Judge denies motion to suspend Tsarnaev trial over Charlie Hebdo comparisons

The judge in the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev rejected defense claims that comparisons with the recent Charlie Hebdo killings in Paris led to 'extraordinary prejudice.'

Jane Flavell Collins/AP
In this Jan. 5, 2015, courtroom sketch, Boston Marathon bombing suspect Dzhokhar Tsarnaev (l.) is depicted beside US District Judge George O'Toole, as the judge addresses a pool of potential jurors at the federal courthouse, in Boston. The judge on Wednesday rejected a motion by defense lawyers to suspend jury selection.

[Update: This story was updated at 2:45 p.m.]

A motion to suspend the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev for one month was quickly denied by the trial judge Wednesday morning.

The defense team for Mr. Tsarnaev filed a motion Tuesday night asking the court for a suspension in jury selection in light of the comparisons being drawn between the marathon bombing and the recent terrorist attack on the satirical French weekly Charlie Hebdo. Tsarnaev is accused of planning and executing the two bombings near the Boston Marathon finish line in 2013 with his older brother, Tamerlan.

The one-month suspension "would allow some time for the extraordinary prejudice flowing from these events – and the comparison of those events to those at issue in this case – to diminish," said Tsarnaev's defense team in the motion.

But US District Judge George O'Toole responded Wednesday by denying the motion. The judge has been reading questionnaire responses filled out by 1,300 potential jurors last week during the first stage of jury selection. These responses, he said in a one-paragraph reply to the motion, have "so far confirmed, rather than undermined, my judgment that a fair and impartial jury can and will be chosen to determine the issues in this case."

The speed of the response was surprising to some outside observers – O’Toole wrote that “no response from the government is necessary” – but the decision was only the latest the judge has made in response to several efforts from Tsarnaev’s lawyers to move or delay the trial.

O’Toole has twice rejected motions from Tsarnaev’s defense to move the trial out of Boston, a measure that also would have resulted in major delays.

Rosanna Cavallaro, a law professor at Suffolk University in Boston, says the Charlie Hebdo motion “didn’t have a tremendous likelihood of succeeding.”

“Each day we get further to the trial starting it’s harder to say, ‘OK, stop everything,’ ” adds Professor Cavallaro, who is also a former state assistant attorney general.

The defense motion cited multiple parallels between the two attacks being drawn by the press, politicians, and commentators, including the fact that the suspects in both attacks were brothers; that they were "home-grown" terrorists, both influenced by the lectures and writings of US-born Islamic militant Anwar al-Awlaki; and that they attacked civilians in a Western city.

The six-page defense motion cited numerous media reports comparing the two terrorist attacks, including one USA Today article quoting Rep. William Keating (D) of Massachusetts as saying: "Against the backdrop of jury selection for Dzhokhar Tsarnaev, it's like Boston is reliving what happened all over again."

The motion also highlighted quotes in the press from former Boston Police Commissioner Ed Davis, who called the parallels between the two cases "shocking," and terrorism consultant Evan Kohlmann, whom prosecutors intend to call as a witness at the Tsarnaev trial, according to the motion.

Mr. Kohlmann was quoted by USA Today as saying that, while it was too early to determine how similar the two attacks are, "it's tempting to look at the ... suspects in France through the lens of the Tsarnaev brothers."

"These parallels so widely expressed cannot be lost on potential jurors," the motion read.

The motion added that the Charlie Hebdo attack occurred before all the potential jurors were given instructions by the judge, including instructions to not read media reports relating to the Tsarnaev case. The attack occurred on Jan. 7, the third and final day of the first stage of jury selection.

The motion also notes a rally that was held on Boston Common over the weekend in solidarity with France.

"The probability of exposure to reports of the Paris events ... is exceedingly high," said the motion. "The reaction described by Congressman Keating is one that is likely shared by countless Boston area residents, including those in the jury pool."

The motion argues that it will take time for jurors and Bostonians as a whole "to come to a reasoned evaluation of what, if anything, the events in Paris signify" in relation to the Boston Marathon bombings and the Tsarnaev case.

"The Boston bombings are being newly placed at the center of a grim global drama," the motion reads. "At a minimum, the Court should pause long enough to let this latest storm subside."

On Wednesday, Yemen's Al Qaeda branch claimed responsibility for the Charlie Hebdo attack. Also on Wednesday, the first issue of Charlie Hebdo since the attack went on sale.

The defense motion in the Tsarnaev case came less than two days before the second stage of jury selection is scheduled to begin. Given the high-profile nature of the case – it is widely considered the biggest death penalty case since the trial of Oklahoma City bomber Timothy McVeigh 20 years ago – the court is casting an extraordinarily wide net to find jurors.

Jury selection is scheduled to resume Thursday with personal interviews of each prospective juror.

Thomas Nolan, an associate professor of criminology at Merrimack College in North Andover, Mass., said that the motion could be “laying groundwork” for an eventual appeal once the trial is over.

But Cavallaro noted that the language of Judge O’Toole’s denial appears to have anticipated the appellate process.

“Jurors have indicated that they’re able to set aside whatever coverage they may have encountered,” says Cavallaro. “Now that he’s got that question answered I think it’s smart of him to include that in his answer, because it’s harder for them to argue that in appellate court later.”

Either way, the Charlie Hebdo killings are likely to surface throughout the trial as the aftermath of the attacks continues to unfold around the world. The questioning of potential jurors will likely have to be longer and more comprehensive in light of possible exposure to Charlie Hebdo coverage, and efforts to insulate jurors from such coverage may have to be more extreme.

The events in Paris could also impact how both sides frame their arguments in court. The government is expected to portray Tsarnaev as a radicalized Muslim extremist, while the defense is expected to counter by describing him as a normal American teenager influenced by his older brother.

“The prosecutor will likely use the [Charlie Hebdo] link to show that Dzhokhar Tsarnaev is every bit as violent, depraved, desperate, and despicable as the Kouachi brothers,” says Professor Nolan, referencing the two men believed to have carried out the attack in Paris last week.

“The defense, on the other hand, may use the link to demonize the Kouachis and to try and paint Tsarnaev as not nearly as radicalized as the Charlie Hebdo killers,” adds Nolan.

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