Boston Marathon Bombing Defendant Being Denied A Right To A Fair Trial

Think about it. When the FBI launched a city-wide manhunt for alleged Boston Marathon bombers Tamerlan Tsarnaev and his younger brother, Dzhokhar, after showing video images of the two Chechyan immigrants near the scene of events which played out on April 15, 2013, a virtual lock down of the entire city of Boston occurred as police conducted house-to-house searches following an alleged shootout hours later between the two accused and police. Hardly a single resident of this major American city was unaffected by the events that played out following the bombing.

Police claimed the older brother was killed in that shootout, even though private amateur video captured a man bearing a striking resemblance to Tamerlan being taken into custody alive stripped naked. Police later released a horrifyingly surreal image of Tamerlan's body taken during his alleged autopsy. When police apprehended his unarmed younger brother days later after police inflicted life-threatening injuries on him, large crowds gathered on public streets to celebrate his capture and applauded the very same law enforcement officers who had so badly trampled on their Fourth Amendment rights during the search for the two brothers during the imposition of what amounted to martial law.

In the days and months following the April 15 event, the media has abidingly fostered the government narrative, which is full of holes to the least discerning, and recounted the harrowing tales of the bombing's survivors and their families. "Boston Strong" became the rallying cry to show support for them as the public demanded justice for the surviving accused bomber. A federal district court judge is now prepared to try Tsarnaev on charges calling for the imposition of the death penalty. Federal criminal procedures allow for a change of venue where media coverage has been so pervasive, inflammatory, contemporaneous to trial and produces a serious contamination of the jury pool creates so great a prejudice that a fair trial is impossible. There aren't many cases where that standard can be satisfied, but it unquestionably was met in this case. Incredibly, federal district court Judge George O'Toole denied Tsarnaev's motion for a change of venue.

Judge O'Toole said he would provide a more lengthy explanation of his ruling later explaining why he didn't believe the jury pool had been tainted. Tsarnaev's attorneys have filed an emergency appeal with the First Circuit Court of Appeals seeking to overturn O'Toole's denial of their change of venue motion. O'Toole wants to proceed to trial immediately, while Tsarnaev's attorneys believed the judge should delay the jury-seating process until their appeal has been heard. The defense attorneys believe their case is no different than that of the Oklahoma City bomber, Timothy McVeigh, who won a change of venue for his case to Denver, Colorado where he was eventually found guilty before being put to death at the federal penitentiary in Terre Haute. Many of the victims of the bombing have been showing up to the courthouse daily for proceedings in the matter. The judge has ordered the spectators not to wear clothing, buttons or other items carrying a message symbolic to issues in the case.

Locally, the defendants in the Richmond Hills gas explosion case won a change of venue in their state criminal case, which had far fewer victims and never received anything close to the impassioned media attention the Boston Marathon bombing case received. Marion Co. Prosecutor Terry Curry's office consented to the change of venue after agreeing that it would be hard to find potential jurors to hear the case who had not heard about the case and formed opinions. "It's appropriate to agree to the change of venue in order to have an assurance that all parties — not only the defendants, but all parties — would have a fair and impartial jury to hear this matter," Curry told the Indianapolis Star.

Not only does Tsarnaev face a heavily-tainted jury pool, his attorneys face a difficult task in finding witnesses to testify on his behalf. Family members who have knowledge of the active role FBI agents played in the lives of the Tsarnaev brothers, particularly the older brother, are afraid to return to the United States for fear of prosecution. Friends of the brothers have been unfairly prosecuted for their weak connection to the alleged crime and, in the case of one, actually shot and killed by an FBI agent during an improper interrogation designed to elicit a confession from him regarding his and the older brother's role in a triple homicide committed two years prior to the bombing to which federal law enforcement officials now say they have no evidence tying the Tsarnaev brothers. WhoWhatWhy does a good job summarizing the FBI's war on the Boston bombing witnesses here.

Those of us who have dared to question the government's narrative have found many serious problems with it. An uncle of the brothers, Ruslan Tsarni, was hauled before cameras to declare their guilt. When real investigative journalists tied Tsarni to a top CIA official, Graham Fuller, with whom he once lived while married to his daughter, the uncle was taken from public sight never to be heard from again. The mainstream media's silence on the uncle's U.S. intelligence ties was deafening. FBI agents pretended not to know who the brothers were when their images were first broadcast worldwide at a live television press conference. In fact, the FBI had frequently visited the brothers in the years and months preceding the bombing, a fact we only learned after his parents spoke out from abroad and the Russian government revealed intelligence it had passed on to the FBI two years earlier questioning contacts Tamerlan made during trips back to Chechnya and Russia. WhoWhatWhy asks if the older brother was in fact a double-agent recruited by our own government here.

Like so many of these terrorist-related trials, the government narrative always seems to shade the truth, but too many Americans are dispassionate when it comes to questioning the motives of those within our government like they do those stand accused by the government, allowing the government to avoid accountability for its own actions which either directly or indirectly contribute to events designed to appeal to deeper public passions. Regardless of how Americans feel about the guilt or innocence of Dzhokhar Tsarnaev, he is entitled to a fair and impartial jury and trial no different than any other American accused of committing a crime. All Americans lose when criminal defendants are tried and convicted in a fundamentally unjust and unfair manner.

UPDATE: The First Circuit Court of Appeals wasted no time in denying the defendant's motion for writ of mandamus to stay the court proceedings for a further review of the denial of their motion for change of venue. There is a sharply-worded dissenting opinion by Judge Juan Torruella (a Reagan appointee), which sharply criticized the very briefly-worded majority opinion authored by Chief Judge Sandra Lynch (a Clinton appointee) made only six hours after hours after the government responded to the defendant's motion:

I regret that I am unable to join my colleagues in issuing today's order in this case, which is of profound importance not only for Tsarnaev but also for the people of Boston and for all of us who cherish the guarantee of constitutional rights for all litigants before this Court. My colleagues begin their order by stating they have "carefully reviewed petitioner's application for a writ of mandamus." Although I cannot speak for the majority on this point, due to the complexity of the issues raised, the mountains of documents and exhibits that need to be read (which the government has described as over 9,500 pages long), and the logistical difficulties we have had in receiving this evidence, I have found it impossible to read even a small part of all of this evidence, much less give it the careful consideration a case involving the death penalty deserves.

On the afternoon of New Years Eve, the district court entered an electronic order denying Tsarnaev's second motion to change venue -- which had been filed a month earlier on December 1st -- stating simply that an explanation of its decision "will be issued shortly." Within hours of that order, Tsarnaev filed a motion to stay the jury selection and trial, scheduled to begin on Monday, January 5, 2015, pending the disposition of the mandamus petition now being rejected by my colleagues. We afforded the government twenty-four hours to respond, and then extended this period by another two hours. It was not until yesterday afternoon, January 2, 2015, that the district court finally explained its grounds for denying the second motion for change of venue. Thus, we have had all of the relevant materials -- the current mandamus petition, the government's opposition, the district court's denial, and all previous venue-related filings, which comprise exhibits totalling thousands of pages of polling data of potential jurors, of news, of media articles, and of studies published since the tragic events of April 15, 2013 -- before us for less than six hours. 

Because of these difficulties, I am not in a position to intelligently opine as to whether the standard for mandamus relief has been satisfied. What I do know is that Tsarnaev's argument that the entire city of Boston and its surrounding areas were victimized -- as evidenced by the city's virtual lockdown and the images of SWAT team members roaming the streets and knocking doorto-door in Watertown -- is compelling. At first glance, Tsarnaev makes a much stronger case for change of venue here than there was in Skilling, where a change of venue was found to be unwarranted, and McVeigh, where a change of venue was granted. Cf. Skilling v. United States, 561 U.S. 358, 370, 383 (2010) (crediting that "the facts of the case were 'neither heinous nor sensational'" and there was "[n]o evidence of the smoking-gun" of his guilt); United States v. McVeigh, 918 F. Supp. 1467, 1472, 1474 (W.D. Okla. 1996) (finding that the "emotional burden of the explosion and its consequences" on those who lived in the area but were personally unaffected created "so great a prejudice against [the] defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial"). 

Yet, due to the artificial time constraints placed upon us, it is impossible to do more than take this quick glance. Regardless of whom you want to blame, be it Tsarnaev for waiting until less than a month before trial to file his second motion for a change of venue or the district court for waiting until the 11th hour to issue its denial, such a rushed and frenetic process is the antithesis of due process. It is unrealistic at best to presume that there is no irreparable harm in having the jury selection and trial begin since there will be another opportunity to consider this matter in the future. Considering the time and cost commitment of composing a venire and conducting voir dire -- something both the government and the district court emphasize heavily -- once jury selection begins, it will not only cause irreparable harm to Tsarnaev, but it will also set an irreversible and unstoppable process in motion. Thus, I strongly believe that a stay should have been granted to allow a full, fair, and reasoned analysis of this extremely important issue that goes to the heart of our constitutional guarantees of "an impartial jury" and "due process of law."