The federal court judge presiding over the Boston Marathon bombing trial has denied defendant Dzhokhar Tsarnaev's third change of venue motion, saying this most recent attempt to move the trial out of the city has "even less, not more, merit than the prior ones."
In his order Friday, filed two weeks after Tsarnaev's petition, Judge George O'Toole criticized the defense for releasing prospective jurors' responses to summons questionnaires. In their motion, Tsarnaev's team claimed that the questionnaires by the 1,373 prospective jurors showed that 68% of them believed Tsarnaev is guilty before "hearing a single witness or examining a shred of evidence."
The defense also released harsh posts from social media accounts of prospective jurors to bolster their argument that seating a fair and impartial jury would be impossible.
The defense also said that that the "unrelenting near-daily" publicity before the trial, through hundreds of articles in the Boston Globe and Boston Herald, had "cemented a narrative of guilt in the public consciousness" that was reflected in the potential jurors in the district.
O'Toole criticized Tsarnaev for pointing solely to written responses at this stage in jury selection when over 100 jurors have been individually questioned.
"In other words, at this stage the questionnaire answers are only a starting point. Decisions to qualify or excuse any prospective juror will be made on the basis of all the information available, but especially on the individual interviews of each of the jurors, face to face," O'Toole wrote. "It is therefore a fundamental flaw in the defendant's argument in support of his motion that it relies primarily on the questionnaire answers."
O'Toole also criticized Tsarnaev for citing the extensive media coverage of the trial as reason to move and delay the proceedings after his team released information from the questionnaire that they knew would be widely covered by the media.
"The selected quotations are attention-getting, and they have gotten attention from the media. After putting them in a public filing and thus having effectively invited the media to give them publicity, the defendant now piously complains about the level of media coverage," O'Toole wrote.
In his order, the judge subsequently denied a motion to stop jury selection while the change of venue decision is finalized.
That final decision, however, does not lie with O'Toole at this point. While the judge sat on the defense's motion to move the trial, Tsarnaev's team filed a motion with the first circuit court of appeals to halt jury selection and move the trial. That decision is pending. The appeals court previously voted against Tsarnaev, 2-1.
Earlier this week, the court said that jury selection in the Tsarnaev trial was progressing at a satisfactory rate. Despite jury questioning taking longer than anticipated and inclement weather delays, the court believes that the could hear opening arguments as early as mid-February.
Michael Hayes is a senior reporter for BuzzFeed News and is based in New York.
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