Arguing in front of three appeals court judges, the defense and the prosecution cited different Supreme Court cases to buttress their claims. Among other cases, the government cited Patton v. Yount, in which a man convicted of first-degree murder and rape argued that he had been denied an impartial jury but the Supreme Court ruled that the voir dire process was sufficient to weed out any bias.
The defense cited, among other cases, Rideau v. Louisiana, in which the Supreme Court overturned a 1961 murder conviction because of pre-trial publicity: Wilbert Rideau’s confession had been televised in his small Louisiana community, from which the jury had been drawn.
“Isn’t this the same thing?” asked Judge Juan Torruella, saying that a video of Tsarnaev placing a backpack at the site of the bombing had been widely broadcast.
Assistant U.S. Attorney William Weinreb responded that no, it was not the same thing, because the video was shown nearly two years ago, and to a much broader audience than the confession video in Louisiana.
In fact, both Judge Torruella and the prosecutor were unwittingly demonstrating the effects of publicity saturation in this case. No video of Dzhokhar Tsarnaev placing a backpack at the site of the bombing has been broadcast. Law enforcement and former Massachusetts Governor Deval Patrick have said that such a video exists – but it is yet to be shown. The video released by the FBI and shown widely during the Boston manhunt in April 2013 showed Tsarnaev walking among the spectators at the marathon, carrying a backpack on one shoulder.
News outlets have, however, published parts of a note ostensibly scribbled by Tsarnaev on the sides of a boat in which he hid during the manhunt; the note is also cited in the indictment. It is not by any strict measure a confession – it contains no specific information about the bombing – but, as Mizner said, “there are news reports characterizing some things as admissions.”
“That’s not a confession,” said Judge Sandra Lynch.
Judge Lynch and the third judge on the panel, Jeffrey Howard, have previously voted to deny Tsarnaev’s change-of-venue request, while Judge Torruella dissented. At Thursday’s hearing, Judge Torruella made it clear that he continues to favor moving the trial.
Judge Torruella challenged Weinreb to find, among the 453 criminal cases tried by the federal district court in the last five years, one in which prospective jurors had made statements similar to those culled by the defense from some of the written questionnaires: “Why waste time on this guy, we know he is guilty”; “We should skip trial and go straight to sentencing”; “For this case, a public execution would be appropriate, preferably by a bomb at the finish line of the Boston Marathon.”
Weinreb continued to argue that the voir dire process has eliminated such strongly prejudiced jurors. So far, 61 people have been “provisionally qualified” as jurors; Judge George O’Toole, who is trying the case, has said he wants to qualify a total of 70 before the sides can exercise their preemptions. Mizner said the defense does not doubt that the 61 people have demonstrated a sincere intention to be impartial: it just doubts they will be able to carry through when faced with emotionally challenging evidence.
The appeals court has not said when it will decide on the change of venue motion. Meanwhile, the district court resumed the juror interviews. Once that process is over – which could happen as soon as Friday – the final 12 jurors and six alternates will be chosen from the pool of 70, and oral arguments will begin.