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Boston Marathon bombing: Could Tsarnaev's team succeed in getting trial moved?

A federal appeals court held a hearing Thursday on whether the trial for Boston Marathon bombing suspect Dzhokhar Tsarnaev should be moved out of the city.

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This Jan. 5, 2015 courtroom sketch shows Boston Marathon bombing suspect Dzhokhar Tsarnaev, left, depicted beside US District Judge George O'Toole Jr., right, as O'Toole addresses a pool of potential jurors in a jury assembly room at the federal courthouse, in Boston.

Jane Flavell Collins/AP/File

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A lawyer for Boston Marathon bombing suspect Dzhokhar Tsarnaev urged a federal appeals court Thursday to move the trial out of the city, arguing that pretrial publicity has made it impossible to find fair and impartial jurors.

“Justice has to have the appearance of justice,” Judith Mizner, a court-appointed attorney for Mr. Tsarnaev, told a three-member panel of the First Circuit Court of Appeals.

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Legal experts consider this a last-ditch effort by the defense team to move the trial. Tsarnaev’s lawyers have filed several such motions, which have been rejected by the trial judge. Thursday’s hearing was granted by one judge on the appeals court panel.

Rosanna Cavallaro, a law professor at Suffolk University in Boston and former state assistant attorney general, says Tsarnaev’s lawyers are unlikely to win a change of venue. But she doesn’t fault them for trying.

“The role for a defense attorney in a case like this is to challenge every aspect of the process,” Professor Cavallaro says. “That’s all they got.”

Tsarnaev has pleaded not guilty to 30 counts against him, including 17 that carry the death penalty, in connection with the 2013 Boston Marathon bombing. Three people were killed and more than 260 injured when two bombs exploded near the finish line.

Jury selection for the trial is already under way. As of Wednesday afternoon, District Judge George O'Toole had provisionally qualified 61 potential jurors. The goal is to obtain 70, from which a panel of 12 jurors and six alternates is to be chosen.

The progress made in the selection process has prosecutors arguing that it is possible to seat a jury. On Thursday, prosecutor William Weinreb commended Judge O’Toole’s handling of the individual juror questioning.

“Exposure to pretrial publicity does not disqualify [people] from serving on a jury,” said Mr. Weinreb, adding that jurors could be fairly expected to form opinions based “purely on evidence presented in the courtroom.”

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Tsarnaev’s defense team has repeatedly argued that he cannot get a fair trial in eastern Massachusetts because too many people believe he's guilty and have personal connections to the marathon or bombing.

“It’s that connection and the allegiance that you’re not going to see in another jurisdiction,” Ms. Mizner said in her closing remarks Thursday. “And there is nothing wrong with that. It just means this is not the place to try this case.”
 
Boston is so saturated with pretrial publicity, Mizner said, that even cement mixers at a construction site outside the federal courthouse were emblazoned with the slogan “Boston Strong.”

For months, O’Toole has insisted that a fair and impartial jury can be selected through the juror questioning process. But the process has taken far longer than expected.

Individual questioning entered its sixth week Thursday, lasting nearly four weeks longer than O'Toole had initially estimated. A string of winter storms is partly to blame for the delay. So, too, is the difficulty of selecting jurors who are not only unbiased but also open to the possibility of sentencing Tsarnaev to death – a prerequisite for all federal death penalty cases.

The appeals court decided to hear oral arguments Thursday at the request of Judge Juan Torruella, who dissented when a three-judge panel ruled in January that it had no reason to intervene in the change-of-venue matter.

The judges did not say Thursday when a ruling will be issued.