After another snow day at federal court, jury selection resumes Wednesday in the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev.
But once again defense attorneys are asking the U.S. Circuit Court of Appeals to stop jury selection and to order Judge George O'Toole to move the trial. The defense claims that the questionnaires filled out by the pool of prospective jurors indicate that Tsarnaev cannot get a fair trial in eastern Massachusetts.
However, O'Toole has been ignoring Tsarnaev's most recent motion asking the judge to move the trial.
“We’ve been moving a little bit more slowly, but I’m not discouraged by that at all," O’Toole announced last week on the day the jury that did not yet exist was once supposed to hear opening arguments.
On the individual questioning of prospective witnesses — now up to a 114 — O'Toole added, "Progress isn't always measured by how long it takes to get a result."
The judge has been at it for nine days, at a far slower pace than he expected, though he now says he may have a jury by the end of next week.
"Being a judge, as the saying goes, means never having to say you're sorry," says Harvey Silvergate, an attorney, legal analyst and civil libertarian who thinks the trial should be moved. He says O'Toole was aiming at the defense when he expressed such satisfaction with jury selection.
"I think he's sending a message to the defense that he will not revisit the jury venue issue and sending a message to the news media and the public that he was right all along and he's going to proceed as if he were right along," Silvergate said.
Before its latest appeal, filed Tuesday night, the defense waited nearly two weeks for the judge's response to its boldest motion yet to move the trial elsewhere. The appeal cited questionnaires filled out by 1,371 prospective jurors.
The defense analysis indicates that 68 percent of the jury pool already believes that Tsarnaev is guilty, and 69 percent have identified a connection or allegiance to people, places or events at issue in the case. But the judge has not responded either in writing or from the bench.
O'Toole May Not Rule On Motion To Move Trial
"It is not unusual for a trial judge to hold a motion for change of venue in abeyance, meaning they don't rule on it," said Greg Hurley, an analyst at the Center for Jury Studies at the National Center for State Courts.
From the start, O'Toole has expressed confidence he can find a fair and impartial jury. He quickly dismissed the second defense motion that argued he could not, saying he was more confident than ever that he could. Following the third motion, the judge has said nothing.
Hurley said that in many of the instances where judges do not rule on a motion, the judges "intend to try and pick a jury, and if they are unable to find enough fair and impartial jurors, they will grant the motion. However, if they are able to pick a jury, they go ahead and deny it."
There is nothing that says O'Toole must rule on the defense motion. And if he continues to go forward with jury selection, he may be able to say that since he has formed a jury that is fair-minded and neutral, the motion to move the trial no longer matters; it's now moot.
"This judge, like other judges, has made up his mind he's going to get a jury there. So he'll go a month if he has to," said retired state Judge Robert Barton, who like O'Toole once sat in Superior Court. He speculates that O'Toole has dug in his heels.
"That's human nature, too," Barton continued. "He's already denied the motion twice. He says, 'I can get a jury out of this group.' And he'll be damned if it's going to be otherwise."
Barton also thinks the trial should be moved. In three highly publicized murder cases he presided over, he went outside his district, twice going from Lowell to Springfield to find a jury.
"You know that's the only way a person gets a fair trial, if there aren't any preconceived opinions on guilt or innocence," Barton said.
"That's human nature, too. He's already denied the motion twice. He says 'I can get a jury out of this group.' And he'll be damned if it's going to be otherwise."Judge Robert Barton on O'Toole continuing juror selection
But in its opposition to the defense motion filed two weeks ago, the government claims "fair and impartial jurors are as likely to be found in Eastern Massachusetts as anywhere else." And of 68 percent of prospective jurors who said they believed Tsarnaev to be guilty, a full 60 percent of them said that could set aside their presumption and decide the case on the evidence.
"A fair and impartial jury doesn't mean a jury who is ignorant of the facts," said former federal prosecutor Brian Kelly, now with the firm of Nixon Peabody. "As long as they can be fair and impartial in applying the law as the judge gives it to them and the facts they hear in the courtroom, then they are eligible to serve."
The longer the process of selecting a jury goes on, the more likely it is that O'Toole will find a jury that he deems qualified to serve.
"Provided they are able to pick a jury, I would certainly expect that the change of venue motion is denied," Hurley said.
That's why attorney Silverglate and others predicted the defense would return to the appeals court, as it now has, to have the court order O'Toole to act before he picks a jury.
"There is now a factual record showing a fair trial is not possible here in Boston," Silvergate said.
Silverglate is referencing those statistics about prospective jurors' presumption of Tsarnaev's guilt and the extent of their personal connections to the Marathon bombings. In the latest petition filed Tuesday night, the defense calls those the emerging facts in the case.
Appeals courts give trial judges a huge amount of deference in their decisions to seat jurors and deny a change of venue. Rarely is a federal trial moved because of prejudice.
So the defense is seeking an extraordinary order to stop a local trial from starting with the jury now being selected.
This segment aired on February 4, 2015.