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Finding fair jurors in Tsarnaev case a ‘quixotic undertaking’

By: Associated Press//January 26, 2015//

Finding fair jurors in Tsarnaev case a ‘quixotic undertaking’

By: Associated Press//January 26, 2015//

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By Brandon Gee
Dolan Media Newswires

Boston Marathon bombing suspect Dzhokhar Tsarnaev, second from right, is depicted with his lawyers, left, beside U.S. District Judge George O'Toole Jr., right, as O'Toole addresses a pool of potential jurors in a jury assembly room at the federal courthouse, Monday, Jan. 5, 2015, in Boston. Tsarnaev is charged with the April 2013 attack that killed three people and injured more than 260. His trial is scheduled to begin on Jan. 26. He could face the death penalty if convicted. (AP Photo/Jane Flavell Collins)
Boston Marathon bombing suspect Dzhokhar Tsarnaev (second from right) is depicted Jan. 5 with his lawyers (left) and U.S. District Judge George O’Toole Jr. (right) as O’Toole addresses a pool of potential jurors in a jury assembly room at the federal courthouse in Boston. (AP Photo/Jane Flavell Collins)

BOSTON — Relying on an analysis of questionnaires filled out by 1,373 prospective jurors, accused Boston Marathon bomber Dzhokhar Tsarnaev has filed a third motion to transfer his case to another venue.

U.S. District Court Judge George O’Toole Jr. has repeatedly denied the request, and the 1st U.S. Circuit Court of Appeals declined to intervene earlier this month.

In a motion Thursday, Tsarnaev’s lawyers argue that the questionnaires require a “fresh evaluation” of the matter because they show that “an extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev guilty, or have some self-identified ‘connection’ to the case, or both.”

The questionnaires were a first step in a lengthy jury selection process that has since progressed to individual interviews with those jurors who were not dismissed for cause based on their answers. The individual examinations are taking longer than originally anticipated, and Tsarnaev’s motion was filed shortly after the court acknowledged it was not realistic for the trial proper to begin Monday as scheduled.

“Rooting out the overwhelming prejudice — even with the most thorough voir dire imaginable — is a quixotic undertaking that cannot overcome prospective jurors’ powerful emotional connections to this extraordinary event,” the motion states. “Those few jurors who survive the winnowing process of voir dire will not be representative of the community, the risk of seating biased jurors is too high, and in any event the appearance of impartiality cannot survive the endeavor.”

O’Toole, however, seems to have drawn different conclusions from the questionnaires.

“My detailed review of juror questionnaires in preparation for voir dire has so far confirmed, rather [than] undermined, my judgment that a fair and impartial jury can and will be chosen to determine the issues in this case,” O’Toole wrote in a Jan. 14 ruling denying Tsarnaev’s request to delay his trial one month in light of the recent terrorist attacks in Paris.

Dzhokhar Tsarnaev (AP File Photo/Federal Bureau of Investigation)
Dzhokhar Tsarnaev (AP File Photo/Federal Bureau of Investigation)

Tsarnaev’s motion takes some cues from O’Toole’s previous refusals to move the trial. For example, O’Toole has noted that the trial is of national, not just local interest, and therefore moving the trial elsewhere in the country may not accomplish much.

“Some responding jurors cited their pride at being a Bostonian or being ‘Boston Strong,’” Tsarnaev’s motion states. “This phenomenon of jurors’ close association or identification with victims, witnesses, places, and Boston itself as a community under attack is indisputably idiosyncratic to the Eastern District [of Massachusetts], and the permeation of the associations demonstrated in the jury questionnaires is a direct result of the Court’s determination to hold the trial in Boston.”

The motion also goes out of its ways to draw contrasts between Tsarnaev’s case and that of former Enron Corp. CEO Jeffrey Skilling. O’Toole has taken most of his cues on the question of venue from the Supreme Court’s decision in Skilling v. United States, in which it found no fault in Skilling being tried locally in Houston.

Tsarnaev’s motion notes that Skilling was a “close” case decided by a divided Supreme Court and that, while pretrial polling revealed “only 12.3 percent of Houstonians named [Skilling] when asked to list Enron executives they believed guilty of crimes,” Tsarnaev’s polling showed 57.9 percent of eastern Massachusetts residents believed him to be “definitely guilty.”

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