venue
1032, 1033. Moreover, the "community sentiment had softened" from
the "extensive adverse publicity and the community's sense of
outrage [which] were at their height prior to Yount's first trial
in 1966." Id. That the Supreme Court ruled that the facts in a
subsequent case did not warrant a change of venue is a far cry from
suggesting that Irvin is no longer good law. Irvin has not been
overruled, either explicitly or implicitly. If it had, it would be
quite odd for Justice Sotomayor to rely on it so heavily in her
Skilling dissent. Thus, Irvin still provides valuable and on-point
precedent.
41
See, e.g., Lloyd Vries, 2nd Sniper Trial Venue Changed, CBS News
(July 24, 2003), http://www.cbsnews.com/news/2nd-sniper-trial-
venue-changed/ ("The trial of sniper suspect John Allen Muhammad
will be moved 200 miles from Prince William County to Virginia
Beach, a judge ruled Wednesday. Circuit Judge LeRoy Millette said
it 'has been clearly shown that such a change of venue is necessary
to ensure a fair and impartial jury."); Stephen Braun, Judge
Changes Sniper Trial Venue, L.A. Times, July 3, 2003,
http://articles.latimes.com/2003/jul/03/nation/na-sniper3 ("Citing
concerns that pretrial publicity would make it impossible to select
an impartial jury, a Virginia judge Wednesday ordered the
Washington-area serial sniper murder trial of Lee Boyd Malvo moved
200 miles south of the capital suburbs.").
42
The majority cites to cases involving the 1993 World Trade
Center bombing to suggest that high-profile terrorism cases can be
tried in the district where the crime occurred. See United States
v. Yousef, No. S12 93 Cr. 180(KTD), 1997 WL 411596, at *3 (S.D.N.Y.
-62-
was abundantly appropriate. It is likewise appropriate here. The
district court's failure to transfer is a clear abuse of
discretion.
3. This Case Is Not Comparable to Skilling
The government, district court, and majority, however,
all disagree and equate this case to United States v. Skilling, 561
U.S. 358 (2010). This comparison is inapposite. Unlike the cases
just described, Skilling involved neither terrorism nor murder, and
it certainly did not involve the death penalty. Instead, Skilling
involved the trial of one of the former CEOs of Enron -- one of the
world's leading energy companies at the time -- which collapsed and
fell into bankruptcy in 2001 amid fraud. Id. at 368. "[T]he facts
of the case were 'neither heinous nor sensational.'" Id. at 369.
After being indicted on numerous counts of wire fraud,
securities fraud, insider trading, making false representations to
auditors, and conspiracy to commit fraud -- of which he was
convicted of some charges and acquitted of others -- Skilling
July 18, 1997); United States v. Salameh, No. S5 93 Cr. 0180(KTD),
1993 WL 364486, at *1 (S.D.N.Y. Sept. 15, 1993). However, unlike
here, there is no evidence that the amount of pretrial press, the
personal impact stories, or the day-to-day focus on the events was
any different in New York City than it was nationwide. Unlike
here, the Second Circuit noted "press coverage had substantially
subsided by the time Yousef was brought to trial, and there was
minimal publicity in the months immediately preceding his trial."
United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003). Also of
note, New York City is significantly larger and more diverse than
Boston; very few places are comparable to New York City. Comparing
New York to Boston is like comparing an apple to a bean, rather
than apples to apples.
-63-
appealed, arguing that his trial should have been moved outside of
Houston. Id. at 375-76. The Supreme Court rejected this argument
due to a number of factors, all of which are readily
distinguishable here.
First, it explained that Houston is "the fourth most
populous city in the Nation." Id. at 382. Boston is not even in
the top twenty. See U.S. Census Bureau, Annual Estimates of the
Resident Population for Incorporated Places of 50,000 or More,
Ranked by July 1, 2013 Population: April 1, 2010 to July 1, 2013,
May 2014, http://factfinder.census.gov/faces/tableservices/jsf/
pages/productview.xhtml?src=bkmk. Moreover, the Skilling Court
noted that in a survey of potential jurors commissioned by
Skilling, "only 12.3% of Houstonians named [Skilling] when asked to
list Enron executives they believed guilty of crimes"; "two-thirds
of respondents failed to say a single negative word" about
Skilling; and "43% either had never heard of Skilling or stated
that nothing came to mind when they heard his name." 561 U.S. at
382 n.15. Here, by contrast, Tsarnaev notes that 94% of potential
jurors who filled out a questionnaire had been exposed to
"moderate" or "a lot" of publicity. Independent news articles
report similar findings.43 Unlike in Skilling, where it was
43
See, e.g., In Matters of Justice, It's Personal, Boston Globe,
Feb. 6, 2015, https://www.bostonglobe.com/case/p2015/02/05
/matters-justice-personal/1HXYIwyRx22d4Pvtxh2SOJ/story.html (noting
that a SocialSphere survey of 1000 Massachusetts residents found
that 90% thought Tsarnaev was guilty or probably guilty); Shira
-64-
possible to know about the Enron scandal without knowing that
Skilling was personally involved, Tsarnaev and the Boston Marathon
bombings are one and the same; it is impossible to be aware of one
and not the other.
Second, the Skilling Court examined the pretrial
publicity and emphasized that "although news stories about Skilling
were not kind, they contained no confession or other blatantly
prejudicial information of the type readers or viewers could not
reasonably be expected to shut from sight." Id. at 382. It added
that the "[p]retrial publicity about Skilling was less memorable
and prejudicial" and that there was "[n]o evidence of the smoking-
gun variety [which] invited prejudgment of his culpability." Id.
at 383. Here, by contrast, in the midst of the manhunt, the media
showed surveillance video of Tsarnaev with a backpack moments
before the bombing, plastered Tsarnaev's photograph everywhere
imaginable, and broadcast live the scene of him being found hidden
in a boat, covered in blood, and his subsequent arrest. Further
reports over the next few weeks and months revealed his note
written inside the boat, which was described by many as a
Schoenberg, Dzhokhar Tsarnaev Trial: Judge, Lawyers Sift Through
Potential Jurors' Ties to Boston Marathon Bombing, MassLive
(Jan. 16, 2015), http://www.masslive.com/news/boston/index.ssf/
2015/01/dzhokhar_tsarnaev_trial_judges.html ("Given the enormous
publicity surrounding the bombings, it would be nearly impossible
to find jurors who are unfamiliar with the case.").
-65-
"confession."44 And less than five weeks ago, on the morning jury
selection began, the media reported that Tsarnaev offered to plead
guilty in exchange for the government removing the death penalty
but that the government rejected the offer.45 Thus, unlike in
Skilling, here there is blatantly prejudicial pretrial publicity.
This fact directly cuts against the government's argument that
there "have been no reports of a criminal history, of an offer to
plead guilty, of a confession to other crimes, or of damaging last-
minute admissions."
Third, the Skilling Court explained that "over four years
elapsed between Enron's bankruptcy and Skilling's trial" and that
"the decibel level of media attention diminished somewhat in the
years following Enron's collapse." Id. at 383. As explained
above, it has been less than two years since the Marathon bombing,
and while the level of media attention has diminished somewhat, it
is still extremely strong and prevalent, especially in
44
See, e.g., Boston Bombings Suspect Dzhokhar Tsarnaev Left Note
in Boat He Hid in, Sources Say, CBS News (May 16, 2013),
http://www.cbsnews.com/news/boston-bombings-suspect-dzhokhar-tsar
naev-left-note-in-boat-he-hid-in-sources-say/ ("Boston bombing
suspect Dzhokhar Tsarnaev left a note claiming responsibility for
the April 15 attack on the Boston Marathon . . . .").
45
See, e.g., Evan Pérez, Boston Bombing Trial Lawyers Fail to
Reach Plea Deal, CNN (Jan. 5, 2015), http://edition.cnn.com/2015/
01/05/politics/dzhokhar-tsarnaev-trial-plea-deal-fails/index.html
("The discussions in recent months have centered on the possibility
of Tsarnaev pleading guilty and receiving a life sentence without
parole . . . . [b]ut the talks have reached an impasse because the
Justice Department has resisted removing the death penalty . . .
.").
-66-
Massachusetts.46 The emotional salience of these ongoing reports
cannot be overstated.
Fourth, the Court rejected Skilling's argument that the
"sheer number of victims" triggered a presumption of prejudice
because the "jurors' links to Enron were either nonexistent or
attenuated." Skilling, 561 U.S. at 384. While many people in
Houston had links to Enron or the energy sector, many also had no
connection. See United States v. Skilling, 554 F.3d 529, 560 n.47
(5th Cir. 2009), aff'd in part, vacated in part, 561 U.S. 358
(2010) ("Skilling offered opinion polls suggesting that one in
three Houston citizens 'personally kn[e]w' someone harmed by what
happened at Enron."). This situation is different. It is true
that a number of Eastern Division of the District of Massachusetts
residents were not at the Marathon, did not know anyone at the
Marathon, or were not personally subject to the shelter-in-place
order. Still, they were nevertheless affected because the entire
city of Boston was the intended victim of the bombings.47 That is
46
See, e.g., The Associated Press, Marathon Bombing Aftermath Was
Top Massachusetts Story of 2014, MassLive (Dec. 26, 2014),
http://www.masslive.com/news/index.ssf/2014/12/marathon_bombing_a
ftermath_was.html ("The legal aftermath of the Boston Marathon
attacks dominated headlines in Massachusetts in 2014, much as the
attack itself did last year . . . ."); Timeline: Dzhokhar Tsarnaev
in the Globe, Boston Globe, Dec. 24, 2014, http://www.bostonglobe.
com/2014/12/24/timeline-dzhokhar-tsarnaev-globe/16QJTbj8ql5dKhNGv
MuVFJ/story.html (collecting every Boston Globe news story related
to Tsarnaev).
47
See, e.g., Jonel Aleccia, Boston Bomb Attack Triggered PTSD in
Local Kids, Study Finds, NBC (May 30, 2014), http://www.nbcnews.com
-67-
the whole point of terrorism -- not just to kill or injure a few
innocent people, but to make everyone scared and make everyone
believe it could have been them or that they could be next. To
further the point, it took just one day to qualify thirty-eight
prospective jurors in Skilling. Skilling, 561 U.S. at 374. Here,
it took eleven days to qualify forty-one.
Finally, the Supreme Court agreed with Skilling that a
co-conspirator's "well-publicized decision to plead guilty shortly
before trial created a danger of juror prejudice," but found that
any prejudice was lessened due to the district court granting a
continuance and addressing the issue during voir dire. Id. at 384-
85 (internal quotations marks omitted). Once again, the situation
could not be more different here. In the midst of jury selection,
three relevant events have occurred: the Charlie Hebdo shooting and
manhunt in Paris,48 the Finish Line "Snowmaritan,"49 and the guilty
/health/health-news/boston-bomb-attack-triggered-ptsd-local-kids-
study-finds-n118856 (noting that "in addition to [PTSD],
researchers detected a range of other disturbing emotional and
behavioral responses in kids who felt the impact of the manhunt
close to home," and that "[e]veryone in Boston has a story of what
they did during the shelter-in-place request"); Alan GreenBlatt,
Boston on Lockdown: "Today Is So Much Scarier", NPR (Apr. 19, 2013,
http://www.npr.org/blogs/thetwo-way/2013/04/19/177934915/The-Scen
e-In-Boston-Today-Is-So-Much-Scarier.
48
See, e.g., Kevin Johnson, Paris and Boston Attacks Pose Striking
Parallels, USA Today, Jan. 9, 2015, http://www.usatoday.com/story/
news/nation/2015/01/08/paris-boston-attacks/21445461/ (commenting
that "there was no escaping the striking similarities between the
assault on the Paris offices of a popular satirical newspaper and
the 2013 Boston Marathon bombings" and quoting Massachusetts
Representative William Keating as stating that "[a]gainst the
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plea of Khairullozhon Matanov – a friend of Tsarnaev who is accused
of destroying evidence related to this investigation.50 Unlike in
Skilling, the district court has refused to delay the proceedings
by even a day,51 and a review of the questionnaires and voir dire
reveals that whether these topics have had any prejudicial affect
on the jury has not been deeply probed.52
4. If Not Here, When?
If a change of venue is not required in a case like this,
I cannot imagine a case where it would be. The entire city of
Boston has been terrorized and victimized, and deep-seated
backdrop of jury selection . . . , it's like Boston is reliving
what happened all over again. . . . I'm watching what's happening
in Paris, and I'm thinking of Watertown.").
49
See, e.g., Meg Wagner & Jason Silverstein, Boston Bartender
Chris Laudani Clears Snow from Boston Marathon Finish line as
Massachusetts Begins Blizzard Cleanup, N.Y. Daily News, Jan. 28,
2015, http://www.nydailynews.com/news/national/boston-begins-
blizzard-cleanup-clears-marathon-finish-line-article-1.2094673.
50
See, e.g., Milton J. Valencia, Tsarnaev Friend to Plead Guilty,
Boston Globe, Jan. 13, 2015, http://www.bostonglobe.com/metro/2015/
01/13/judge-sets-jan-plea-hearing-for-friend-boston-marathon-bomb
ers/SPbRARYlkYS5XYJMrZNFcM/story.html.
51
See, e.g., The Associated Press, Judge Rejects Bid to Delay
Tsarnaev Trial over Paris Attacks, Boston Herald, Jan. 14, 2015,
http://www.bostonherald.com/news_opinion/local_coverage/2015/01/j
udge_rejects_bid_to_delay_tsarnaev_trial_over_paris_attacks.
52
At the hearing, Tsarnaev explained that all of these events
occurred after the questionnaires were filled out, and while the
district court has generally asked prospective jurors whether they
were aware of these events, it has cut off questioning into how in-
depth this knowledge is or how it has affected the prospective
juror.
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prejudice against those responsible permeates daily life. If
residents of the Eastern Division of the District of Massachusetts
did not already resent Tsarnaev and predetermine his guilt, the
constant reporting on the Marathon bombing and its aftermath could
only further convince the prospective jurors of his guilt. Adding
the death penalty element to these circumstances, and the makings
for a presumption of prejudice abound. If a presumption does not
exist here, when would it? How big must a terrorist attack be?
How numerous and widespread must the body count and impact be? How
pervasive and detailed must the coverage be before a federal court
must presume the existence of prejudice?
By refusing to grant a change of venue in this case --
one of the most well-known, well-publicized, and emotionally-
resonant terrorist attacks ever to go to trial -- both the district
court and the majority are suggesting that there could never be a
case which mandates a change of venue. If their decisions are
allowed to stand, we might as well erase Rule 21(a) from the
Federal Rules of Criminal Procedure, some of the due process
principles from the Fifth Amendment, and the "impartial jury"
phrase from the Sixth Amendment.53
53
Another option, which none of the parties have suggested, would
be to select jurors from another jurisdiction and then bring them
to the District of Massachusetts for the trial. Though this
practice is very rare, it is not unheard of. See Commonwealth v.
Moore, Docket No. 169, Crim. No. 2011-10023, at *3, 5 (Mass. Sup.
Ct. Oct. 5, 2012) (ordering a "partial change in venue" whereby the
trial would be held in Suffolk County but the jury would be
-70-
B. A Failure to Act Will Cause Irreparable Harm
The second requirement for a writ of mandamus to issue is
that a defendant must show "relief is necessary to prevent
irreparable harm." In re Justices of the Supreme Court of P.R.,
695 F.2d 17, 20 (1st Cir. 1982). This requirement has been
satisfied here as well. Should the jury selection process fail to
select a fair and impartial jury, the "widespread public comment"
in a case of this magnitude would "creat[e] additional difficulty
in beginning again at another place for trial." McVeigh, 918 F.
Supp. 1467. Any subsequent jury would be exposed to even more
prejudicial publicity about the case. For example: it would be
exposed to the daily events of the first trial; it would be exposed
to the testimony given by the victims, the witnesses, and the
experts; and it would be exposed to all the evidence presented by
the government. Not only would it be exposed to this evidence, it
would be exposed to outside commentary on the evidence as well.
But, perhaps most harmfully, a subsequent jury could be expected to
know that the new trial was the result of a post-conviction
reversal. Thus, the new jury would know that Tsarnaev had already
been convicted by a prior jury, with his guilt already proven once
beyond a reasonable doubt. The jury might likely conclude that the
retrial is due only to a perceived "technicality," and as a result,
any pretrial prejudice may be even stronger at a retrial. While
"draw[n] from a Worcester County jury venire").
-71-
this is, of course, a concern in any situation where a conviction
is reversed on appeal, very few, if any, cases have the press
coverage and widespread dissemination of information that are
present here. Thus, contrary to the majority's position, the fact
that Tsarnaev, should he be convicted, will be able to raise his
arguments in an appeal does not defeat the irreparable harm prong.54
54
The majority misunderstands the nature of modern media coverage
of high-profile criminal trials, and the distinction between prior
coverage in Boston versus the rest of the country. Since the
Marathon bombing, media coverage of the story has never ceased in
Boston, where the story remains present and at the fore of the
public's interest. On the national stage, however, in the two-year
gap between the bombing and the start of jury selection, media
coverage has waned and pales in comparison to local coverage.
Nonetheless, given the American experience with high-profile
criminal trials over the past few decades, there is every reason to
expect that the national news media (including 24-hour cable
channels, radio, print newspapers, social media, and internet
sources) will ramp up with Tsarnaev's trial and engage in the
relentless, highly detailed, omnipresent coverage that
characterized criminal trials such as those of O.J. Simpson, Casey
Anthony, the Menéndez Brothers, Jeffrey Dahmer, Phil Spector, and
Ted Bundy. See, e.g., Casey Anthony Murder Trial Garners Extensive
Media Coverage: Cable and Broadcast TV Coverage Draws Comparison to
the Trials of O.J. Simpson and the Menéndez Brothers, L.A. Times,
July 6, 2011, http://articles.latimes.com/2011/jul/06/entertainment
/la-et-casey-anthony-trial-sidebar-20110706 (noting, among other
things, that "[m]ore than 600 press passes were doled out for media
coverage, and every major broadcast network has had at least one
reporter at the trial"); see also Emily Shire, From O.J. to
'Serial': We're All Armchair Jurors Now, The Daily Beast (Jan. 23,
2015), http://www.thedailybeast.com/articles/2015/01/23/from-o-j-
to-serial-we-re-all-armchair-jurors-now.html ("It's the 20th
anniversary of the start of O.J. Simpson's trial, a media event
which led to an explosion of courtroom TV and loud legal experts .
. . ."); id. ("The 24-hour cable news network meant that the murder
trial was transformed into a celebrity-making machine. Simpson, his
defense team, his prosecutors, the judge, and cable legal analysts
all became characters in the most gripping drama on television.");
id. ("Transforming television viewers into jurors who were chomping
at the bit to declare guilt or innocence drove the media coverage
-72-
Another consideration the majority fails to adequately
consider is the harm that will be done to the judicial system as a
whole. In In re Cargill, Inc., 66 F.3d 1256 (1995), a case
involving a mandamus petition for a judge's recusal, we held that
"[p]ublic confidence in the courts may require that such a question
be disposed of at the earliest possible opportunity." Id. at 1262.
Though the issue here is change of venue and not recusal, the
concern over "public confidence" is just as vital. It is not just
Tsarnaev that is on trial as a result of the issues before us, but
also the integrity of our federal judicial system. The entire
world is watching to see how the American values of "innocent until
proven guilty" and "the right to a fair trial" -- values we proudly
proclaim -- are applied in the toughest of cases, where the most
allegedly despicable of defendants are on the docket. The actions
taken by the district court cast doubt on the tenets by which our
entire system is based, and it is thus necessary for us to act.
There is serious doubt in the public sphere that Tsarnaev
can receive a fair trial in the District of Massachusetts. Major
papers throughout the world have published articles suggesting that
the trial should be moved outside of Boston.55 For example, a
of the most sensationalized trials of the next 20 years: Scott
Peterson, Casey Anthony, Jodi Arias.").
55
See, e.g., Joe D'amore, Tsarnaev Trial Should Not Be in Boston,
Gloucester Times, Feb. 9, 2015, http://www.gloucestertimes.com/
opinion/letter-tsarnaev-trial-should-not-be-in-boston/article_815
5d310-7ba2-5046-a9aa-5406973c3df6.html; Thomas Farragher, Tsarnaev
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survey of 1,000 Massachusetts residents showed that only 47% of
those polled were confident that Tsarnaev would receive a fair
trial.56 While only 8% were not at all confident, the other 43% (2%
of the respondents were unaccounted for) had varying levels of
doubt as to whether or not Tsarnaev could receive a fair trial.57
Many legal publications agree.58 But perhaps most notably,
prospective jurors themselves have stated that "it will be very
tough to find an impartial jury this close to the crime," that the
Trial Should Be Moved to Another Venue, Boston Globe, Feb. 7, 2015,
https://www.bostonglobe.com/metro/2015/02/06/tsarnaev-trial-shoul
d-moved-another-venue/5HovPmXy1dTyv1XhV5VzSI/story.html ("Most
potential jurors don't think Tsarnaev is guilty. They know he's
guilty."); Danny Cevallos, Can Tsarnaev, Hernández, Holmes Get Fair
Trials?, CNN (Jan. 29, 2015), http://www.cnn.com/2015/01/28/
opinion/cevallos-major-trials-pretrial-publicity/; Thaddeus
Hoffmeister, The Judge Should Rethink His Decision to Try Tsarnaev
in Boston, N.Y. Times, Jan. 7, 2015, http://www.nytimes.com/
roomfordebate/2015/01/07/when-a-local-jury-wont-do/the-judge-shou
ld-rethink-his-decision-to-try-tsarnaev-in-boston; Richard Lind,
The Judge's Decision in the Tsarnaev Case Sets a Bad Precedent,
N.Y. Times, Jan. 7, 2015, http://www.nytimes.com/roomfordebate/
2015/01/07/when-a-local-jury-wont-do/the-judges-decision-in-the-t
sarnaev-case-sets-a-bad-precedent-19; Harvey Silverglate, Why the
Tsarnaev Trial Should Be Moved, Delayed, Boston Globe, Jan. 2,
2015, http://www.bostonglobe.com/case/p2015/01/02/why-tsarnaev-
trial-should-moved-delayed/K2is6uVCo179w6JzDLvZYJ/story.html.
56
In Matters of Justice, It's Personal, Boston Globe, Feb. 6,
2015, http://www.bostonglobe.com/case/p2015/02/05/matters-justice
-personal/1HXYIwyRx22d4Pvtxh2SOJ/story.html.
57
Id.
58
See, e.g., Andrew Cohen, Can Tsarnaev Get a Fair Trial in
Boston? Of Course Not., Brennan Center for Justice (Jan. 9, 2015),
http://www.brennancenter.org/analysis/can-tsarnaev-get-fair-trial
-boston-course-not.
-74-
trial is a "waste of time and money," and that "there is no way
[the juror] could be impartial."59
Yet, instead of alleviating any doubt as to the fairness
of the proceedings, the district court has repeatedly refused to
grant Tsarnaev's motions for change of venue. Not only that, it
often refuses to act at all. Tsarnaev filed his second motion for
change of venue on December 1, but the district court sat on the
motion for a month before issuing its denial. In addition to this
being just five days before jury selection was to begin, it was
also New Year's Eve. Unfortunately, the district court went
further and criticized Tsarnaev for filing the motion to begin
with. See Op. and Order, Jan. 2, 2015, Case No. 13-10200, ECF No.
887, 1-6 (characterizing the motion as an ill-timed and delayed
motion for reconsideration despite Tsarnaev's attempt to supplement
the record with additional facts and reports supporting community
bias). A similar practice occurred when Tsarnaev filed his third
motion for a change of venue. Again, the district court failed to
act promptly. It sat on the motion for sixteen days and only
issued an order once the instant petition for mandamus was filed.
The district court did, however, immediately act to chastize
Tsarnaev's defense team for publicly including quotes from the jury
59
It is worth noting that many other prospective jurors conveyed
similar sentiments regarding the unlikely prospect of Tsarnaev
receiving a fair trial. While these prospective jurors were
hopefully struck for cause, their comments only further highlight
the strong views in the community.
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questionnaires. See Text Order, Jan. 22, 2015, Case No. 13-10200,
ECF No. 983. Though there may have been legitimate reasons for
these delays and criticisms, to the public, these actions may
suggest that Tsarnaev's attorneys are being punished for doing
their jobs.60
Rather than stepping in to remedy this appearance of
injustice and restore faith in the system before its integrity is
irreparably damaged, the majority has largely sidestepped the
issue. As I noted in my dissent to Tsarnaev's first petition for
mandamus, the majority denied his petition within hours of
receiving the complete briefing. In re Tsarnaev, 775 F.3d 457,
457-59 (1st Cir. 2015) (Torruella, J., dissenting). In today's
opinion, it likewise focuses not on the merits, but the "onerous"
burden Tsarnaev must overcome.
Let us recap: Tsarnaev was filmed being arrested after a
four-day manhunt; the entire city, which in itself is a victim,
came together and adopted "Boston Strong" as a sign of camaraderie;
national media outlets had essentially stopped covering the bombing
and its aftermath prior to trial, but the local news (both
60
See, e.g., Alysha Palumbo, Tsarnaev Lawyers Defend Use of Juror
Quotes to Move Trial, New England Cable News (Jan. 23, 2015),
http://www.necn.com/news/new-england/Boston-Marathon-Bombing-Susp
ect-Dzhokhar-Tsarnaev-Jury-Selection-Continues-289565681.html; Pete
Williams, Judge Chides Tsarnaev Lawyers for Releasing Jurors'
Comments, NBC (Jan. 22, 2015), http://www.nbcnews.com/news/
us-news/judge-chides-tsarnaev-lawyers-releasing-jurors-comments-n
291636.
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television and print) continue to report on it daily; jury
selection is being conducted in the Moakley Courthouse, which is
just a few miles from the Marathon's finish line, and which has
become a heavily guarded fortress surrounded by a media circus; the
district court has been slow in acting on Tsarnaev's motions and
repeatedly criticizes his attorneys for zealously advocating on his
behalf; and when Tsarnaev seeks relief from this court, a majority
rebuffs his pleas. This is not the kind of "American Justice" that
is expected of the federal courts, particularly in a criminal
death-penalty case of this magnitude and import.
As Justice Sotomayor opined in Skilling, "our system of
justice demands trials that are fair in both appearance and fact."
Skilling, 561 U.S. at 464 (Sotomayor, J., concurring in part and
dissenting in part). By failing to act now, the majority is only
furthering the perception that this whole trial has a pre-ordained
outcome and that our "guarantee of due process" is nothing but an
empty promise. See Rideau, 373 U.S. at 726 ("Any subsequent court
proceedings in a community so pervasively exposed to such a
spectacle could be but a hollow formality. . . . The kangaroo
court proceedings in this case involved a more subtle but no less
real deprivation of due process of law.").
A mandamus order from this court could have saved the
district court's clear error, avoided some of the danger of
mistrial on the basis of a prejudiced jury pool, and precluded the
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irreparable harm that, thanks to the media circus bound to form
around this trial, would mar any subsequent trial for Tsarnaev in
the event of such a mistrial or reversed conviction. Such
irreparable harm is not limited to Tsarnaev himself, but also
extends to the damage done to the credibility and integrity of our
legal system. With today's decision, any chance of avoiding such
harm is now gone.
C. The Equities Favor Transfer
Finally, for the writ to issue, the equities, on balance,
must favor the petition. In re Bulger, 710 F.3d at 45. Such is
the case here. Even assuming this is a "close case," which I do
not think it is, we should err on the side of caution. Again, let
us not forget, this is a death penalty case. As the Supreme Court
stated in Irvin, "[w]ith his life at stake, it is not requiring too
much that petitioner be tried in an atmosphere undisturbed by so
huge a wave of public passion." 366 U.S. at 728. The government,
the district court, and the majority have failed to proffer any
strong, persuasive case or reason why the equities should weigh
against transfer. Indeed, their supposedly strongest point --
that "the trial be held where the crimes were committed" so that,
in part, "[m]embers of the community will have access to the trial
and to the court room," ante, at 33-34 -- is factually inaccurate.
While the trial may be held where the crime was committed, the
public will not have access. Instead, the public and the victims
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will be relegated to "overflow" rooms where they can watch the
proceedings on closed-link video cameras. There is no reason that
a trial being held in a different district could not similarly be
broadcast. Indeed, that is exactly what happened in McVeigh.
Accordingly, any legitimate doubt that Tsarnaev cannot receive a
fair trial tips the equities in favor of issuing the writ and
requiring a transfer out of this district.
III. Conclusion
"[T]he right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, 'indifferent'
jurors." Irvin, 366 U.S. at 722. As I have explained above,
almost the entire pool of potential jurors has been compromised by
the Boston Marathon bombings in one respect or another. Even
though potential jurors may have the best of intentions, I believe
it is impossible to empanel a jury in this jurisdiction that is
impartial, let alone indifferent.
I understand what this trial means for the community: an
opportunity for closure, a sense of justice. But what makes both
America and Boston strong is that we guarantee fundamental
constitutional rights to even those who have caused us the greatest
harm. Rather than convicting Tsarnaev and possibly sentencing him
to death based on trial-by-media and raw emotion, we must put our
emotions aside and proceed in a rational manner. This includes
guaranteeing that Tsarnaev is given a fair trial and accorded the
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utmost due process. The actions of the district court and the
majority of this court fall short of these ideals.
Tsarnaev is entitled to a writ of mandamus ordering the
district court to grant Tsarnaev's motion for a change of venue.
Because this court refuses to grant this relief, I strongly
dissent.
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