Lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev made their third push to move the trial out of Massachusetts Thursday, citing data from court questionnaires that shows 68 percent of the 1,337 Boston-area residents called as prospective jurors in the case already believe their client is guilty.
In a court filing Thursday, Tsarnaev’s attorneys said roughly the same amount of potential jurors — 69 percent — have a “self-identified connection” to the April 2013 bombings, meaning they were personally affected or knew someone who was. “Stronger support for a finding of presumed prejudice in Boston is difficult to imagine,” Timothy Watkins, one of Tsarnaev’s attorneys wrote in the filing. “The existing record precludes a fair trial in Boston.”
Based on an analysis of juror questionnaires, the defense noted that just 345 prospective jurors — or 25 percent of those summoned in the case — said they were “unsure” when asked if they had “formed an opinion” that Tsarnaev is guilty, while 66 potential jurors said “no.”
The motion came just hours after court officials announced that opening arguments in the closely watched trial would be delayed. U.S. District Court Judge George O’Toole, who is presiding over the case, said earlier this month that the trial would begin next Monday. But jury selection has moved at an achingly slow pace in recent days, fueling rumors that the court would have no choice but to delay the proceedings.
Tsarnaev, 21, is accused of plotting and carrying out the twin bombings along with his older brother, Tamerlan, who was killed during a confrontation with police four days after the attacks. Tsarnaev has pleaded not guilty in the attacks, which killed three people. He is also charged with killing an MIT police officer while the brothers were on the run from authorities.
Individual questioning of potential jurors, known as voir dire, began last Thursday, and the court had suggested an interview pace of roughly 40 people a day over the last week — but as of Wednesday, the court had talked to just 61 people, with another 11 scheduled for Thursday.
The court is trying to gather a pool of 70 “qualified” jurors — people who not only have not formed an opinion about the case but also would be willing to impose the death penalty. From there, the list would be whittled down by prosecutors and Tsarnaev’s attorneys to a panel of 12 jurors and six alternates.
But the task hasn’t been easy. In recent days, many potential jurors who were questioned individually have told the judge and attorneys that they either believe Tsarnaev is guilty or that they would be unable to sentence him to death — an unsurprising development in Massachusetts, where capital punishment, on the state level, was outlawed three decades ago and many oppose the death penalty.
According to the Tsarnaev team’s analysis of the jury pool, 351 prospective jurors — 26 percent of those summoned — said the accused bomber should receive the death penalty, while 299 said “no.” A majority of prospective jurors questioned, 638, said they were “unsure” about the death penalty.
On Thursday morning, Ginny Hurley, a court official, emailed a statement to reporters calling the scheduled Jan. 26 start date for Tsarnaev’s trial “not realistic.” She said the court hopes to have an updated start date sometime next week.
But Tsarnaev’s attorneys say the delay may be futile. In a 19-page filing Thursday, they asked, for the third time, to move the trial out of Boston. But unlike their earlier requests, which were rejected by the court, in this filing their argument was bolstered with data and direct quotes from the prospective jury pool — proof, they say, that a fair trial in Massachusetts is impossible.
The defense cited dozens of jurors — identified only by number — who disclosed in questionnaires that they already believe Tsarnaev is guilty and others who have already begun thinking about how they would punish him. Prospective juror 163 wrote in the questionnaire “Why waste time on this guy? You know he is guilty.” Another possible juror, number 175, told the court, “I think a public execution would be appropriate, preferably by a bomb at the finish line of the marathon.” He went on to say that he discussed his service with someone who urged him to “make sure he gets what he deserves.”
According to the defense document, several jurors complained to the court about time and money being wasted on a trial. “We all know he’s guilty so quit wasting everyone’s time with a jury and string him up,” prospective juror 301 wrote.
When asked for a reaction to receiving the summons to potentially serve on the trial, juror 302 replied, “Waste of time, they should have already killed him.”
Judge O’Toole has twice rejected Tsarnaev’s attempts to move the trial to a neutral location, including Washington, D.C., which was proposed by the defense team last fall. In addition, Tsarnaev’s attorneys have cited the emotional trauma of the attacks on Boston residents as evidence that no one could review the case impartially.
Considering how the bombings and subsequent manhunt paralyzed the city, everyone in Boston, Tsarnaev’s attorney Judy Clarke argued in December, is “in effect, an actual victim.”
On Thursday, Tsarnaev’s attorneys renewed that argument, listing dozens of jurors who described, in vivid and sometimes anguished details, how they or someone they knew were affected by the bombings. Many told the court they knew someone near the finish line that day who was killed or injured — including some who lost limbs.
“My friend … was there and got blown up,” prospective juror 192 wrote.
Others spoke of friends and relatives who sprang into action trying to save the injured and remain distraught nearly two years later. Others cited their own anxiety in the aftermath of the attacks. Juror 522 said she had been unable to “attend any large public place or celebration where something like that could happen again.”
“I am a 29-year-old female just like Krystle Marie Campbell,” she wrote, referring to one of the victims. “That makes this case personal to me because it could have been me.”