Or more specifically, are there 18 Bostonians who can be fair?
Those questions could be addressed on Thursday at what is scheduled to be the final hearing before the trial for Dzhokhar Tsarnaev, the surviving defendant in the 2013 bombings.
Currently, the trial is slated to take place in a federal courtroom that’s some three miles away from the finish line of the Boston Marathon. But the defense has twice asked for a change of venue. The judge in the case, George O’Toole, rejected the first request, but the second one is still outstanding.
Many residents in the Boston area either were directly affected by the bombings and subsequent lockdown, or are one or two degrees removed from someone who was. In addition, media outlets have followed every twist and turn in the case, as well as the city’s recovery from the bombings.
Mr. Tsarnaev’s lawyers have argued that with the pretrial publicity, “great local prejudice will prevent a fair trial by an impartial jury.”
But unless the change of venue request is granted, jury selection is set to begin Jan. 5 at the US District Court in South Boston. Judge O’Toole has said he will cast a wide net for potential jurors, calling at least 1,000 people.
It’s “a very difficult call in terms of balancing [that] essential importance,” of having a trial in the community where the offense occurred, “versus the imperative of making sure there are fair jurors to judge this case,” says Martin Weinberg, a prominent Boston defense lawyer.
Mr. Weinberg calls the Tsarnaev case a “litmus test” for the federal criminal justice system – particularly of its ability to prosecute domestic terrorism.
“If we don’t want military tribunals, if we don’t want Guantanamo Bay, we have to demonstrate in Boston – or wherever it’s moved – that this criminal justice system can give this most unpopular man a very fair trial,” he says.
Several legal analysts told the Monitor last month they were surprised the Tsarnaev trial hasn’t been relocated. The trial for Oklahoma City bomber Timothy McVeigh – probably the closest analogue to the Tsarnaev case – was moved to Denver on the grounds he wouldn’t be able to receive a fair trial in Oklahoma.
But the course of events in other, recent cases suggests that a fair jury can be formed. In particular, some point to the 2013 trial of infamous Boston gangster James “Whitey” Bulger, which took place at the same court in South Boston.
Before that trial, there was an expectation it would be “difficult if not impossible” to seat an impartial jury, says Tom Nolan, an associate professor of criminology at Merrimack College in North Andover, Mass.
But thousands of potential jurors were screened, and “the court proved otherwise,” Professor Nolan says. “I think that is grounds for optimism in our ability to get the same in the trial for Mr. Tsarnaev.”
Still, the Bulger and Tsarnaev cases have stark differences. Mr. Bulger was convicted of playing a role in 11 murders and was given two life sentences, but the death penalty wasn’t on the table. He also wasn’t on trial for one of the worst acts of domestic terrorism in US history.
The court has said it does not plan to sequester the Tsarnaev jury. The practice is rarely used now even for the most high-profile trials, but it was employed in 2013 for the trial of George Zimmerman in the shooting death of teen Trayvon Martin – at a cost of about $33,000 to Florida taxpayers, according to USA Today.