Dzhokar Tsarnaev. (Photo courtesy of the Federal Bureau of Investigation)
Attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev made their case for moving his trial to Washington this week, citing “an extraordinarily high” level of pretrial publicity in Boston and support there for the death penalty.
In a motion filed on Thursday, they cited expert testimony by Edward Bronson, a professor emeritus of political science at California State University, Chico, that “an overwhelming presumption of guilt and prejudgment as to the penalty exists in the District of Massachusetts.”
Bronson, whose work centers on publicity and juror behavior, reviewed coverage as of July 26 in one major newspaper in each venue the defense team has suggested for the trial—Boston; Springfield, Mass.; New York; and Washington.
He concluded that The Boston Globe’s 2,420 news stories as of that date was “an extraordinarily high number that exceeds even the number published throughout Oklahoma” before Timothy McVeigh went on trial in the Oklahoma City bombing. McVeigh was convicted and put to death in 2001.
In court papers, Bronson said the Globe coverage “matches or exceeds any other capital case I have studied over 40 years.”
The motion also cited public opinion poll findings that 37 percent of Boston area residents favor the death penalty for Tsarnaev, compared with 35 percent in Springfield, 28 percent in New York and 19 percent in the District of Columbia. That Boston figure, Bronson said, was “significant and disturbing.”
The Boston U.S. attorney’s office declined to comment.
The motion builds on Tsarnaev’s initial June request to move his trial.
He is accused of setting off two bombs in April 2013 with his brother, Tamerlan, who was fatally wounded in a subsequent shootout with police. The bombs killed three people and wounded 260. Tsarnaev is also charged with murdering Massachusetts Institute of Technology police officer Sean Collier while he and Tamerlan were fleeing police a few days after the bombings.
The government seeks the death penalty for Tsarnaev. His trial is scheduled to start on Nov. 3.
Legal observers were skeptical of Tsarnaev’s arguments, including former Boston federal prosecutor Jeremy Sternberg, now a white-collar litigation partner in Holland & Knight’s Boston office. “I’m not sure they’ve got the material to conclude that Boston is so prejudicial that a fair jury couldn’t be picked here,” Sternberg said.
The standard is a showing that local prejudice would prevent a fair trial, he said.
Richard Broughton, an associate professor of law at the University of Detroit Mercy School of Law who worked on death penalty cases during a tenure in the Justice Department, was similarly unpersuaded.
A prospective juror who is categorically against the death penalty would not be qualified to sit on the jury, Broughton said, and the defense would challenge any prospective juror who avowed that he or she favored death for Tsarnaev.
“No matter where the trial is held, both sides will have ample opportunity to probe and challenge prospective jurors with respect to their views on the death penalty,” Broughton said.
Sheri Qualters can be contacted at firstname.lastname@example.org.