A federal judge on Wednesday ruled that the trial of the accused Boston Marathon bomber will begin next week as planned, and it will take place in Boston.
On New Year’s Eve, Judge George O’Toole denied motions by lawyers for Dzhokhar Tsarnaev to change the venue and to delay the start of the trial.
As a result, jury selection is set to begin Monday at the district courthouse in South Boston.
Mr. Tsarnaev’s lawyers had cited extensive pre-trial publicity that they argued would make it impossible for him to receive a fair trial in the city. They also noted that, as currently scheduled, the penalty phase of the trial would likely occur during the two-year anniversary of the attack.
Two bombs went off at the finish line of the 2013 Boston Marathon, killing three people and wounding more than 260 in an act of terrorism that stunned the country. Police arrested Tsarnaev after a three-day manhunt and a shootout in which Tsarnaev's older brother, Tamerlan, was killed.
If found guilty, Tsarnaev, 21, could face the death penalty. In the penalty phase of the trial the jury would have to decide, unanimously, if Tsarnaev should be sentenced to death or given life in prison.
Wednesday’s decision marks the second time Judge O’Toole has denied defense motions to move the trial outside of Boston. For many legal observers, it is not surprising that he chose again to keep the trial in Boston. The judge said in his first decision in September to keep the trial in Boston that, while the case has attracted significant media attention, the defense team failed to show that the hype would prejudice a fair, impartial jury.
“I can’t think of what’s happened in the interim that would cause [O’Toole] to reverse himself,” says Rosanna Cavallaro, a law professor at Suffolk University and former state assistant attorney general. “I think the question has been well argued already. He wasn’t asleep the last time.”
Instead, she adds, the elapsed time made it even less likely that the trial be relocated. In particular, the court has been preparing for what is expected to be a long jury selection process. O’Toole has said he plans to call up to 1,000 potential jurors from across eastern Massachusetts to the court house next month, and prosecution and defense lawyers have been negotiating procedures for how potential jurors will be questioned and selected.
“What has changed is we’ve moved forward. We’ve created expectations, procedures are in place,” Ms. Cavallaro said. “Those would have to be dismantled [if the trial was moved].”
In addition, Cavallaro says the successful prosecution of three of Tsarnaev’s friends — Dias Kadyrbayev, Azamat Tazhayakov, and Robel Phillipos, who in the days after the bombings threw Tsarnaev’s backpack in the trash and then lied to federal investigators about it — has already shown that a jury is capable of reaching a verdict on charges related to the bombings.
Mr. Kadyrbayev and Mr. Tazhayakov have been found guilty of conspiracy, obstruction of justice, and lying to federal investigators. Mr. Phillipos was found guilty in October of lying to federal investigators.
“The fact that they have been tried means people aren’t so blinded by [media coverage] that they can’t listen to evidence,” says Cavallaro.
She adds that jurors who spoke after the trials made it clear that they “listened to lots of nuance.”
“The thing we know about jurors is that they take their responsibility very seriously,” Cavallaro adds.
Because the location of a trial determines where the jury pool will be selected from, the debate over whether the trial should stay in Boston has focused attention on whether the Eastern Massachusetts area can provide Tsarnaev an impartial jury, despite the impact the bombings had on the region.
Christopher Dearborn, a law professor at Suffolk University, says that by filing multiple motions to change the trial’s venue, even if they get denied, the defense team is building a strong record for a possible appeal in the future.
“I think they have to keep asking for it over and over,” says Mr. Dearborn. “The defense continues to renew this because they understand how significant it is, and [are] making sure the appellate record is very strong on this issue.”