If Tsarnaev Can’t Get a Change of Venue, Who Can?

A couple of weeks ago, the United States District Court in the District of Massachusetts denied Dzhokhar A. Tsarnaev’s motion to change venue.  U.S. District Court Judge George O’Toole Jr. stated in a 10-page opinion stated, “The underlying events and the case itself have received national media attention. It is doubtful whether a jury could be selected anywhere in the country whose members were wholly unaware of the Marathon bombings.”

The pre-trial publicity standard has been developed by the U.S. Supreme Court over the past few decades. Taking up the issue again most recently in Skilling v. United States, the majority of the justices used a “totality of circumstances” standard to decide motions to change venue.  As you may have correctly assumed, this case involved the infamous Enron scandal and its former CEO Jefferey Skilling.  One of the questions at issue at the U.S. Supreme Court was whether the jury was biased because of the location of the trial. 

The trial took place in Houston, Texas, where Enron was headquartered.  The majority looked at the totality of circumstances and pointed out the following factors in ruling that the jury was not biased: “(1) Houston's size-a city with 4.5 million individuals ‘eligible for jury duty,’ (2)the absence of a confession or ‘other blatantly prejudicial information’ in local media reports, (3) the fact that four years elapsed between the Enron's bankruptcy and Skilling's criminal trial, and (4)Skilling's acquittal on some counts with which he was charged. The majority found that ‘[a]lthough the widespread community impact necessitated careful identification and inspection of prospective jurors' connections to Enron, the extensive screening questionnaire and follow-up voir dire were well suited to that task. And hindsight shows the efficacy of these devices; . . . jurors' links to Enron were either nonexistent or attenuated.’ A presumption of prejudice the Court stated ‘attends only the extreme case[,]’ which it described as proceedings that entirely lack ‘the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.’” 

Coming back to the Boston Marathon bombing trial, Judge O’Toole does not feel that Tsarnaev’s trial falls into the category of an “extreme case.”  Using the analysis outlined in Skilling: (1) The Greater Boston area is home to approximately 4.6 million people; and (2) Tsarnaev infamously confessed his crime in a note he left behind in the boat he was found in.  Not being one to question a sitting U.S. federal district judge, it is surprising that the motion to change venue was denied, even when “the trial could be playing out during the two-year anniversary of the terrorist attack.” Moreover, the fact that the trial is taking place in a city where the attacks occurred and where a massive manhunt took place involving not only Boston, but its suburbs and surrounding areas, it is almost impossible that a jury will be able to provide the “the solemnity and sobriety to which a defendant is entitled to.”

As one law review article questioned in its title “If Skilling Can't Get a Change of Venue, Who Can?”, I ask if Tsarnaev can’t get a change of venue, who can?