Boston Marathon bombing suspect Dzhokhar Tsarnaev asked a judge to move his trial to New York or Washington to secure a non-biased jury as defense lawyers seek to save him from a possible death sentence.
A survey about Tsarnaev, 20, conducted in four cities showed an “overwhelming presumption of guilt” on terrorism-related charges in Boston, where the April 2013 attack and subsequent manhunt struck fear into residents for days, his lawyers said in a court filing yesterday. The trial is scheduled to start Nov. 3.
The defense cited the prosecution of Timothy McVeigh, a former member of the U.S. military who blew up the federal building in Oklahoma City in 1995, killing 168 people, and whose trial was moved to Denver to ensure less bias among jurors. McVeigh was still found guilty and sentenced to death.
“The community impact here is even greater than that present in McVeigh, given that the bombings occurred at the Boston Marathon on the day thousands of Bostonians and others from the region gathered to celebrate the runners, the Red Sox, and Patriots Day,” the defense said in the filing.
Tsarnaev’s lawyers, who have worked on many of the highest-profile death-penalty cases in the U.S., are grappling with prosecutors over the location of the trial two months after Boston observed the first anniversary of the attack, which killed three people and injured 260.
The survey of people in Boston, Springfield, Massachusetts, Manhattan and Washington showed residents of Massachusetts were more likely to assume Tsarnaev was guilty and to believe he should be put to death, the lawyers said.
The bias is a result of “the indelible fear that friends and family could have been killed or injured, the trauma experienced by those in the region for four more days while the police sought the perpetrators, and the hundreds of thousands of Boston area residents who sheltered in place during the climactic final day of the search,” the defense said.
Prosecutors have said the change-of-venue request is an example of the defense “dragging its feet,” according to the filing by Tsarnaev’s lawyers.
Christina Sterling, a spokeswoman for the Boston prosecutors, declined to comment on the venue request. The U.S. has two weeks to file a response.
The request “has a decent chance of success, if only because the marathon bombing had such a huge and pervasive influence in Boston,” said Mark Pearlstein, a criminal defense lawyer at McDermott Will & Emery LLP in Boston and a former federal prosecutor who isn’t involved in the case.
The survey showed 57.9 percent of Boston residents believed Tsarnaev was guilty, compared with 47.9 percent in Manhattan and 37.4 percent in Washington, according to the filing. Thirty-seven percent of Bostonians want the suspect put to death, compared to 27.6 percent in New York and 19 percent in Washington, the defense said.
At a hearing yesterday, Tsarnaev’s lawyers persuaded U.S. District Judge George A. O’Toole Jr. in Boston to throw out the government’s claim that Tsarnaev betrayed his oath to the U.S. as a naturalized citizen. The lawyers argued it might make jurors resent him as an immigrant.
“Drawing a distinction between naturalized and natural born is highly inappropriate,” O’Toole said.
The ruling doesn’t affect the charges against Tsarnaev, which include using a weapon of mass destruction. The decision alters what jurors may hear when they consider a sentence if they find him guilty.
Tsarnaev, an immigrant of Chechen descent, received asylum in the U.S. when he was eight and took the oath of citizenship seven months before the attack. He was inspired by al-Qaeda and motivated by the U.S. military’s killing of Muslim civilians, prosecutors have said.
Tsarnaev is also attempting to block prosecutors from using data from his laptop computer and other evidence seized from his dormitory room, arguing authorities didn’t have proper search warrants. The suspect also wants federal agents’ interview notes thrown out because he hadn’t been read his constitutional rights to remain silent and have a lawyer present.
The defense hasn’t denied Tsarnaev carried out the attack and is focusing instead on blocking evidence that may persuade jurors to vote to execute him.
Tsarnaev’s lawyers have suggested in court filings that they will seek during the trial to place greater blame for the attack on his dead older brother, Tamerlan, saying he had contact with Islamic extremists in Russia’s Dagestan region and may have manipulated his younger brother into aiding him.
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).