Case Information
*2 TORRUELLA, Circuit Judge, dissenting.
I regret that I am unable to join my colleagues in issuing today's order in this case, which is of profound importance not only for Tsarnaev but also for the people of Boston and for all of us who cherish the guarantee of constitutional rights for all litigants before this Court. My colleagues begin their order by stating they have "carefully reviewed petitioner's application for a writ of mandamus." Although I cannot speak for the majority on this point, due to the complexity of the issues raised, the mountains of documents and exhibits that need to be read (which the government has described as over 9,500 pages long), and the logistical difficulties we have had in receiving this evidence, I have found it impossible to read even a small part of all of this evidence, much less give it the careful consideration a case involving the death penalty deserves.
On the afternoon of New Years Eve, the district court entered an electronic order denying Tsarnaev's second motion to change venue -- which had been filed a month earlier on December 1st [1] -- stating simply that an explanation of its decision "will be issued shortly." Within hours of that order, Tsarnaev filed a motion to stay the jury selection and trial, scheduled to begin on Monday, January 5, 2015, pending the disposition of the mandamus petition now being rejected by my colleagues. We afforded the government twenty-four hours to respond, and then extended this period by another two hours. It was not until yesterday afternoon, January 2, 2015, that the *3 district court finally explained its grounds for denying the second motion for change of venue. Thus, we have had all of the relevant materials -- the current mandamus petition, the government's opposition, the district court's denial, and all previous venue-related filings, which comprise exhibits totalling thousands of pages of polling data of potential jurors, of news, of media articles, and of studies published since the tragic events of April 15, 2013 -- before us for less than six hours.
Because of these difficulties, I am not in a position to intelligently opine as to whether the
standard for mandamus relief has been satisfied. What I do know is that Tsarnaev's argument that
the entire city of Boston and its surrounding areas were victimized -- as evidenced by the city's
virtual lockdown and the images of SWAT team members roaming the streets and knocking door-
to-door in Watertown -- is compelling. At first glance, Tsarnaev makes a much stronger case for
change of venue here than there was in Skilling, where a change of venue was found to be
unwarranted, and McVeigh, where a change of venue was granted. Cf. Skilling v. United States,
561 U.S. 358, 370, 383 (2010) (crediting that "the facts of the case were 'neither heinous nor
sensational'" and there was "[n]o evidence of the smoking-gun" of his guilt); United States v.
McVeigh,
Yet, due to the artificial time constraints placed upon us, it is impossible to do more than take this quick glance. Regardless of whom you want to blame, be it Tsarnaev for waiting until less than a month before trial to file his second motion for a change of venue or the district court for waiting until the 11th hour to issue its denial, such a rushed and frenetic process is the antithesis of due process. It is unrealistic at best to presume that there is no irreparable harm in having the jury selection and trial begin since there will be another opportunity to consider this matter in the future. Considering the time and cost commitment of composing a venire and conducting voir dire -- something both the government and the district court emphasize heavily -- once jury selection begins, it will not only cause irreparable harm to Tsarnaev, but it will also set an irreversible and unstoppable process in motion. Thus, I strongly believe that a stay should have been granted to allow a full, fair, and reasoned analysis of this extremely important issue that goes to the heart of our constitutional guarantees of "an impartial jury" and "due process of law."
I respectfully dissent.
By the Court:
/s/ Margaret Carter, Clerk cc: Hon. George A. O'Toole, Mr. Robert M. Farrell, Clerk, United States District Court for the District of Massachusetts, Ms. Judith Mizner, Ms. Miriam Conrad, Mr. David I. Bruck, Mr. Timothy G. Watkins, Mr. William W. Fick, Ms.Judy Clarke, Mr. William D. Weinreb, Ms. Dina Michael Chaitowitz, Mr. Aloke Shankar Chakravarty, Mr. Donald L. Cabell, Ms. Nadine Pellegrini, Mr. Steven D. Mellin, Mr. Matthew R Segal.
Notes
[1] The government was initially given two weeks to respond but did not file its opposition until December 22, 2014 .