Criminal – Change of venue – Mandamus

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Where a petitioner has filed a second mandamus petition seeking a change of venue, a U.S. District Court decision denying the petition must be affirmed because the petitioner is unable meet his burden of showing that (1) the judge was manifestly wrong, (2) the petitioner’s right to relief is clear and indisputable, (3) irreparable harm will result and (4) the equities favor such relief.

“Petitioner Dzhokhar A. Tsarnaev asks this court to compel the district court to grant a change of venue because of widespread pretrial publicity that he alleges has so tainted the potential jury pool that he will be unable to receive a trial before a fair and impartial jury in Boston. … We deny the Second Mandamus Petition because petitioner has not met the well-established standards for such relief and so we are forbidden by law from granting it. …

“While there has been extensive publicity in this case, the atmosphere here is not to be characterized as disruptive to the ability of the petitioner to be adjudged by a fair and impartial jury. …

“The nearly two years that have passed since the Marathon bombings has allowed the decibel level of publicity about the crimes themselves to drop and community passions to diminish. … It is true that there has been ongoing media coverage of the advent of the trial and petitioner’s pre-trial motions, both locally and nationally. But that would be true wherever trial is held, and the reporting has largely been factual. These factors persuade us that petitioner has not demonstrated a clear and indisputable right to relief based on a presumption of prejudice from pretrial publicity. …

“We have reviewed the entire voir dire conducted to this point by the court and the parties and the process has been thorough and appropriately calibrated to expose bias, ignorance, and prevarication …

“… We cannot say that the procedures put in place by the trial judge are either insufficient on their face or so inadequately implemented as to justify an interruption of the process and a change of venue. …

“Moreover and most importantly, this Petition requests that we interfere in the careful jury selection process that has been ongoing in the district court, despite the fact that the petitioner remains able to raise claims of lack of an impartial jury on direct appeal. Such direct interference in an ongoing trial matter by an appellate court is inimical to our process of justice and our respect for the reasoned decisions of district court judges. Just as we are unable to conclude that it is clear and indisputable that the petitioner cannot receive a fair trial by an impartial jury in the Eastern Division of Massachusetts, the relevant interests weigh in favor of allowing the jury selection process to continue. And they weigh against taking the unprecedented step of abandoning our ‘primary reliance on the judgment of the trial court.’ …”

Dissenting judge’s comments

Torruella, J. “… The actions taken by this court today pave the way for a trial that is fair neither in fact nor in appearance.

“… Given the impact of the bombing and subsequent press coverage on the entire city, it is absurd to suggest that Tsarnaev will receive a fair and impartial trial in the Eastern Division of the District of Massachusetts. There is no sound basis for refusing to apply a presumption of prejudice to a high-profile, omnipresent, emotionally-charged case like this — particularly where the entire Boston community has been terrorized, victimized, and brutalized by such a horrendous act of violence. No amount of voir dire can overcome this pervasive prejudice, no matter how carefully it is conducted.

“The whole world is watching to see how the American legal system treats Tsarnaev, even if he is allegedly the most dreadful of defendants. Every move taken is scrutinized to see if the bedrock American rights of ‘innocent until proven guilty’ and the ‘right to a fair trial by an impartial jury’ are given to a foreign-born defendant accused of terrorism — among the most heinous of crimes. Unfortunately, both the district court and majority fail to uphold these rights, and this failure damages the credibility of the American judicial system.

“I do not dispute that ‘[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.’ … But in my forty years on the bench, both as a trial judge and as an appellate judge, I am unaware of a situation more ‘extraordinary’ than this one. The district court has demonstrated a clear abuse of discretion. Contrary to the district court’s assessment and the decision of the majority today, mandamus relief is not only appropriate, but also necessary to assure that Tsarnaev receives the fair trial that is mandated by our Constitution. Therefore, for the reasons explained herein, I respectfully — but vehemently — dissent.”

In Re: Tsarnaev, Dzhokhar A. (Lawyers Weekly No. 01-048-15) (80 pages) (Per curiam) (Torruella, J., dissenting) (1st Circuit) Judith Mizner, with whom William W. Fick and the Federal Public Defender Office were on brief, for the petitioner; William D. Weinreb, with whom Carmen M. Ortiz, Aloke S. Chakravarty and Nadine Pellegrini were on brief, for the respondent (Docket No. 15-1170) (Feb. 27, 2015).

Click here for the full-text opinion.