In Re: Tsarnaev v.

14 Carolina, 22 F.3d 747

Municipality of TSARNAEV, Cir.2014) (“[F]ailure (1st specif- In re Dzhokhar to assert irretriev- objection [has] R & [the R] ic Petitioner. by the to review

ably waive[d] No. 15-1170. appeals.” court of court and th[is] district Dep’t Corr. & v. (quoting Cortés-Rivera of Appeals, United States Court Rehab, (1st P.R., 21, 27 Cir. F.3d First Circuit. 2010))). rooted The defamation claim preserved not third-party publication was Feb. review. for our a com under As defamation theory, has Flood

pelled self-publication no by providing claim here waived by failing to support for it and factual made identify any specific error of law disposed of this The district court below. to delve no need quickly: “[T]here issue theory Shelly Flood the case. into presented any actual evidence Flood, 2013 WL self-publication.” true on at *16. The same by com The claim for defamation appeal. self-publication is waived. See pelled Partners, Sajo, v. & Carreras García (1st Cir.2010) (“[I]ssues 25, 32 n. 5 F.3d manner, perfunctory to in a unac adverted developed companied some effort (quot waived.” argumentation, deemed Calderón, States v. ing United Rivera (1st Cir.2009))). n. 4 F.3d

III. stated, reasons we vacate the For the summary on the dis- grant judgment por- charge and hostile work environment employment of Flood’s MHRA dis- tions claim for further crimination and remand opinion. proceedings consistent with grant summary judgment We affirm on the balance discrimination Flood’s claim, as claims. as well on her defamation party

Each shall bear its own costs. So ordered. LYNCH,

Before Judge, Chief HOWARD, TORRUELLA and Circuit Judges.

PER CURIAM.

Petitioner Dzhokhar A. Tsarnaev asks this court to compel the district court to grant of venue because of wide- spread pretrial publicity that alleges he has potential jury so tainted the pool that he will be unable to receive trial before a fair impartial in Boston. See generally Second Petition for ofWrit Man- deny damus. We the Second Mandamus Petition because has not met the well-established standards for such relief and so we are forbidden law from granting it. Supreme

The Court’s admonition over a ago century today: is true theory juror of the law is that a opinion who has formed an cannot be impartial. Every opinion which he may necessarily entertain need not have that days effect. these of newspaper en- education, terprise and universal every public almost, case interest as a of necessity, brought matter to the at- intelligent tention of all the people in the vicinity, scarcely any one can be among found those best fitted for it, has not who read or heard of and who impression some or some opin-

respect ion in to its merits. States, v.

Reynolds United 98 U.S. (1878). 8 Otto 25 L.Ed. Thus, any high-profile case will receive significant media attention. It is no sur- prise people in general, especially Mizner, Judith with whom W. William well-informed, will aware of it. Fick and the Federal Public Of- Defender however, Knowledge, not equate does brief, fice on for the petitioner. were disqualifying prejudice. Distinguishing the two is at heart of between Weinreb, William D. with whom Carmen process. selection Ortiz, Attorney, M. United Aloke S. States Chakravarty Pellegrini and Nadine place high- Trials have taken other brief, respondent. profile for the cases in the communities where the intervene is to em court to appellate After occurred. underlying events weapons potent the most ploy “one of bombing, which Trade Center 1993 World Dist. Cheney v. U.S. peo- judicial a thousand arsenal.” injured over killed six 367, 380, 124 D.C., S.Ct. of millions 542 U.S. hundreds Court and inflicted ple (2004) (citation and conspirators the six 159 L.Ed.2d damage, dollars omitted). To com in the Southern marks quotation each tried internal charged were course, change The district court to pel New York. the district District of in each that motions not change-of-venue must show petitioner denied year wrong, than a after but case, manifestly less the first court was district Yousef, v. States relief is bombing. petitioner’s right See United also that the 411596, at 93-Cr.0180, 1997 WL harm irreparable 512 .indisputable, No. clear (S.D.N.Y. 18, 1997); States July United result, favor such equities *3 will 93-Cr.0180, Salameh, 1993 WL No. 380-81, 390,124 v. S5 S.Ct. relief. Id. drastic 1993) (S.D.N.Y. 15, 364486, Sept. at *1 us, say we cannot In the case before bombing year after the (finding less than met these onerous standards petitioner has “willing in York would be that a New relief must be denied. and so open mind” and try this case with solely based to “render decision able I. evidence, thereof,” lack even if

upon the multiple with charged Petitioner bombing jurors had heard of the be- bombings at the arising crimes out fore). Yousef, the the conviction in After 2013, 15, killing April Boston Marathon v. affirmed. United States Second Circuit injuring over 200. Some three and (2d Cir.2003). 56, 155 Yousef, 327 F.3d death potentially carry the these crimes Indeed, 11 terrorist September after the 18, 2014, petitioner filed penalty. On June 2001, of Zachari- prosecution attacks claiming change motion to venue his first brought in the Eastern Moussaoui was as and the attendant pretrial publicity by car from Virginia, minutes District inflam- attitudes were so hostile and public The district court denied a Pentagon. matory that a motion, Fourth change of venue in a that he be tried requiring had arisen interlocu- dismissed Moussaoui’s Circuit 24, 2014, September different district. On Moussaoui, v. tory appeal. United States in a court denied the motion the district (4th Cir.2002). 612, Fed.Appx. order, In its and detailed order. thorough here, Further, like the 1998 the events used court addressed the evidence and, Trade Center bombing of World his motion support petitioner attacks, received September Skilling set out in applying the standards Peti- States, and international attention. national v. United jury anywhere deny not that a (2010), tioner does concluded 177 L.Ed.2d 619 exposed to country will have been had failed to demonstrate petitioner Indeed, media attention. some level of impossi- publicity rendered pretrial that, pre- in .his data shows polling own jury in empanel impartial a fair and ble to venue, D.C., Washington 96.5% of ferred of Massachusetts. Petitioner the District heard of the bom- survey respondents had mandamus at the time did not seek bings the Boston Marathon. first motion’s denial. 1, 2014, petitioner filed December sought relief is an On

The mandamus venue, arguing change second motion to extraordinary remedy, rarely granted, and had for a of venue convince that the need stringent requirements. To concluded, continuing acute because of third become more “the motion to change less, more, venue prejudicial in the media and al- has even not merit publicity than prior by government ones.” Id. The court leged leaks information further “[cjoncerns maintained that December without about sources. On opinions who have fixed or emotional con- waiting for the district court’s written deci- events, nections motion, or who are vulnerable sion on the second filed to improper influence from cover- media petition his first mandamus with court. [cjourt age, are legitimate concerns. The petition On January while parties are diligently addressing consideration, before us remained under them voir through process.” dire the district court-issued its written deci- motion, noting sion on the second venue This court a hearing held on the Second motion the new did raise .that Petition February 19, for Mandamus on genuinely apart new issues those supplemental filings. and allowed concluding the first motion and 'that no The Petition Second for Mandamus prejudice of had arisen that largely before us makes the same claims justify change would of venue. On Janu- and relies on same types the of as data the 3, 2015, ary this court the denied motion to Third Change Motion for of Venue which stay jury petition, and first selection the the district court denied. Petitioner ar concluding petitioner had “not made gues that a presumption of exists extraordinary required the showing jus- here aggregated because data shows too Tsarnaev, tify mandamus relief.” In re many in community jury and in the (1st Cir.2015). 775 F.3d 457 pool expressed have he opinion 5, Jury January selection commenced guilty jurors and those have been 2015, January and continues to date. On to, by, affected have connections petitioner filed the district crime. continuing He claims the media change court his third motion venue attention problems. these He exacerbates which he detailed asserted and argues that judge rejecting erred in questionnaires completed by extensive presumed his claim that prejudice has 1,373 jurors prospective comprising the ve- this, argues, been From established. he nire, combined with the of record individu- voir finding dire cannot succeed in a fair date, al compiled voir dire mandated a impartial jury. so, argues, This is he pervasive of venue because of bias judge quali even if the trial after voir dire and prejudgment during uncovered that- jurors fies a determining after so process. After filed this Peti- qualified At impartial. to be fair and tion, the district court denied the Third point, judge jury, the trial has not sat Venue, Change part Motion for of sixty provi rather but has identified over set the reasons forth in its earlier deci- jurors sionally qualified still who are sub sions, part and in because “the voir dire ject challenges.1 to peremptory We con process successfully identifying potential clude that petitioner fails to demonstrate a capable serving who are of as fair clear indisputable right to relief. impartial jurors in this case.” United II. Tsarnaev, States v. No. 13-CR-10200- (D.Mass. 2015). light GAO Feb. “In The a “dras writ mandamus is experience,” remedy; potential spawn district court tic” its “to ongoing given parties twenty-three quired by applicable have each received rule. Fed.R.Crim.P. 24(b)(1). peremptory challenges, three more than re- 18 by “jury crime to trial wherein the (right disrupt the order litigation

piecemeal committed”). shall have been of the State system,” manda justice ly processes only in sparingly “must be used mus Second, the Amendment Sixth Pearson, re extraordinary situations.” In defendants the to criminal “secures Cir.1993) (citations (1st F.2d 656 990 jury.” Skilling, impartial trial an omitted). marks quotation and internal 2896; see also at 130 S.Ct. 561 U.S. correction “immediate for the is reserved right,' ensur amend. VI. This Const. U.S. by the district court acts or omissions” trial,” also “a fair ing the defendant power.” usurpation of “amounting to an requirement as “a basic characterized (citation quotation marks internal Skilling, 561 U.S. at process.” of due omitted). Indeed, generally “mandamus is (citation quota and internal through prism inappropriate thought omitted). situations, In some marks tion judicial dis- exercises inspect which to mandates constitutional these Assocs., Inc., cretion,” In re Bushkin Notwithstanding the constitution tension. (1st Cir.1989), F.2d take place that trials where al command involves some measure process selection committed, defendant’s crimes pretrial publicity is “When discretion. jury and a fair trial impartial to an rights issue, judgment on the ‘primary reliance that in extreme cases the may require [especially] good trial court makes to a venue other than where be moved ” Skilling, sense.’ have described crime was committed. We (alteration (quoting in original) 2896 S.Ct. “there is an cases as those where such 427, 415, 111 500 Virginia, v. U.S. Mu’Min preju risk that the level ever-prevalent (1991)). 1899, 114 L.Ed.2d 493 We S.Ct. setting is so the trial permeating dice the district to conclude are unable possibly a defendant cannot dense the conclusion based on court’s reasoned trial.” States impartial receive an United in this case warrants and the law facts (1st Quiles-Olivo, 182 684 F.3d v. extraordinary relief. of such issuance Cir.2012).2 rare, circum In those extreme process “a of due be denial

stances Applicable The Mandamus Standard A. change of request for a of law to refuse Here. Louisiana, Rideau v. 373 venue.” 663 10 L.Ed.2d 83 S.Ct. constitutional intersection of two (1963). at the heart of resolution mandates lie goes to trial First, petitioner if Importantly, both mandamus claim. petitioner’s venue now and is pro- Amendment without Article III and the Sixth convicted, opportunity will have the he criminal defendant shall be vide that a of a fair challenge based on lack ... raise a in where the Crimes tried “the State Const, appeal. In- jury on direct impartial and committed.” U.S. ... have been deed, customary mechanism 3; that is the Ill, 2,§ id. amend. VI cl. see also art. publici- 21(a) extreme cases where served for those Federal Rules of Criminal 2. Rule of the and in nature. ty is both extensive sensational provides "[u]pon the defen- Procedure 21(a)’s motion, requirements differently, Rule Stated court must transfer the dant’s exclusively apply cases in almost against another tend to proceeding that defendant to publicity pervasive pretrial has in- great a which that so if the court is satisfied district community past passions in the host flamed prejudice against the defendant exists in Quiles-Olivo, breaking point.” 684 F.3d transferring the defendant cannot district that Cir.2012) (citations, (1st quo- internal impartial there.” at 182 and trial obtain a fair marks, omitted). and alteration tation "Generally, presumption of is re-

19 challenges presented showing such that his which issuance of the See, Quiles-Olivo, (cita- e.g., indisputable.” assessed. F.3d writ is clear and tions, marks, at 182-84.3 internal quotation and altera- omitted). tion That standard of is review route, typical Instead of traveling extraordinarily deferential to the ruling for a writ petitioner asks this court cases, the trial our judge. In “mandamus stage. pretrial mandamus this And the granted has customarily when case petition particu- mandamus in this clearly lower court was without juris- larly process unusual. It came diction, or exceeded its discretion to such ongoing jury selection is an attempt degree that its actions amount to a usurpa- jurisdiction a trial prevent this power.” tion of In re Recticel Foam going urges ap- forward. Petitioner (1st Cir.1988) Corp., 859 F.2d court to pellate intervene halt that (internal marks, quotation citations, juror process selection the trial court. omitted). that, below, alteration explain does so fact As we despite He the dis- court, neither sitting trict in the “locale where of those conditions is true here. effect,” is said had publicity to have its

necessarily properly overcoming under the law addition on perception depth daunting requirement, draws its “own first extent of that might news stories influ- must also two other meet standards. Mu’Min, juror.” 427, First, ence U.S. at he must demonstrate that he no 1899. The district has not adequate relief; other source in other yet completed that process, and we are words, irreparable he must show harm. mindful that an appellate court’s “after- (citation In re Bulger, 710 F.3d at 45 omit impact the-fact assessments of media’s ted). “designed This condition to ensure on-the-spot ... lack compre- that the writ will not used aas substi possessed” hension situation tute for regular appeals process,” Che judge. Skilling, U.S. at ney, 542 U.S. at 124 S.Ct. 2576 2896; see n. S.Ct. id. at 378 130 S.Ct. (citation which, omitted), noted, as we have (“[D]istrict-court on calls the necessi- open petitioner remains to after of ty transfer are granted healthy meas- should he be convicted. Petitioner does of appellate-court respect.”). ure rely not on an that argument he will suffer irreparable injury, argues a to but failure petitioner’s Because claim venue “arises accept wrong, is so argument obviously on his appeal direct after trial but on mandamus,” irreparable injury reputation the is to the petition for writ it of more, subject judicial system. And, exacting to “an even federal sec burden” ond, that, petitioner “a must appeal. than would be on direct In re demonstrate (1st Cir.2013).4 Bulger, balance, 710 F.3d the favor of equities issuance petitioner “satisfy The Bulger, must burden of writ.” In re 710 F.3d at 45. argument, purposes opinion, At position 3. oral it was the 4. For of of this we will as- petitioner change that denials of motions to prove argu- sume that the can venue are abuse reviewed for of discretion ment that the court's district denial of the that a of and clear abuse discretion would pretrial Change for Third Motion of Venue give rise to a clear to relief. entitlement Peti- all, subject to mandamus review at re see In change tioner characterized “the of venue in Kouri-Perez, (1st Cir.1998) (un- 134 F.3d 361 being this case” as "at the heart of the Sixth curiam), published per though not all circuit by impartial Amendment” to trial an agree. courts jury. and, prejudice of that, presumption on a mean based standards these Together, second, prejudice actual contami- for the ex- whether petition considering when mandamus, convicted him. appeals which traordinary nated writ an extraordinari- employ to court is bound surveyed and first Supreme Court review. Relief form of ly deferential cases, including distinguished its earlier (1) if it is clear and allowed here Louisiana, 723, 83 373 U.S. Rideau v. court erred in the district indisputable (1963), and 10 L.Ed.2d 663 S.Ct. Third Motion petitioner’s denying those the differences between discussed (2) Venue, suf- petitioner would Change of Skilling. The Court then dis- and cases if the district irreparable harm fer in- considerations cussed several (3) venue, change not ordered were publicity that the its conclusion formed petitioner. clearly favor equities presumption produced had not Houston These onerous standards id. at 45-46. See First, the Court examined prejudice. met here. have not been characteristics of the commu- the size and in which the crimes occurred. Out Indisputable nity is not Clear B. people 4.5 million Publicity Requires population, a Houston’s that Pretrial service, a much Change eligible for Venue. number than the small area greater Supreme Court’s bound We are Second, in Rideau. considered Court Skilling, a case which decision community widespread there was a while after convic- question was examined venue crimes, Skilling held impact from contrast, case, attempt is an tion. This inspection identification and with careful judge change venue to force a trial Enron, a jurors’ connections to prospective findings that no despite his non-existent or attenuated links jury with arisen, there are seated. The Court to Enron could be ca- qualified to date5 jurors provisionally community im- “widespread considered with a fair pable providing defendant guilty plea pact” of Enron’s failure prose- criminal Skilling trial. involved the trial, shortly before of a co-defendant Skilling, a former Enron Jeffrey cution of that the “exten- concluded each instance executive, for certain crimes committed follow-up screening questionnaire sive collapse prior much-publicized to Enron’s task of were well suited” voir dire city of Houston. badly which harmed ef- identifying inspecting possible venue from Skilling twice moved Skilling, 561 fects of these influences. Houston, city, home and the dis- Enron’s Third, After U.S. judge denied both motions.6 trict some, all, press coverage Skilling of was while the convicted of but not Skilling was him, kind,” significant “not the Court found charges against appealed, he of the alia, about him “contained fair-trial claim that the news stories asserting, inter a first, blatantly prejudicial or other no confession encompassed questions: two which or viewers type information of the readers by failing court erred whether the district reasonably expected to shut could not trial to a different venue to move the pleaded guilty. shortly qualified” jurors after a co-defendant “provisionally are still 5. The 369, 372, challenges. subject peremptory Skilling, 130 S.Ct. to be to 561 U.S. at See Skilling’s place trial did take without 2896. change Skilling of venue 6. first moved for changing claims were thereaf- venue his indicted; he he re- four months after was appeal. rejected direct on ter considered trial, weeks before newed the motion three

21 382, Rideau, Louisiana, 2896. a sight.” Id. at 130 S.Ct. 1963 case from from Fourth, noted that the Court several Court found it was process a denial due years’ passed time between Enron’s col- to refused a request have for change of lapse Skilling’s during 50,000 at venue where least in people which dropped. media 150,000 “decibel level” of attention area of saw video staged of a 383, Considering at 2896. all 130 S.Ct. by interview resulting Sheriff in a factors, of these the Court held that no defendant, “confession” who had not prejudice arose and advised his to counsel. 373 not the district court did violate constitu- U.S. at 83 S.Ct. The Su- declining in tional limitations preme Court this characterized as “kan- 385,130 at venue. Id. S.Ct. 2896. 726, garoo court.” Id. at 83 S.Ct. 1417.8 cannot apparent petitioner While there has publicity been extensive relief, high for meet bar set mandamus case, in atmosphere here is not to parties’ based on the and the submissions disruptive be characterized as the abili- parts parties of the record the have relied ty adjudged by to be in arguments their us. Petitioner fair impartial jury. This case inis argues bombings impact- that the have so Texas, sharp contrast v. with Estes 381 community ed entire Boston-area U.S. S.Ct. L.Ed.2d presume prejudice any jury must we (1965), pretrial publicity where drawn the Eastern Division of Mas- televising of in proceedings a notorious sachusetts.7 Yet his own statistics reveal setting criminal case resulted in aside the that hundreds of members of the venire despite showing conviction absence of not an opinion have formed that he is prejudice. This case is unlike the atmo- guilty. responses The voir dire have con- “bedlam,” sphere Sheppard v. Max- quota- firmed this. Petitioner’s selective well, 384 U.S. are, tions from the sealed materials as the (1966), 16 L.Ed.2d 600 where the trial said, misleading. district court own Our duty judge protect did not fulfill review of those materials shows that the inherently prejudi- murder defendant from provi- district court is in fact identifying publicity cial which saturated the commu- sionally qualified jurors few with no or nity or to control disruptive influences in and, most, attenuated claimed connec- during courtroom trial. Nor is this bombings. tions to the repeated case marred broadcast of

Boston, like is a Skilling, questionable taped Houston a defendant’s confes- large, metropolitan diverse area. Boston- sion months trial in a two before small 150,000 Rideau, area residents their people, obtain news from area of as contrast, array By petitioner’s vast of sources. 1417. As S.Ct. pool present any 7. We have a view than different the dissent’s members at the description envi- the courthouse and its exposed courthouse were to the cement mixer going on rons. While selection has been single day present on the it was in the area. dump there was not a view courthouse of a true, these Even if assertions that does showing or a truck view of a construction site presumed sort. show Strong Presumably a Boston dis- banner. referring photograph a of a sent to taken Indeed, prior on 8. the Court relied cases in building partially banner on a constructed "voluntary which so-called confessions” were 2014, early present has not from which Rideau, extracted brutal force. 373 U.S. at during jury Nothing in 2015. can selection 726, S.Ct. 1417. 83 be seen from the courthouse of at banner petitioner this time. Nor that has the claimed 22 confession, stories there were admitted, reported there no confes- has

counsel history, police his Indeed, Irvin’s criminal much of what about at all here. sion identification, he faced a lie line-up of fac- consists “publicity” calls petitioner test, placed that he had been and of the events detector accounts tual news media press the crime. The at the scene of petitioner has publicity The period. if plead guilty “offer to Skilling, 561 kind,” reported Irvin’s received, “not while sentence, but also the 2896, 99-year a 382, promised has not been of at 130 S.Ct. U.S. hand, determination, of the the other at- character that prejudicial grossly penalty, the death prosecutor to secure tended Rideau. to 24 petitioner had confessed years passed that have nearly two (the of these burglaries operandi modus allowed bombings has the Marathon since compared to that of the robberies was publicity level of about the decibel noted).” Id. at similarity murders and the community drop crimes themselves 725-26, day be- very 1639. The 81 S.Ct. Yount, Patton v. See passions diminish. trial, reported newspapers fore the 2885, 1025, 1034, 104 S.Ct. 467 U.S. to all six murders. that Irvin had admitted (1984). It is true that there L.Ed.2d 847 726, Id. at 81 S.Ct. 1639. coverage of the ongoing media has been pre-trial petitioner’s of the trial and advent adjoining After venue was moved to motions, nationally. But locally both charge, county for his trial on one murder held, trial is that would be true wherever only eleven the voir dire commenced largely been factual. reporting was committed months after the murder persuade us that These factors after he was arrested eight months indisput- a clear and has not demonstrated very In that small commu- and confessed. relief based on a able 30,000, newspa- nity in which the local publicity. pretrial inflammatory articles pers containing the households, heavy reliance on Irvin v. were delivered to 95% of the Petitioner’s Dowd, 717, 1639, of defendant’s confession 81 S.Ct. details 366 U.S. 99-year (1961), guilty promised if plead does not assist him. offer L.Ed.2d 751 sentence, Irvin must with the details of his very combined The facts are different. history, required vacation of the light of later caselaw criminal also be understood Irvin, Skilling and Patton. judgments. The trial court lower such as case, “for cause excluded 62% of the venire state habeas the defendant was sus- itself to” defendant’s having opinions as fixed as pected committing six murders near 727, Id. at Ninety Evansville, guilt. 81 S.Ct. 1639. Indiana. He was arrested and jurors under- personalized percent prospective of those barrage highly thereafter a conducted, incidentally, against going him dur- voir publicity “was unleashed dire — remaining “in of all those preceding months front ing the six or seven Yount, 1025, Patton v. id. at trial,” including panel,” 467 U.S. 81 S.Ct. n. 81 L.Ed.2d 847 police prosecutor S.Ct. statement (1984) as to opinion some had confessed to all six murders. that he —“entertained Indeed, sus- intensity from mere Id. at guilt -ranging — Irvin, certainty.” to absolute many picion references described the press six, The voir dire 81 S.Ct. 1639. slayer as the “confessed defendant actually judgment sat in art- who violator and fraudulent-check parole (internal eight of the defendant revealed ist.” 81 S.Ct. 1639 omitted). at the outset. thought .guilty he was marks In addition to twelve quotation

23 cry concluding from the situation that the publicity Id. That is far surrounding petitioner’s pretrial before this court. proceedings —and community’s knowledge about the Boston Irvin, fact, twenty-three in was followed bombings Marathon not crossed from Patton, —has years Supreme where later Patton, familiarity, as in to the denial of Court found no the defendant’s in evidenced a case like Irvin. There, jury. to an impartial showed 2 of voir dire that all but [t]he Petitioner and compare the dissent also questioned 163 veniremen about case to a this case district court’s exercise of it, that, 77%, had heard of discretion to in change venue United they carry opinion admitted would an v. McVeigh, F.Supp. States 918 1467 higher into the box. This awas (W.D.Okla.1996).9 The in McVeigh issue Irvin, in percentage than where 62% of was not whether the venue the Okla- the 430 veniremen were dismissed for City bombing homa trial should be moved they opinions cause had because fixed City, from Oklahoma where crime was petitioner’s Final- concerning guilt. committed. The parties including the — ly, ... 14 8 of the and alternates government agreed to move the trial. — at actually seated admitted that some Id. at 1470. agreement There is no such they time had formed an to opinion as question instead, in McVeigh, here. guilt. Yount’s was whether move the trial elsewhere in Patton, 1029-30,104 S.Ct. or out entirely. Oklahoma of the state (footnotes omitted). empha- The Court trial judge’s That exercise of discretion sized of time passage and its effect McVeigh in to move the trial to Denver prospective jurors’ opin- the fixedness of says nothing judge about how the trial ions, saying forgotten some had and others here should exercise his discretion. Nor persuaded “would need again.” to. judge McVeigh was it meant As the omitted). (footnote S.Ct. “[tjhere wrote, many are so variables in- simply was thus existence that no two be compared volved trials can opinions prospective jurors, but the among regardless apparent similarities.” Id. at fixedness, degree of their critical was similar, 1473. Insofar as the cases emphasized, the Court. As the Court McVeigh judge’s decision to move the trial “[prospective jurors represent sec- a cross suggest to Denver does not a decision community, tion of the and their education an keep Boston is abuse of experience vary widely.... Every tri- and indisput- discretion —much less a clear this, al judge understands and under our able one. system judge it is that who is best situated competency impar- to determine to serve question The dissent asks the rhetorical tially.” Id. at This S.Ct. 2885. here, Supreme “if not when?” The Court petitioner’s key admonition ar- undercuts Rideau, that question answered where gument poll percentages unrepresented twenty-min- defendant’s questionnaire question answers decide the ute, in-depth in the form confession of an prejudice. of a with the was recorded “interview” Sheriff Here, say multiple district times in a small we cannot and broadcast parish. clearly indisputably erred Louisiana That interview and not dissent, dissenting even footnote 36 our that not has made. argument colleague has made an unfounded process found, The careful selection very- jury pool. “in a trial, the Court the later expressed confidence judge’s he the trial trial —at which Rideau’s real sense was Rideau, however, jurors, is finding 373 in sufficient murder.” guilty to pleaded persuasively 1417. Three of by the record supported 83 S.Ct. U.S. at at least the interview jurors argument.11 had viewed undercuts this jury were of once, two members First, necessary to describe deputy sheriffs. that has process ongoing jury selection contrast, thing oc- Here, no such by court. underway the district been curred.10 so, says that our caselaw doing we observe trial beacon ... is the guiding that “[a] Ongoing Jurg Process Selection The C. conducting responsible for judge, who is Preju- Suggest Pervasive Does Not from we defer the voir dire and whom dice. position.” appellate more distant our itself, petitioner publicity Beyond the Quiles-Olivo, pro- at 183. The 684 F.3d jury ques- responses to on the also relies ways mirrors many here in cess utilized the voir dire the content of tionnaires and Supreme Court found the one which the prejudice. He as- finding as a basis Skilling. appropriate See from the we have seen that what serts Here, the district 130 S.Ct. 2896. pre- that process confirms juror selection prospec- a thousand judge summoned over raised a indisputably publicity jurors into six jurors, tive divided those man- sufficient to prejudice presumption they fill out a panels, requested Petitioner’s that his trial be moved. date one-hundred-question long and detailed prejudice that the claim is thus essential parties questionnaire under oath. nothing great him is so against to confer and file under permitted Every offset it. court can do will district panel, report respect with to each seal juror in the Eastern Division potential parties whom the listing persons automatically disquali- Massachusetts is for cause. agreed should be excused fied, a re- That alone is he maintains. Thereafter, to file parties were ordered the five million assumption about markable report suggesting separately under seal Division and one people in the Eastern follow-up questions issues or specific col- dissenting Our much to be doubted. course of individual voir pursued too, that this “second ana- league, argues dire. route,” lytical based on the course twenty twenty-five groups of date, an irrefuta- Smaller jury reveals selection to the Bos- among prospective jurors have come ble omitted). quotation At this internal marks remarkable statement 10. The dissent's being image petitioner process being taken from a point, in the selected nearly "quite likely boat was seen 100% trial. There can and has not been seated for popula- Division of Massachusetts the Eastern yet unseated and be no viable claim that the unfounded; we can completely find tion” is finally qualified jurors would result even the record for that contention. no basis in prejudice. from actual in a which suffers claims that all of To the extent now argument make an 11. Petitioner does not provisionally qualified jurors suffer prejudice. jury will suffer from actual prejudice, review of presumed or actual our "[ajctual finding post-trial Nor could he. A is not record satisfied us that it the entire prejudice hinges whether the seated quali- indisputable provisionally clear and partiality that actual at trial demonstrated jurors are or that the district fied biased incapable setting they were aside.” erred. Quiles-Olivo, (citation and 684 F.3d at 183 courthouse,12 and, one, one have should appropriately ton be excused for cause. by the court questioned first follow-up parties. with from the At then Our dissenting colleague comes to the day, end of each counsel have con- the opposite conclusion, claiming that the jurors agreed ferred and that certain length jury process selection and hardship. be struck for cause or for should the responses of venire the thus far indi- argument The court has heard on contest- pervasive cate prejudice. so, In doing jurors and a decision ed reached about however, the dissent confuses expo- mere prospective jurors day’s in the which sure publicity to with “disqualifying preju- may be group provisionally quali- deemed which, the second of when dice”— fied. widespread throughout jury the pool, is particularly to a presumption relevant have reviewed the entire voir We dire prejudice. See United States v. Angiulo, by the point conducted court and (1st Cir.1990) (“Where 897 F.2d parties process the and the has been thor- a high the percentage of venire admits to a ough appropriately calibrated to ex- disqualifying prejudice, about civic resili- bias, pose ignorance, prevarication.13 ence and recovery. It is not about wheth- the district in denying As court noted the petitioner er guilty is or not of the crimes Venue, Motion Change Third charged. buys That someone a Boston Strong proof T-shirt is not that he or she experience the dire suggests of voir ... could not be impartial fair and if selected process including that the full sum- — potential juror as a question monsing expanded jury pool; an utiliz- guilt, a court properly question the ing a lengthy questionnaire jointly de- remaining jurors’ impartiali- avowals of veloped by [e]ourt; parties added)). ty....” (emphasis giving parties ample time to review jurors, questionnaires, research and con- matter, As an initial the dissent con- advisers; with jury sult their selection tends that the length selection permitting both the [c]ourt and the process genesis this case has its in the thorough to conduct voir parties dire—is pervasive prejudice permeating through working jurors jury pool. ferret out those process who But a selection Boston, bombings 12. Petitioner has never made the claims 13. The now the murder aof security arrange- made the dissent policeman, other criminal events at the ments Boston courthouse as to the trial charged place did in fact take and were heavi- potential somehow have contaminated ly covered the media around the world. jury pool, jurors eventually such that instructs, Reynolds separate As ais mat- Indeed, picked impartial. cannot be fair and petitioner ter from the matter whether is reject "impression” we the dissent’s that se- charged. guilty of the crimes See 98 curity necessary petitioner is because is "ex- Seeing coverage 155-56. media of the for- traordinarily dangerous.” Security, to the prejudiced. mer does not mean viewer is contrary, no doubt will contribute to the safe Further, many provisionally qualified in the Further, orderly trial. conduct pool coverage. Similarly, did not follow that purport dissent cannot and does not to de- Strong the Boston theme is about civic resili- arrangements security ju- scribe for the recovery. ence and It is not about whether Importantly, who will rors sit. even if this guilty or not of the crimes case were a federal transferred to courthouse charged. buys That someone a Boston place, appropriately high security in another proof Strong T-shirt is not that he or she arrangements place. simply would be in This impartial could not be fair and if selected as a appropriate not an consideration in this potential question juror guilt. on the case. case, unsurprising that entirely it is in this length is not unusual weeks of several court, parties, have terms.14 or historical the district contemporary either require carefully known to have been time to differentiate “[M]ajor ample cases taken jury is seat- more before the have six weeks who those individual between Stephen S. Neubauer & David W. ed.” but are able to exposed publicity Law, Courts, Meinhold, Process: Judicial those who aside and put exposure (6th States in the United and Politics put opinion they cannot developed have ed.2013). hay the dissent all the Despite process em- Together, the careful aside. for the eligibility petitioner’s makes court, including by the district ployed reality guaran- all but penalty, death demean- opportunity gauge “face-to-face pro- selection more detailed longer, tees a “information credibility,” or and fact, process jury In selection cess.15 jurors’ regarding questionnaires from the in comparable perfectly is in this case and sources of backgrounds, opinions, capital recent only other length with court “a have afforded the district news” in the District jury processes selection jury fitness for sturdy foundation to assess v. See United States Massachusetts. 395, 130 Skilling, 561 U.S. service.” (D.Mass.) No. 1:01-cr-10384 Sampson, commend, not de- should S.Ct. 2896. We (seventeen jury running days of selection to en- rigorous efforts cry, district courts’ 27, 18, 2003 October September from guaranteed a trial defendants are sure Gilbert, No. 2003); v. 3:98- United States their Sixth Amend- commensurate with (nineteen (D.Mass.) jury days of cr-30044 rights. ment 16, 2000 running from October selection 17, 2000, provisionally through November quotes a dissenting colleague also Our two to seven qualifying approximately juror allegedly “representative” variety of jurors per day). that in an effort to demonstrate responses prej- jury disqualifying rife with pool

Moreover, logic to count defies us to doubt the avowals requires udice that court has taken to care- efforts the district all members of the impartiality from eliminate, any fully explore, reality of the record is In venire. But the the existence of the same.16 showing as weeks, jury the trial of Black Panther 14.Jury take selection for can sometimes selection high-profile required complicated particularly Bobby in or Seale took thirteen weeks Cockrell, See, e.g., Miller-El v. 537 cases. potential jurors. Id. the examination of 1550 1029, L.Ed.2d 154 trial of Charles at 923 n. 28. And the murder (2003) capi- (noting jury that selection 931 process. a week voir dire Manson featured six weeks); five State v. murder case took tal (2013) Addison, N.H. 87 A.3d 57 165 selection, larger jury "a (explaining that from Hawkins, Capital Punishment and Bill See "approximately jury pool,” than usual look A Trial Prosecu- the Administration Justice: days” during which time "over 300 seventeen Perspective, Judicature tor's prospective jurors reported to the courthouse that, Texas, (2006) (ndting selection State, selection”); Md. jury Davis v. for death-penalty handle cases counties that often (Md.Ct. App. 611 A.2d weeks, typically while in locales takes three (noting Spec.App.1992) that in "states such as penalty a "rare instance” the death where jury ... and Florida and New York California "may longer”). last much selection may celebrity cases consume selection in And, weeks”). historically, a or three four argument any 16. The dissent makes the nothing lengthy jury process is nov- selection during voir dire in al., to be unbiased found Expediting Levit et el. -See William H. This is fact then cannot "indifferent.” Study, Empirical 44 S. Cal. Voir Dire: An (1971). topsy turvy. example, For L.Rev. 923 & n.28 comments, selectively plucked those clear that he or she was able to put aside questionnaire responses voir impressions initial he or she 1,300 testimony jurors, dire of over are and, note, the we defense did also hold— nothing representative.17 close to It is a object juror to that for cause.18 judicial system to the disservice to claim Nor do we think such statements so otherwise. pool common among jurors of excused majority quoted The statements that a court must infer bias among others in the dissent regarding views of Tsar- who have provisionally qualified. been guilt, extreme, naev’s and all of the most is not surprising pool of over questionnaires jurors come from the thousand with varying opinions, parties agreed who the to excuse and were some will strong make statements that excused without questioning. individual disqualify them from service. Others sense, parties and court have expressed ability have their to be fair and plainly acknowledged that those members impartial. honesty answers, of their pool are not representative subconscious, conscious who, pool than 250 more members con- trast, probed by dire, have thus far been called back extensive voir as the Su- Still questioning. quotes preme individual other in approved Court Skilling. potential ju- involve statements made The putative “personal connections” by acquaintances rors or coworkers which proffered by the also dissent are mischar- hardly probative potential the ju- are of acterizations of the record. Many of the any event, own ror’s attitudes. In those ju- prospective connections attributed to jurors provisionally qualified. were never are, clearly, rors tangential. attenuated or They were either not back called for indi- quoted And all but two of those come from vidual voir dire or for struck cause after questionnaires jurors the of panels whose district judge the was able to assess their have yet questioned. not been The record in person. single juror demeanor aWhile gives that, us no reason doubt their like been provisionally qualified among the congeners from first group panels, whom the several the dissent discusses as hav- ing expressed guilt, those with the views on the full con- closest connections will be of text his or her statement mild made struck on ’of agreement parties the the or explain dire, We 17. the jurors’ limited relevance of these context of entire those voir there specific jurors is no category statements to each indication that those are the dis- biased. However, lists. describing sent it is worth notes, passing, The dissent in that one of aggregate mentioning in the them what jurors provisionally qualified the on selected thirty-two dissent the does not. Of the selec- questionnaire his or her that he or she would quotations presents tive the dissent in bullet- be put opinion “unable” to aside his or her fashion, point Dissenting op. see regarding guilt. par- the defendant’s But the twenty-one jurors come from who were expressed ties juror no concern about court, by by agreement stricken the district and, any concern that have been war- parties, Eight the of for more cause. come by juror’s ranted initial the selection on questionnaires pan- whose questionnaire, eliminated was voir dire. yet individually questioned. have els not During juror questioning evidenced process Given results of the voir dire thus unequivocal ability clear and to base his or far, nothing suggests any in the record solely presented her decision on evidence jurors expressing those will Indeed, bias nevertheless during trial. the defense neither provisionally qualified. Finally, while juror's questionnaire asked about this answer quotes objected juror's qualification three do come from voir dire of nor to the for provisionally qualified jurors, two taken cause. in the demonstrated, presump- that a indicates quo- the three for cause. Of by the court cannot be exists which tion that are by the dissent presented tations say overcome, cannot disagree. we We already questioned, one among panels by the place put procedures ques- called for individual juror was not on their insufficient judge are either struck for the other two were tioning and as to inadequately implemented face or so questioning. following cause and a process interruption justify publicity, exposure for the Finally, as convinced Nor are we change of venue. “juror impartial- again emphasize we compel far such results thus require ignorance.” ... does not ity Indeed, as the district step. drastic Skilling, 561 U.S. noted, presentation “the defendant’s many fact that original). The (emphasis from the quotations series of selective exposed to some jurors have been misleading be- 1300-plus questionnaires alone, proba- is not publicity, measure fairly repre- quotations cause in the any prejudice” “pervasive tive question- of the content of the sentative addition, of the dis- In four jury pool. too, filings in the generally.” naires So are from nine selective statements sent’s sum, and in the dissent. before us during single juror of a statements court’s length of the district neither moreover, dire; juror, who was voir nor the senti- process selection careful motion for government’s on the struck any provide as a whole ments of the venire event, is, letter law black cause. mandamus, that concluding, basis communi- knowledge that “extensive the entire prejudice taints pervasive putative the crimes or the ty either pool. render is not criminal itself sufficient constitutionally Dobbert a trial unfair.” Not Demonstrated D. Petitioner Has Florida, 282, 303, 97 432 U.S. S.Ct. v. Irreparable Harm. added). (1977) (emphasis L.Ed.2d 344 a clear has not established Petitioner any that the mere existence of “To hold relief but we indisputable right to or inno- guilt notion as to the preconceived injury any in event. irreparable address more, accused, without is suffi- cence of an use of designed prevent law is to pro- the cient to rebut post-trial normal mandamus to circumvent be to juror’s impartiality would spective review, petitioner attempts appellate as Irvin, impossible an standard.” establish 380, 124 at S.Ct. Cheney, here. 542 U.S. 81 S.Ct. 1639. 366 U.S. is con- petitioner In the event charges more of the victed on one or than a voir dire tak- Ultimately, rather him, ap- have the to hours, against he will Skilling, as in the ing a total of five voir, to this conviction and sentence peal his appropri- in this ease has dire taken — argument venue court and raise the To the ately think —several weeks. we layer of review is itself again. That double that this suggests that the dissent extent For that dire, guarantee process.19 of due the sentiment it has lengthy voir suddenly dissenting colleague contrary our claims to the 19. The dissent's exactly opposite. He contends contradictory, say least. claims the confusing the unique magnitude face will maintaining throughout opinion a case of this Despite his any for retrial elsewhere because publicity difficulties decibel of in the Boston that the jury presumably outside of subsequent one greater, much and more consis- area has been — Massachusetts, tent, if conviction is overturned coverage nationwide has slow- while the 31-32, 34, "exposed dwindled, grounds venue Dissenting op. at on ly see —will not suffer been petitioner irrepara- ongoing court, reason will in district despite injury show irreparable ble nor can he the fact that petitioner remains able to injury to the courts. raise impartial claims of lack an on appeal. direct Such direct interference in heavily on Petitioner relies our decision an ongoing trial matter an appellate both Bulger argue he and the court process is inimical to justice our system reputation legal will suffer respect our for the reasoned decisions irreparable injury prevail if does not he of district judges. Just as we are pretrial Bulger his petition. involved a unable to conclude that it is clear and very different question different stan- indisputable that the cannot re- question dards. There the was whether a ceive a fair impartial jury in reasonable member of the public might Massachusetts, Eastern Division of the rel- question judge’s ability preside im- evant weigh interests favor of allowing partially, due to nature of prior selection process to continue. employment. Bulger, re F.3d at 49. they And weigh against taking unprec- No such presented issue is here. In Bul- step abandoning edented our “primary well, as ger, the other conditions for man- judgment reliance on the of the trial Here, they damus were met. have not Skilling, 386, 130 court.” 561 U.S. S.Ct. met. Mu’Min, (quoting 500 U.S. at 1899) (internal quotation S.Ct. marks Equities E. The Balance of do not Fa- omitted). Granting vor Mandamus. petitioner’s Given failure to meet III. standards, two

prior he is not entitled to equities. test balance of the But even The Second Petition for Mandamus is then, the equities balance of the does not denied. petitioner, arguments

favor whose insuffi- ciently TORRUELLA, provisions Judge credit the Circuit Constitution’s (Dissenting). the trial be where held the crimes “ peers committed. Tsarnaev’s ‘[Rjegardless of the heinousness of the Boston area will the jury. constitute charged, apparent guilt crime community Members will have ac- offender[,] or. the station life which he to the cess trial and to the court room and occupies,’ justice system our demands spillover courtrooms. The victims and wit- appearance trials that fair in both are and nesses are located here will not be States, fact.” Skilling v. United 561 U.S. forced to undertake the burdens of travel (2010) 130 S.Ct. 177 L.Ed.2d 619 elsewhere. The same is true of those who (Sotomayor, J., concurring part and dis- known petitioner have as a resident and senting Dowd, in part) (quoting Irvin v. community. member of the 717, 722, 366 U.S. 81 S.Ct. 6 L.Ed.2d (1961)). importantly,

Moreover and most this Pe- taken by The actions this requests tition today way that we interfere in for a pave trial that is process careful fair in appearance. selection neither in fact nor trial,” harm, daily testimony publicity, irreparable of the events first “the elude such victims, witnesses, given by the that, produced will be in locations the dissent experts," presented by and "all the evidence earlier, pages vigorously so contends have Yet, government.” Dissenting op. at 46. paid far to less attention this case. puzzled we are the dissent can how con- 394, 402, 48 L.Ed.2d begin- of this coverage press The case— (1976). on the my forty years But in itself and the sub- bombing ning with bench, judge a trial and as an both as with the culminating manhunt sequent a situa- judge, I am unaware of order, appellate continuing thereaf- sheltér-in-place “extraordinary” than this one. victims, tion more Boston’s of the with stories ter has demonstrated The district court as one united healing coming together Contrary to the clear abuse of discretion. pretrial of the coverage city, and the deci- assessment and district court’s legal in American unparalleled events—is today, re- majority mandamus bombing sion of impact history. Given but also neces- only appropriate, lief is not coverage on the en- press subsequent assure that Tsarnaev receives sary-to suggest Tsar- city, it is absurd tire by our Constitu- fair trial that is mandated impartial trial a fair and naev will receive Therefore, explained for the reasons tion. of the District of in the Eastern Division herein, vehemently— I respectfully There is no sound basis Massachusetts. —but of dissent. apply refusing omnipresent, high-profile, to a Background20 I. partic- like emotionally-charged case this — community ularly the entire Boston where exploded April On two bombs victimized, terrorized, and brutal- has been Mara- near the finish line of the Boston a horrendous act of violence. ized such Boylston thon on Street downtown Bos- amount of voir dire can overcome No ap- killed and people ton. Three were matter how care- prejudice, no pervasive injured. were proximately 264 others fully it is conducted. ran from the scene in others Countless days, the next four a mas- terror. Over watching to how world is see whole responsible manhunt for those en- sive system treats Tsar- legal the American day, authori- April On the third naev, sued. allegedly if he is the most even photos surveillance and ties released video Every move taken of defendants. dreadful Dzhokhar suspects: Tamerlan and if the bedrock Ameri- is scrutinized see night, That while the brothers Tsarnaev. proven guilty” until rights can of “innocent Boston, trying they allegedly to flee impar- a fair trial an “right carjacked po- and killed an MIT SUV foreign-born to a de- jury” given tial subsequent In a shootout with lice officer. among the fendant accused of terrorism — seriously Tsarnaev was police, Tamerlan Unfortunately, most heinous of crimes. (hereinafter, injured. Dzhokhar Tsarnaev majority fail to both the district court “Tsarnaev”) temporarily was able to es- rights, and this failure dam- uphold these cape, by allegedly driving over his' part credibility judi- of the American ages the brother. system. cial remedy Finally, April the search had nar- dispute that “[t]he

I do not one, rowed to the Boston suburb of Watertown. is a to be invoked mandamus drastic move, In an authorities extraordinary unprecedented situations.” Kerr v. only in Cal., advisory, ef- “shelter-in-place” called for a N. Dist U.S. Dist. Court Events, (Jan. summary Bombing Boston.com a brief thon 20. This section contains 2015), http://www.boston.com/news/local/ surrounding bombing and sub- the events minute-by-minute sequent manhunt. For a massachusetts/2015/01/05/timeline-boston- marathon-bombing-events/qiYJmANmó days, recap see Sara Morrison of those four DYxqsusVqóóyK/story.html. O’Leary, Mara- and Ellen Timeline Boston fectively in placing city ing every police lockdown: resi- passing car and armored surrounding in and dents Watertown impromptu parade” vehicle in an and resi- Cambridge, proper, New- areas —Boston dents in “danced the streets outside Fen- Belmont, ton, ordered Waltham —were way Park.”23 (Boston’s T not to leave their homes. The not Most—if all—of this four-day ordeal transportation system) was shut public was live on shown television reported down, public were as most businesses real-time newspa- internet. Print While residents confined to offices. meanwhile, pers, published recaps of daily homes, police FBI offi- agents, their local events, previous day’s including the cers, and SWAT team went members pictures of bloodied twenty-block door-to-door radius of Tsarnaev.24 searching Watertown for Tsarnaev. weeks, Over the next few nationwide later, in a hiding he was found boat Hours continued, dwindled, and, coverage slowly backyard. a resident’s Tsarnaev was exception with story the occasional firefight from a bloodied with authorities here-and-there, eventually ended. written a and had note on the boat claim- Massachusetts, however, the not story did Muslim, you ing “[w]hen attack one Instead, (both end. the local news televi- you all the Mara- attack Muslims” and that sion print) continued to cover all thon victims were collateral damage.21 bombing details of the and its aftermath. arrest, Immediately upon May- Boston reporting The focused on Tsar- him”; got or Thomas Menino tweeted “We naev, city but on as a whole. Cover- Boston Department Police tweeted age included stories of the victims and over. “CAPTURED!!! The hunt is friends, their family bravely those search is done. The terror over. who And Meanwhile, victims, justice help has won.”22 risked their lives to Water- streets, town residents cheer- community “flooded the how the entire came together.25 Schworm, 21. Cramer & Maria Peter Note ute. feeds to the Live local television media Motive, May Details on coverage bombing Bomb Boston Boston manhunt Offer Globe, May http://www.bostonglobe. below.”); embedded Boston Transit Shut com/metro/2013/05/16/sources-bomb-suspect- Down, Nearly Sheltering 1 Million Place dzhokhar-tsarnaev-took-responsibility-for- Hunt, (Apr. amid Terror NBC News 2013), marathon-attacks-note-scrawled-boat/UhBOm http://usnews.nbcnews.com/_news/ EByeWVxGd IRAxzOtO/story.html. ostontransit-shut- 2013/04/19/17822687-b down-nearly-1-million-sheltering-in-pláce- got Bombing 22. "We him!”: See Boston Sus- (embedding amid-terror-hunt?lite a video Alive, pect Captured (Apr. NBC News caption firefight with the "Video of between 2013), http://usnews.nbcnews.com/_news/ police”). suspects and 2013/04/20/17823265-we-got-him-boston- bombing-suspect-captured-alive?lite. See, Moskowitz, e.g., Long 25. Eric Mara- After Blasts, Globe, Leg, Survivor thon Loses Boston 23. http://www.bostonglobe.com/ Nov. See, metro/2014/11/11/long-after-marathon- e.g., Blog: Bombings Live at the Bos- Marathon, bombings-survivor-loses-leg/urutULO H33 5K3 http://live.boston.com/Event/ ton jlOGoLiNI/story.html; Boston Marathon Live_blog_Explosion_in_Copley_Square? Later, Globe, (last 20, 2015); Bombings-One Year Boston Page=0 visited Feb. Boston http://www.bostonglobe.com/metro/specials/ Bombing Streaming Manhunt: Watch the Live Video, (last 2013), http://www. bostonmarathon-bombings-year-later vis- Inquisitir (Apr. 20, 2015) (detailing com/625705/boston-bombing- ited Feb. sto- inquisitr. numerous city's recovery manhunt-watch-the-livestreaming-video/ ries about and the victims marathon); ("Developments year and intense over the since the En- this active Bella Schweitzer, rapidly unfolding by glish by search min- minute & Sarah Some Affected being constructed across the street rently em- and sentiment were phenomenon This hung a “Boston campaign the courthouse has Strong” in the “Boston bodied “shorthand city,” Strong” became banner. “rallied a which defiance, solidarity, caring,” and has, quite that Boston There is no doubt in the face of a front “presented] unified strong attack laudably, emerged from this Indeed, go could not one threat.”26 [a] than it more united was before. er and bombing’s in the aft- in Boston anywhere However, events also show that Bos these car, seeing slogan ermath without recovered, yet fully ton has not bracelet, tattoo, t-shirt, or even mowed they were every resident —whether or not Fenway Park. into the outfield victim, day, knew a at the marathon that fundraisers, concerts, and rallies spurred or subject shelter-in-place to the or were website, city. A onefund- throughout the' deeply personally affected der 28—was pur- also formed “with the boston.org, was by tragedy. by most affected helping those pose deciding with wheth- We are now tasked bombings” tragic Boston Marathon tragic these events and er the effects of a forum to money providing raising unrelenting coverage media that fol- encouraging strength, stories of “gather[ ]. day and continues to this have af- lowed hope from survivors.” recovery, and constitutional to a fected Tsarnaev’s Strong” and the “Boston These stories fair, impartial, that is day, almost two campaign continue to this indifferent, so, and if whether we should ago, over four weeks as years later. Just power to intervene. apply our mandamus slammed with a massive bliz- Boston was leaving approximately zard two feet II. Discussion snow, himself to shovel upon a man took throughout country have man Courts line of the Marathon. This finish al- community appropriate, mandamus to be an by many in the found was referred to “snowmaritan,” rarely implemented, vehicle to chal- and led beit as a “hero” and a lenge change-of-venue a district court’s de- “# to the viral WhoShoveledTheFinish- See, Am., e.g., Volkswagen In re media.27 And as cision. hashtag Line” on social (5th Inc., 304, 308-09, Cir.2008); truck has 545 F.3d dump this ease has proceeded, (7th Balsimo, 185, 187 bearing a Matter 68 F.3d parked outside the courthouse Briscoe, Cir.1995); F.2d building cur- In re Strong” logo “Boston See, Chatter, Race, Won't, e.g., Bombing 27. Twitter UPDATE: Will Be at but Others 30, 2014, Globe, http://www. Boston Mar. Line Man Who Shoveled the Marathon Finish bostonglobe.com/metro/2014/03/29/marathon- Found, (Jan. 28, 2015), BDCwire Has Been victims-ponder-returning-marathon/SkxPdl http://www.bdcwire.com/who-shoveled-the- Jaclyn RkvCHZp5YDweJ64K/story.html; Reiss, marathon-finish-line/. Manhunt, Lingers Unease a Year After Globe, http://www. Boston Mar. Indeed, thought April even some bostonglobe.com/metro/regionals/wesl/2014/ order, day shelter-in-place “so was 03/09/watertown-residents-question-police- April day than much scarier” tactics-manhunt-for-bombing-suspects/V2c GreenBlatt, bombing Alan Boston itself. See AugxzqcNvlsP82pLZ2iystory.html. Scarier”, “Today Is So Much on Lockdown: 19, 2013), (Apr. http://www.npr.org/blogs/ Zimmer, Strong,” the Phrase 26. Ben “Boston thetwo-way/ Globe, May 2013/04/19/177934915/The- City, that Rallied a 2013, Boston Scene-In-Boston-Today-Is-So-Much-Scarier ://www.bostonglobe.com/ideas/ http resident). 2013/05/11/boston-strong-phrase-that-rallied- (quoting a city/uNPFaI8Mv4QxsWqpjXBOQO/story.html.

33 (D.C.Cir.1992); v. Mc proceeding 1429 United States must transfer the against the Cir.1976).29 (8th Manus, 460, 464 to if 535 F.2d defendant another district the court is cases, in that great prejudice against As all mandamus satisfied so the the following must before the defendant exists in the transferring establish “ (1) ‘right that to writ will issue: district that the defendant cannot obtain a indisputa is fair impartial issuance of the writ clear and there.” Fed. (2) 21(a). adequate “has no ble’ that he other R.Crim.P. relief; is, that show

source of he must Prejudice Presumption 1. A Exists (3) ”; ‘irreparable “on harm’ that bal Cannot Be Which Overcome ance, equities favor issuance the (1st Bulger, 42, writ.” In re 710 F.3d 45 determining “In prej- whether sufficient Cir.2013) Cheney v. Dist. (quoting U.S. require change venue, exist[s] udice to D.C., U.S. 124 Court 542 S.Ct. 1) inquiries: we must conduct two whether (2004) 2576, In 159 L.Ed.2d 459 re jury prejudice presumed given should be 54, (1st Vázquez-Botet, 464 F.3d 57 Cir. us; 2) before if prejudice facts or 2006), Tsarnaev the rare respectively). is be presumed, should not whether litigant require- all who has satisfied three actually prejudiced.” was United States ments. (1st v. 897 Angiulo, F.2d 1181 Cir. 1990). Here we dealing are with the first Change A. Tsarnaev Is Entitled to a inquiry. ways There are two which Venue First, prejudice presumed. can be “preju- III properly While Article presumed Constitution dice where provides that criminal trials held ‘prejudicial, inflammatory “shall be publicity about in the community State where said Crimes shall so saturated the [a] case Const, committed,” have U.S. art. which was [the defendant’s] drawn as Ill, § requirement it virtually impossible cl. is far from to render obtain ” requires impartial jury.’ absolute. The Sixth Amendment an (quoting United (1st McNeill, place “by the trial take 9 impartial States v. 728 F.2d Cir. 1984) (alterations jury of the and district original). State wherein in the committed,” crime publicity shall have been U.S. “must be and sen both extensive Const, added), Second, (emphasis amend. VI sational nature.” Id. it can also the Fifth when many jurors Amendment’s Due Process be shown “so admit to a Clause requires disqualifying prejudice fundamental fairness that the trial court Const, trials, may legitimately see U.S. amend. V. See also doubt the avowals of im Skilling, remaining jurors.” 561 S.Ct. made partiality 130 2896; v. 918 v. McVeigh, Rodríguez-Cardona, United States United States (W.D.Okla.1996). Cir.1991). (1st F.Supp. To F.2d When end, prejudice presumed, inquiry Rule 21 the Federal Rules of “no need be requires Criminal “court publicity Procedure that a made as to actual effect of the 21(b) change prejudiced 29. These cases involved either Rule of venue due implications jury, the Federal of Criminal or Rules Procedure where constitutional 1404(a). peti- fact, present magnified. government § While U.S.C. conceded at 21(a), hearing tion invokes Rule this distinction is aif n was established, provisions a re- irrelevant. All three involve and the district court still venue, quest ap- venue. If mandamus is then mandamus transfer refused relief propriate purposes, appropriate, assuming for convenience would be the other man- context, surely civil it must be available when damus factors satisfied. Brien, the actual trial. 373 very real sense” was v. United States jury.” petit on the Cir.1980) 1417, (1st 726, (citing 723, 10 L.Ed.2d 299, 83 S.Ct. 313 U.S. 617 F.2d Maxwell, 333, (1963) 352- (finding change 384 U.S. of venue was v. Sheppard (1966)). 16 L.Ed.2d twenty jail minute house 86 S.Ct. where a required taken, Tsar- route is which Regardless of aired on television “interview” was a of has established naev of days). people For the three consecutive prejudice. of the District of Eastern Division Massachusetts, community perva- “a so first, my there is little doubt to the As “[a]ny spectacle,” sively exposed to such publicity pretrial mind that the —which ... could be proceedings subsequent inflamma- pervasive, prejudicial, Id.; Ir- formality.” see also a hollow the Eastern Divi- but tory so saturated —has vin, 81 S.Ct. 1639 of Massachusetts 366 U.S. of the District sion that we must mur- day such venue where six persists (requiring change cannot obtain a fair and presume “extensively Tsarnaev covered news ders were above, explained here. As impartial trial locality, great excite- in the aroused media victimized, Boston30 was itself city area, in the indignation” ment and the coverage of the attacks releases, issuing] press “officials involved live on televi- ensuing manhunt was shown stating intensively publicized, which were I days. internet for four sion and the confessed”); Brien, had that the it in- people following expect most defen- (transferring F.2d at 313 one those in Boston and Wa- tently, especially and an- Springfield, dant to Massachusetts in their homes who were locked tertown fraud to Arizona in a mail and wire other spectacle do much else. The unable to everything lost case where most investors Tsarnaev taken out of seeing a bloodied activities of [the because the “sensational something a and arrested is not the boat corporation] precipitated exten- defendant juror in the Eastern Division potential press in the in New sive critical comment easily can the District of Massachusetts the Eastern seaboard” and England and aside; easily can forget put nor one on the publicity effect of that possible “the released forget subsequently Tsarnaev’s required trial” right to a fair defendants’ “confession,” claiming that all of alleged venue). true especially This is damage. collateral These the victims were here, majority pro- vast where the once may have been shown images, which jurors personal have connections spective nationwide, repeated- or twice were shown to the events. Supreme ly in Massachusetts.31 As conclusion under One reaches the same acknowledged in Rideau v. Louisi- Court route, analytical which involves the second ana, anyone who has ever watched “[f]or date. examining selection to television[,] the conclusion cannot be avoid- trial court must ‘length to which the “[T]he thou- spectacle, that this to the tens of ed it, appear who go in a in order to select people sands of who saw and heard (Dec. 2014), Boston, referring Story MassLive am not 30. When I refer to I city http://www.masslive.com/news/index.ssi72014/ of Boston but also to surrounding neighborhoods and suburbs 12/marathon_bombing_aftermath_was.html metropoli- greater up make Boston which ("The legal Marathon aftermath of the Boston jury pool is tan area and from which the dominated headlines in Massachusetts attacks being drawn. year the attack itself did last much as surely will in and the accused bomber’s Press, See, e.g., Associated Marathon 2015.”). Bombing Top Was Massachusetts Aftermath ” pre- can impartial’ “support against also innocent everyday people who prejudice.” Angiulo, 897 F.2d sumption are also citizens of USA. Not to men- Florida, 421 (quoting Murphy at 1181 v. taxpayers]]] tion $ $ $” 44 L.Ed.2d (cid:127) “He does deserve a trial.” (1975)). Here, the court sum- district (cid:127) “Caught redhanded should not waste 1,373 jurors them to required monsed the trial.” the on$ 101-question which questionnaire fill out (cid:127) “[T]hey shouldn’t waste the [sic] bulits among things: other their back- explored, poison; hang or them.” personal their to grounds; connections (cid:127) quit all know he’s guilty “[W]e so Boston, Marathon, bombings, the the wasting everybody’s time jury with a victims; their in- the views on Tsarnaev’s string him up.” nocence; and their the death views on (cid:127) told “People me the defendant is over- These penalty. prospective jurors were whelmingly guilty.” and, into six panels assuming divided (cid:127) commented on the fact that we “[M]ost were not struck they for cause based sole- skip go should the trial & to questionnaires, the ly subject were then sentencing guilt assumed b/c to individual voir dire the district crimes heinous that he’s accused parties. Wednesday, and the On Febru- of.” ary twenty-fourth day (cid:127)

selection, hard to “[It’s] understand how some- seventy-five jurors provi- one can defend a murderer.” sionally qualified.32 The reason this lengthy process is the (cid:127) pervasive “I opinion have formed the that a con- permeating throughout pool. get To victed terrorist should receive repre- sense the kinds of views that are penalty. They’re death enemy jury pool sentative both the country.” my community, I sample include below a mere (cid:127) “Yeah, I think I when first checked by' of the comments that have been made [box], know, you if guilty I felt jurors, prospective broken into three cate- box, after, guilty he I I was realized gories prospective jurors’ views on —the are, charges don’t know what all the so guilt, personal Tsarnaev’s their connec- I know that I guilty, can’t he’s because to bombings, exposure tions and their know what charges don’t about publicity the case: the evidence is what and all of that.

Prospective Jurors’ on Tsar- Views But I think there’s involvement.

naev’s Guilt coverage, There was so much media just

even the shootout in Watertown. I it on And I like watched TV. so feel (cid:127) could I possibly find defen- “[H]ow there, involvement I think there’s like guilty dant with all the news infor- anybody would think that.” I accepting mation. have trouble him it’s— (cid:127) getting housing living juror’s knowledge pic- & assistance The of graphic MA, tures, from the state of “especially boy,” education with- the little would juror’s paying, taking ability out the oath of citizen- be- affect the to serve ship juror committing and then crimes a son.” “ha[s] cause the case, court, however, penalty qualified. 32. Because this is a death each to be district party twenty-three peremp- has been allotted qualify necessary opted more than the Thus, challenges. tory ju- twelve to seat the sixty-four be safe.” “to alternates, sixty-four rors six need (cid:127) my ability to be fair (cid:127) “It does [affect in a sense that truly believe “I Strong The Boston easy impartial]. could be the penalty] death [the me represents ... bumper sticker He could the defendant. way out for city together came why way I that’s that. So want [sic] unity just helped, show[s] part, far as this next But as that. said ” thought Boston.... time I said—I at the again, question- I since did it a lot about (cid:127) that ran and many people know “We know if I would be able I don’t naire. day marathon that so it watched the think, I no guilty. say he’s not always being discussed.” was matter what, guilty, he’s no matter (cid:127) day.” people running “I knew penalty, as the death As far what. (cid:127) anyone near the Boston area “I feel wouldn’t have an is- I still—I though, effected this event.” [sic] was know, sue, agreeing to death you (cid:127) horrified, children were and even “My but, easy-way- it’s the yeah, penalty, things were under thought we when sure, that’s the thing. I’m not out control, into lock-down. we went me.” thing main fear, anger, a horrible week of was (cid:127) public I think a execu- this case “[F]or through.” that we lived confusion appropriate, preferably tion would be (cid:127) juror put could not prospective One mara- by at the finish line of the bomb guilty a belief that Tsarnaev was aside thon.” at the a close friend who was because (cid:127) juror’s prospective the cowork- When had to un- finish line has Marathon’s might picked for this ers heard she “multiple surgeries” leg to her dergo “ (cid:127) said, trial, basically ‘Fry him.’ “[t]hey one of the shrapnel from due (cid:127) bombs. “I haven’t heard both sides of the sto- side, supposed I’m

ry, but on the other Prospective Exposure to Pub- Jurors’ first guilty to hear the not side louder licity About the Case guess I I guilty than the side. So assumption going

should be with (cid:127) “Well, paper every day, I the read I’m not.” guilty, of not but every day. I the news two hours watch Prospective Jurors’ Personal Connec- year, past the course of the So over Bombings

tions to the obviously seen and read and heard I’ve

quite bit.” (cid:127) and I watched the (cid:127) “My husband I want to' know [sic] [what “You don’t [live], including lockdown events on TV my thought when I received sum- very capture upsetting, was I that work have close friends mons]! —it you feel not safe in traumatizing, made emergency room at MA General! ” yard.’ your own ‘back really thought? give you IWhat We home, money eduat (cid:127) & this is how [sic] every- saying “It’s kind of like erase I’m you pay sorry us back? I’m all for your head from thing you have my on penity the death [sic] I I don’t know that would something. this — nightmare [sic] friends still have every- my memory to erase be able seen, ” read, day! that I’ve and heard.” that thing (cid:127) (cid:127) you could by “Absolutely. [have How “I think we all were effected [sic] (Martin) during the week of the followed events boy of that little the death bombing].” from Dorchester.” (cid:127) seeing footage comments, “I some raw After reading remember these it is clear I’ll day forget. which never me that the is not pool composed of

Yeah, unbiased, going lot there was a indifferent individuals.33 This day, really deeply.” struck me should surprise come as no attitudes —the (cid:127) jury pool, “Well, mean, by as evidenced state- seeing seeing I excerpted above, ments like those publicly

all the that was avail- reflect evidence able, know, altogether understandable and you having all human reaction that, neighbors casualty traumatized during that occurred horrific upon violence inflicted yes, I them and guilty, feel that he is and I think be, community. Indeed, their entire know, punishment you no should small part very terms, death, and in real because I think personally jury pool members were this is feel themselves something that —I takes a victims 9/11, greater you know, perpetrators’ chilling act of weight as terror. that fact many Acknowledging where no there were so lives affect- ed, know, with, know, means an you you pool indictment legs or whatnot, know, people Boston, who have shown you they live such ev- courage and ery trage- resilience the face of single day now....” dy and terror. (cid:127) we While thus under- “I think there’s a lot concern [of about empathize stand and with prospective arrangement], media there were jurors’ reaction, empathy such and under- questions and there’s lot of conversa- standing cannot jury pool convert biased tion, if you potential juror, constitutionally into a impartial jury of you’d media, avoiding need to be Rather, peers. duty Tsarnaev’s our as center, and it’s so front and it’s diffi- honest arbiters us to requires uphold the And, know, just cult. you even driving Constitution and ensure that those car, on, and, the the news comes strong feelings by greater shared Bos- know, heard, you you know, you I’ve ton community deny do Tsarnaev it, try to you switch but hear ” particular to a fair trial. If the facts things.... together circumstances of this (cid:127) “In feelings terms of on guilt, I case— with emotionally charged comments think just that comes the initial — excerpted of the jury pool above—do not things in the when news the event prejudice, establish a it is happened seeing all that. So hard to fathom what would. that’s perspec- kind of formed that tive.” only highlighted This (cid:127) fair, “Actually, magnified I think I could be I surroundings but in which

do image my have this mind that I occurring. day, selection is Each deny, can’t perfectly jurors to be honest.... when to the John report Joseph image Courthouse, The of him putting Moakley they the back- United States pack boy.” behind that little cannot help overwhelming but observe Tsarnaev, me, majority ty-five provisionally qualified jurors, forty-two 33. The accuses choosing quotations” having “selective which are self-identified as some connection to ante, events, "misleading,” places people, at 28. It also that its father. Where one’s fellows is often extraordinarily because Tsarnaev must be times, preju- many, many so so admitted result, prospective jurors a dangerous. As dice, impartiality such a statement of message are inundated with the Tsar- given weight. can little As one of the be requires the full force naev is a threat who it, forget you can’t what jurors put “You Military security and civilian of the U.S. hear and see.”34 response. in I do not fault the apparatus The Dis- at 81 S.Ct. 1639. 366 U.S. many security personnel doing for their of trict for the Western District Court I duty; superiors nor do fault their point made a similar Oklahoma security taking precautions regarding the McVeigh: Still, by I am how of the court. troubled ... is difficult conspicuous prejudice such a show of force outside The existence of may go unrecog- it proceed- prove. influence the to Indeed Courthouse by it. it, jury in those who are affected ings especially pool within to a nized may deny a fair trial by prejudice already deeply so events. affected Indeed, unforget already precisely prospec- can’t what I know.” 34. that is what one juror during dire: "I tive in this case said voir

39 discriminatory ception guilt not to a of is limited bias from deliberations. impairment It an of The opinion attitude. includes influence that lurks once process of deductive persistent deliberative formed is so that it unconscious- evidentiary reasoning ly from facts result- fights detachment the mental pro- ing something (internal from an attribution to average cesses of the man.” cita- omitted)). included in the evidence. tions We echoed that F.Supp. 918 sen- in my There is no mind doubt that the in Angiulo: timent surrounding circumstances this case— high percentage Where a of the venire which, emphasized enough, cannot be prejudice, admits to a disqualifying penalty death case—create presump- question may properly remain- tion of prejudice. I have seen nothing in jurors’ of ing impartiality, avowals either the questionnaires or the voir dire presume prejudice. choose to Indeed, to suggest govern- otherwise. Indeed, 897 F.2d at in compara- 1181-82. ment is point single unable to to a instance pervasive ble cases of such severe criminal 463 cases heard prejudice, Supreme Court found that (188 in this Circuit which were in the particu- there was no need “to examine a Massachusetts) District of past five transcript larized of the voir dire examina- years where statements made during jury Rideau, tion jury.” of the members of the selection came to approximating even close 1417; 373 U.S. at United cf. the quite bias, understandable level of Morales, States v. Moreno F.2d hate, disgust, outrage manifested by (1st Cir.1987) (finding no presumption many jurors so prospective here. prejudice twenty-five percent where reasons, For all these the district court’s believing venire admitted that the de- deny decision to thrice Tsarnaev’s motion guilty). fendants were for a is a clear venue abuse of Finally, possible even if it to over- discretion.

come truly impartial jurors, find and unbiased Comparable 2. This Case Is certainly these would not be “indif- Rideau, McVeigh, and Irvin ferent,” every prospective juror as almost extremely disappointing has some connection the events. See that both Irvin, (“The- 81 S.Ct. 1639 the district the majority court and fail to appreciate crimi- guarantees the similarities to United States (W.D.Okla. nally F.Supp. a fair trial v. panel McVeigh, accused 1996), impartial, jurors.”). ‘indifferent’ Nor and the other cases cited Tsar- they would representative McVeigh of either the naev. concerned the trial of pool the those community responsible City as whole or at- for the Oklahoma (“Here large. at bombing people, injured See id. S.Ct. 1639 which killed 168 ‘pattern more, the deep prejudice’ completely destroyed and bitter hundreds to Alfred P. present’throughout Building, shown be the com- Murrah Federal Office in munity clearly damaged many buildings, was reflected the sum and other includ- ing total of the voir dire examination of a the federal courthouse. Id. at 1469. majority finally placed McVeigh, parties agreed in that venue opinion City box.... had to be of Oklahoma per- With such moved outside minds, explosion meating their it would be difficult because effects on “[t]he say profound to that and precon- community per- that each could exclude this are so shook the entire explosion of how the dispute ports was 1470. The Id. at vasive.”35 state, pulled to- ha[d] in how the state keep the trial Okla- and over whether Tulsa, Third, it to pos- or to move homa, response.” “[t]he in Id. specifically gether 1470,1474. pub- impact type at of this prejudicial Denver. Id. sible by measurable something licity [wa]s is so “that there concluded The court at 1473. objective standards.” Id. these two defen- against great they Oklahoma dants the State of identical considerations are These impartial trial at fair and obtain a cannot case.36 As described present those in the holding court by law any place fixed above, cover- ongoing Massachusetts added). (emphasis at that state.” Id. in-depth significantly more age has been relied on the district court Specifically, coverage than the national personal and First, initially while following factors. has, sporadic part, for the most which na- “extremely comprehensive” there was Moreover, like the “Okla- general. coverage, passed, time “[a]s media tional Strong” has Family” slogan, “Boston homa in both the volume developed differences used) (and continues to be taken hold coverage media Okla- focus of the And, as the throughout Massachusetts.37 coverage out- local compared homa with juror reports, questionnaires, media national news and with side of Oklahoma clear, strong preju- there is voir dire make national Id. at 1470-71. While coverage.” full jurors, amongst prospective dice dwindled, contin- coverage local coverage impossible of which is almost extent explosion after the ued for months gauge. coverage “of personal” on “more focused men- Four other eases are also worth “indi- and their families” and of the victims Louisiana, 373 tioning. In Rideau v. grief recovery.” stories of vidual (1963), 1417, 10 L.Ed.2d 663 83 S.Ct. Second, [were] 1471. “Oklahomans charged was arrested and the defendant unique family spirit with united as robbery, kidnapping, and mur- Indeed, with family’ bank the ‘Oklahoma the state. Following der. Id. at theme in the Okla- been a common ha[d] arrest, was “interviewed” numerous re- he coverage, media with homa McVeigh to as a govern- while is often referred argument advanced 35. The grounds "home-grown” Given that distin- distinguishing McVeigh terrorist. on ment na- guishing the two cases on the basis of had to be moved because of the that the trial likely constitutionally disingenuous. origin damage A tional would to the courthouse is impermissible, presume we must simple reading opinion makes clear relying damaged, government and district court are that while the courthouse was other, However, change. some unnamed distinction. reason for the venue was not the Moreover, present persua- McVeigh they failed to another is dif- have the contention sive, agreed between the two parties material distinction because in that case the ferent cases, City and I can find none. occur in Oklahoma the trial should not only supports argument that trial in Bos- majority's that the Boston 37.The contention inappropriate. With almost identical ton is Strong is irrelevant because it "is theme facts, government and the district recovery” and "is about civic resilience acknowledged judge McVeigh on their own guilty whether or not” not about City would be accord that a trial in Oklahoma juror prospective "could not be or whether a unconstitutionally fundamentally and unfair. ante, impartial,” n. fair and very prospective fact that a only the two struthious. 36. The real difference between Tsarnaev, juror express "resilience” and "re- though needs to a naturalized cases is citizen, covery” eloquent that he or she is evidence foreign-born and have been is by the events. organizations was affected by overseas terrorist influenced

41 Dowd, Similarly, country allegedly admitted Irvin v. sheriff 366 U.S. days, the 717, Id. For three consecutive guilt. 1639, (1961), 81 S.Ct. 6 L.Ed.2d 751 was recording of this “interview” broad- was-charged defendant with murdering by and was seen cast on television Evansville, six individuals near Indiana in (or 97,000 approximately people estimated 719, a four-month span. Id. at 81 S.Ct. Parish). Id. In re- 65% of Calcasieu arrest, Shortly 1639. after his “officials conviction, versing the defendant’s the Su- releases, press issued which were inten preme explained Court sively publicized, stating that the petition process due of law to it was denial of er had confessed to the six murders.”39 venue, request for a of refuse at Id. 81 S.Ct. In requiring people after the of Calcasieu Parish had venue, a change of Supreme Court depth and in exposed repeatedly been noted that the “build-up of is personally of Rideau con- spectacle 725, clear and convincing.” Id. at 81 S.Ct. fessing anyone in detail.... For who pointed 1639. It to the “then current com watched television the conclu- has ever munity pattern thought” and the “curb specta- cannot avoided that this sion opinions, stone not to petitioner’s as cle, people to the tens of thousands of guilt punishment but even as to what he it, very and heard in a real who saw receive,” should which were solicited and sense was Rideau’s trial. broadcast over local stations. Id. The 726, 1417. The repeatedly 88 S.Ct. by Mayor tweets Menino and the Boston image being broadcast of Tsarnaev taken Police Department, opinions expressed boat, from a from a covered blood fire- media, surveys in the local of Massa with which fight police image was —an chusetts residents as to their views on the likely nearly quite seen 100% of the case, jurors’ prospective comments Eastern Division of the District of Massa- (some above) of which are detailed are just population38 damaging chusetts as —is analogous prejudicial to the same kind of spectacle, particularly a “confession” and impermissible actions found to be when paired incriminating when with the they occurred in Evansville in connection incendiary allegedly statements written him in the boat. with Irvin.40 information, Irvin, majority ing prejudicial 38. The contends that this a "re- 366 725, 1639, "completely markable statement” which is U.S. at whereas the sub- " unfounded,” ante, 24, scription newspapers n. 10. But ‘com- rates for local mon sense should not be left at the court- Eastern Division of District of Massachu- ” significantly today’s door.’ v. are house District Columbia Greater setts lower. me- Trade, environment, physical newspa- Bd. Wash. 506 U.S. 135 n. dia-saturated (1992) (Ste- pers obviously S.Ct. 121 L.Ed.2d not 113 513 the sole source of news vens, J., Instead, dissenting) (quoting people v. Nat’l and information. receive Schultz Hispanic variety Coal. Mental Health & Human their information from a wide (D.D.C. broadcasts, Orgs., F.Supp. newspapers, Servs. local news sources — Indeed, television, 1988)). potential jurors twenty-four-hour who cable the Inter- 94% net, Indeed, questionnaire they many people had etc. access the filled out stated online, exposed newspaper many which in obvi- to "moderate” or "a lot” of cases publicity. suggest exposure subscription. did the need for a To ates image of Tsarnaev include the bloodied 40.Contrary majority’s implications, to the re- belies common sense. Supreme cent Court caselaw has not cast emphasis majority majority places 39. The too doubt on Irvin. The main case the much on, Yount, dwellings v. 467 U.S. fact that Gibson relies Patton "95% (1984), readily County” newspapers carry- L.Ed.2d received the local S.Ct. Comparable Finally, challenges venue were raised 3. This Case Is Not to Skilling Boyd trials of both Lee the state court Malvo and John Allen Muhammad —better government, court, district and ma Beltway Snipers who terror- known as however, jority, all disagree equate Maryland, Washington, Virginia, ized this case to Skilling, United States v. Though the procedural D.C. late 2002. 177 L.Ed.2d 619 (2010). comparison inapposite. This postures coverage media are not iden- just described, Skilling Unlike the cases case, telling it is present tical to the murder, involved neither terrorism nor their were moved over 200 miles trials it certainly did not involve the death away from the site of the attacks to ensure Instead, penalty. Skilling involved the tri too, they, receive fair trials.41 would al of one of the former CEOs of Enron— cases, involving In all of these each one of the leading energy compa world’s penalty involving death and three similar nies at the collapsed time—which and fell terrorism,42 change acts of of venue was into bankruptcy 2001 amid fraud. Id. at abundantly appropriate. ap- is likewise 368, 130 S.Ct. 2896. facts of the “[T]he propriate here. The district court’s failure case were ‘neither heinous nor sensation ” 369, 130 to transfer is clear abuse of discretion. al.’ Id. at S.Ct. 2896. distinguishable ("Citing pretrial on its facts. Yount involved publicity concerns publicity surrounding impossible a retrial which was would impar- make it to select an "greatly "lapse jury, Virginia judge diminished" due to the tial Wednesday ordered Washington-area time” between the events and the second sniper tri- serial murder tri- 1032, 1033, Boyd al. Id. at 104 S.Ct. 2885. More- al of Lee Malvo moved 200 miles south over, suburbs.”). “community capital had sentiment soft- publicity ened” from the "extensive adverse community's outrage sense of [which] majority involving 42. The cites to cases height prior were at their to Yount's first trial bombing suggest 1993 World Trade Center to Supreme in 1966.” Id. That the Court ruled high-profile terrorism cases can be tried subsequent that the facts in a case did not in the district where the crime occurred. See change cry warrant a of venue is a far Yousef, United v. States No. S12 93 Cr. suggesting longer good that Irvin is no law. 180(KTD), (S.D.N.Y. 1997 WL at *3 overruled, explicitly Irvin has not been either 18, 1997); Salameh, July United States v. No. had, implicitly. quite or If it it would be odd 0180(KTD), S5 93 Cr. 1993 WL at *1 Sotomayor rely heavily for Justice on it so (S.D.N.Y. 15, 1993). However, Sept. unlike Thus, Skilling pro- in her dissent. Irvin here, still there is no evidence that the amount of on-point precedent. vides valuable and stories, press, pretrial the-personal impact day-to-day focus on the events was See, Vries, e.g., Lloyd Sniper City 2nd Trial Ven- different in New York than it was nation- 24, 2003), here, Changed, (July http:// ue CBS News wide. Unlike the Second Circuit noted www.cbsnews.com/news/2nd-sniper-trial- "press coverage substantially had subsided ("The venue-changed/ trial, sniper suspect trial of brought the time Yousef was John Allen Muhammad will publicity be moved 200 there was minimal in the months County Virginia miles from Prince William immediately preceding his trial.” United Beach, judge (2d Wednesday. Yousef, ruled Circuit States v. 327 F.3d Cir. Judge 2003). note, LeRoy clearly Millette said it City signifi- 'has been Also of New York Boston; shown cantly larger that such a of venue is neces- and more diverse than sary impartial jury.”); very to ensure a fair and places comparable few to New York Braun, Stephen Judge Changes Sniper City. Comparing Trial New York to Boston is like Venue, Times, bean, July http://articles. L.A. comparing apple to a rather than Iatimes.com/2003/jul/03/nation/na-sniper3 apples apples. questionnaire exposed had on numerous counts to “mod- being After indicted fraud, fraud, “a lot” publicity. Independent insider erate” or of -wire securities of report findings.43 to news articles similar making representations false trading, Skilling, it auditors, conspiracy possible to commit fraud— Unlike where was charges know about the Enron scandal without was convicted of some of which he Skilling appealed, knowing Skilling personally was in- acquitted of others— volved, have been Marathon that his trial should Tsarnaev Boston arguing same; bombings Houston. Id. at are one and the it is moved outside of impossible to be Supreme Court re- aware one and not the 130 S.Ct. 2896. to a number of other. jected argument due

factors, readily all of which are distin- Second, Skilling examined the Court here. guishable pretrial publicity emphasized that “al-

First, though that Houston is “the news stories explained Skilling it about were kind, they populous city fourth most the Nation.” not contained no confession or 382, blatantly prejudicial at 2896. Boston is not other information of Id. 130 S.Ct. twenty. or top type even See U.S. Census readers viewers could not rea- Bureau, sonably expected sight.” Annual Estimates the Resident to shut from 50,- 382, Incorporated Places Id. at 130 S.Ct. Population 2896. added More, by July “[p]retrial publicity Skilling 000 or Ranked 2018 the about was July prejudicial” less memorable Population: April May http://factfinder.census.gov/ smoking- there was evidence of the “[n]o faces/tableservices/jsf/pages/productview. gun variety prejudgment invited [which] Moreover, Skilling culpability.” xhtml?src=bkmk. his 130 S.Ct. 2896. contrast, Here, survey potential noted that in a in the midst of the Court manhunt, jurors by Skilling, “only surveillance commissioned media showed mo- [Skilling] backpack 12.3% of Houstonians named video of Tsarnaev with bombing, plastered to list Enron executives ments before the Tsar- when asked they crimes”; photograph everywhere imaginable, guilty believed “two-thirds of naev’s being live the scene of him respondents say single negative failed to and broadcast blood, boat, in a covered in Skilling; word” about and “43% either had found hidden Skilling subsequent arrest. Further re- never heard of or stated noth- months ing they ports came to mind when heard his over the next few weeks and boat, n. note inside the name.” 561 U.S. revealed his written Here, contrast, by many as a “confes- 2896. Tsarnaev notes which was described jurors weeks potential ago, that 94% of who filled out sion.” And less than five See, Justice, Personal, ("Given dzhokhar_tsarnaev_trial_judges.html e.g., 43. In Matters It’s Globe, 6, 2015, https://www. publicity surrounding the Boston Feb. the enormous bom- nearly impossible bostonglobe.com/opinion/2015/02/05/matters- bings, would be to find case.”). HXYIwyRx22 who are unfamiliar with the justice-personal/1 d4Pvtxh2 OS J/ survey story.html (noting SocialSphere that a See, found that Bombings Suspect of 1000 Massachusetts residents e.g., Boston Dzhok- in, probably thought guilty or Tsarnaev was He 90% har Tsarnaev Note in Boat Hid Left 16, 2013), Schoenberg, guilty); Say, (May Tsarnaev Shira News Sources CBS Dzhokhar Judge, Lawyers Through http://www.cbsnews.com/news/boston- Trial: Potential Sift Bombing, bombings-suspect-dzhokhar-tsarnaev-left- Jurors’ Ties to Boston Marathon ("B (Jan. 2015), note-in-boat-he-hid-in-sources-say/ http://www. oston MassLive bombing suspect left a Dzhokhar Tsarnaev masslive.com/news/boston/index.ssf/2015/01/ began, “jurors’ the me- cause the links Enron morning selection that Tsarnaev offered to reported

dia either nonexistent or attenuated.” S'kill exchange govern- 384,130 for the plead guilty ing, 561 U.S. at S.Ct. 2896. While removing penalty the death but that ment many people in Houston had links to En Thus, rejected the offer.45 government sector, energy many ron also had no blatantly here there is Skilling, unlike in Skilling, connection. See United States v. fact prejudicial pretrial publicity. This di- (5th 529, Cir.2009), 554 F.3d 560 n. 47 aff'd rectly against government’s argu- cuts 358, part, part, vacated in 561 U.S. reports ment that there “have been no of a (“Skill 2896, (2010) S.Ct. 177 L.Ed.2d 619 plead history, guilty, criminal offer to ing opinion offered polls suggesting that crimes, of a confession to other or of dam- one in three Houston ‘personally citizens aging last-minute admissions.” knfejw’ hap someone harmed what Enron.”). Third, pened at This Skilling explained Court situation is differ ent. years elapsed “over four between Enron’s is true that a number of Eastern Skilling’s trial” and that bankruptcy Division of the District Massachusetts “the decibel level of media attention Marathon, dimin- residents were not at the did years in the En- following ished somewhat Marathon, anyone not know at the or were collapse.” ron’s 130 S.Ct. 2896. personally subject to the shelter-in- above, it explained As has been less than Still, place they order. were nevertheless years bombing, two since the Marathon affected city because the entire of Boston the level of media attention has while was the victim bombings.47 intended somewhat, extremely diminished it is still point That is the whole of terrorism —not strong prevalent, especially in Massa- just injure kill people, or a few innocent chusetts.46 The emotional of these salience but to make everyone scared and make ongoing reports cannot be overstated. everyone believe it could have been them

Fourth, rejected they the Court could next. Skilling’s ar- To further the gument that point, just the “sheer it took day qualify thirty- number of victims” one triggered a presumption prejudice eight prospective jurors be- in Skilling. Skill- claiming responsibility April year....”); note for the Timeline: Tsarnaev in Dzhokhar Marathon____"). Globe, Globe, attack on the Boston http:// Boston Dec. www.bostonglobe.com/2014/12/24/timeline- See, Pérez, e.g., 45. Bombing Evan Boston Trial dzhokhar-tsarnaev-globe/16 Q JTbj 8ql5 dKh Deal, Lawyers (Jan. Fail to Reach Plea CNN MuVFJ/story.html (collecting every NGv Bos- 2015), http://edition.cnn.com/2015/ 01/05/poli- Tsarnaev). story ton Globe news related to tics/dzhokhar-tsarnaev-trial-plea-deal-fails/in- 47.See, Aleccia, e.g., Jonel Boston Bomb Attack ("The dex.html discussions in recent months Kids, Finds, Triggered Study PTSD in Local possibility have centered of Tsarnaev 30, 2014), (May http://www.nbcnews. NBC pleading guilty receiving a life sentence com/health/health-news/boston-bomb-attack- parole.... without [b]ut the talks have triggered-ptsd-local-kids-study-finds-nl impasse reached an because Justice De- [PTSD], (noting that "in addition to research- partment removing has resisted the death range disturbing ers detected a of other emo- penalty...."). responses tional and behavioral in kids who See, Press, e.g., 46. The Associated impact Marathon felt of the manhunt close to home,” Bombing Top "[e]veryone Was Massachusetts and that in Boston has a Aftermath (Dec. 26, Story 2014), story MassLive they during of what did the shelter-in- http://www.masslive.com/news/index.ssl/2014/ GreenBlatt, place request”); Alan Boston on Scarier”, 12/marathon_bombing_aftermath_was.html “Today Lockdown: Is So Much NPR ("The legal (Apr. aftermath of the Boston http://www.npr.org/blogs/ Marathon attacks dominated thetwo-way/2013/04/19/177934915/The- headlines in Massachusetts much Scene-In-Boston-Today-Is-So-Much-Scarier. as the attack itself did last Here, Here, 374,130 4. If Not When? 561 U.S. at S.Ct. ing, forty-one. days qualify eleven it took required If a of venue is not in a this, imagine case like I cannot a case agreed with Finally, Supreme Court city where would be. The entire “well-publi- Skilling co-conspirator’s that a victimized, Boston has been terrorized and shortly guilty be- plead cized decision to deep-seated prejudice against those danger juror preju- fore trial created daily If responsible permeates life. resi- dice,” was but found that dents of the Eastern Division of the Dis- granting due to the district court lessened already trict of Massachusetts did not re- addressing the issue a continuance predetermine guilt, sent Tsarnaev and Id. at during voir dire. the constant on the reporting Marathon omitted). (internal marks quotations bombing and its aftermath could fur- could not be again, the situation Once jurors ther prospective convince the of his jury midst of more different here. the guilt. Adding penalty the death element selection, have oc- three relevant events circumstances, makings to these and the shooting curred: the Charlie Hebdo presumption for a of abound. If Paris,48 manhunt in the Finish Line “Snow- here, a does not exist when maritan,”49 Khairul- guilty plea and the big it? must a attack would How terrorist friend of Tsarnaev who lozhon Matanov—a widespread be? numerous and must How destroying evidence related is accused body impact per- count and be? How investigation.50 Skilling, to this Unlike coverage and detailed must the be vasive delay district court has refused to presume before a federal court must day,51 even a and a review proceedings of prejudice? existence reveals questionnaires voir dire By grant change of venue topics refusing that whether these have had well-known, of the most prejudicial jury affect on the has not been this case—one well-publicized, emotionally-resonant deeply probed.52 Valencia, See, Johnson, See, e.g., e.g., 50. Milton J. Tsarnaev 48. Kevin Paris and Boston Parallels, Globe, Striking Today, Guilty, Attacks USA Pose Jan. Friend to Plead Boston 9, 2015, http://www.usatoday.com/story/ Jan. http://www.bostonglobe.com/metro/ news/nation/2015/01/08/paris-boston-attacks/ 2015/01/13/judge-sets-jan-plea-hearing-for- (commenting no that “there was 21445461/ escaping friend-boston-marathon-bombers/SPbRARYlk striking similarities between the YS5XYJMrZNFcM/story.html. popular of a satiri- assault on the Paris offices newspaper cal and the 2013 Boston Marathon See, Press, Judge e.g., Re- 51. The Associated bombings” quoting Repre- Massachusetts jects Delay Paris Bid to Tsarnaev Trial over stating Keating sentative William as Attacks, Herald, 14, 2015, http:// Boston Jan. ..., “[ajgainst backdrop jury selection www.bostonherald.com/news_opinion/local_ reliving happened like Boston is what all it’s coverage/2015/0 l/judge_rej ects_bid_to_delay_ happen- again.... watching over I’m what's tsarnaev_triaLover_paris_attacks. Paris, thinking ing of Water- and I’m town.”). hearing, explained that all 52. At the Tsarnaev Silverstein, See, e.g., Meg Wagner & Jason question- after the of these events occurred Clears Snow Boston Bartender Chris Laudani out, filled and while the district naires were line as Massa- Boston Marathon Finish from generally prospective court has asked Cleanup, Daily Begins N.Y. chusetts News, Blizzard events, they were aware of these it whether http://www.nydailynews. Jan. in-depth questioning into how has cut off com/news/national/boston-beginsblizzard- pro- knowledge is or how it has affected cleanupclears-marathon-finish-line-article- juror. spective 1.2094673. trial; go attacks ever to to trial —both events of the it terrorist first would be ex- majority court and the district posed testimony given by to the the vic- there could never suggesting be tims, witnesses, experts; and the case which mandates a of venue. it exposed would be to all the evidence stand, If their decisions are allowed to we presented by government. only Not 21(a) might as well erase Rule from the evidence, exposed would it be to this Procedure, Federal Rules Criminal would exposed commentary be to outside process principles some of the due But, on the evidence perhaps as well. Amendment, “impartial Fifth harmfully, subsequent jury most could jury” phrase from the Sixth Amendment.53 expected to know that the new trial was post-conviction result of a reversal. Irrepa- B. A Failure to Act Cause Will Thus, jury the new would know that Tsar- Harm rable already naev had been convicted a prior requirement The second for a writ of jury, with guilt already proven once mandamus to issue is that a defendant beyond a reasonable doubt. The necessary prevent must show “relief is might likely conclude that the retrial irreparable harm.” In re Justices perceived due to a “technicality,” and P.R., Supreme Court 695 F.2d result, any pretrial prejudice as may be (1st Cir.1982). requirement This has been stronger is, even at a retrial. While this satisfied as well. here Should the course, a concern in situation where a fail process selection to select a fair and conviction is appeal, very few, reversed on impartial jury, “widespread public any, if press cases have the coverage and in a magnitude comment” case of this widespread dissemination of information would difficulty additional in be- “creat[e] Thus, present here. contrary to ginning again place at another for trial.” majority’s position, the fact that Tsar- McVeigh, F.Supp. Any subse- naev, convicted, should he be quent jury will be able exposed would be to even more prejudicial to raise publicity arguments about the in an appeal case. For does example: it exposed would be daily not defeat the irreparable harm prong.54 option, parties 53. Another which none of the bombing between the jury and the start of suggested, selection, have would be to select coverage pa- media has waned and jurisdiction bring another and then them to comparison coverage. les in to local None- the District of Massachusetts for the trial. theless, given experience the American with rare, Though practice very is it is not high-profile past criminal trials over the few Moore, unheard of. See Commonwealth v. decades, every expect there is reason to *3, Docket No. Crim. No. (including the national news media 24-hour 5, 2012) (Mass.Sup.Ct. (ordering Oct. channels, radio, print newspapers, cable so- "partial change whereby in venue” the trial media, sources) ramp up cial and internet will would County be held in Suffolk but the engage with Tsarnaev’s trial and in the relent- would be County "draw[n] from a Worcester less, detailed, highly omnipresent coverage venire”). that characterized criminal trials such as Simpson, Casey those of OJ. Anthony, the majority 54. The misunderstands the nature of Brothers, Dahmer, Jeffrey Menéndez Phil coverage high-profile modern media of crimi- See, Spector, Bundy. e.g., Casey and Ted trials, An- nal prior and the distinction between thony Murder Trial Gamers Extensive Media coverage in Boston versus the rest of the Coverage: Coverage Cable and Broadcast TV country. bombing, Since the Marathon me- Comparison Draws coverage dia to the Trials story OJ. has never ceased in Boston, Brothers, Simpson story present where remains L.A. Menúdez Times, 6, 2011, public's July at the fore http://articles.latimes. interest. On the however, stage, national two-year gap in the l/jul/06/entertainment/la-et-casey- com/201 cases, majority applied toughest fails in the consideration where the Another allegedly despicable harm that most consider is the defendants adequately are on judicial the docket. The actions taken system to the as a will be done Inc., the district court cast doubt on the tenets Cargill, In In re 66 F.3d 1256 whole. based, system which entire (1995), our is and it involving peti- a mandamus case necessary is for us to act. recusal, thus judge’s we held that tion for a re- “[pjublic confidence the courts There public is serious doubt quire question disposed that such a be sphere that Tsarnaev can receive a fair possible opportunity.” at the earliest the District of Massachusetts. Ma- Though the issue here is at 1262. jor papers throughout the world pub- have recusal, venue and not the concern over suggesting lished articles the trial just as vital. “public confidence” should moved outside of Boston.55 For just Tsarnaev that is on trial as a 1,000 example, survey Massachusetts us, result of the issues before but also the only residents showed that 47% of those judicial system. integrity of our federal polled were confident that Tsarnaev would to see how watching The entire world is receive a fair trial.56 While 8% were (2% values of “innocent until confident, the American not at all the other 43% for) proven guilty” and “the to a fair respondents were unaccounted proudly proclaim varying trial” —values we had levels of doubt as to whether —are Venue, Globe, anthony-trial-sidebar-20110706 (noting, https:// Boston Feb. among things, www.bostonglobe.com/metro/2015/02/06/ "[m]ore other than 600 press passes were doled out for media cover- tsarnaev-trial-should-moved-another-venue/5 ("Most major age, every HovPmXyldTyvlXhV5VzSI/story.html broadcast network has trial”); reporter potential jurors guilty. had at least one at the see don’t Tsarnaev is think Shire, Cevallos, Emily They guilty.”); Danny also From O.J. to ‘Serial’: We’re know he’s Tsarnaev, Now, Hernandez, Daily All Armchair Jurors Beast Can Holmes Fair Get (Jan. 2015), Trials?, (Jan. 29, 2015), http://www.thedailybeast. http://www.cnn. CNN com/articles/2015/01/23/from-o-jtoserial-we- com/2015/01/28/opinion/cevallos-major-trials- Hoffmeister, ("It’s re-all-armchair-jurors-now.html pretrial-publicity/; The Thaddeus n anniversary Judge Try 20th start of O.J. Should Rethink His Decision to trial, Boston, Times, 7, 2015, Simpson's a media event which led to Tsarnaev in N.Y. Jan. explosion legal http://www.nytimes.com/roomfordebate/2015/ an of courtroom TV and loud ("The 01/07/when-a-local-jury-wont-do/the-judge- experts....”); id. 24—hour cable news should-rethink-his-decision-to-try-tsarnaev-in- network meant the murder trial was boston; Lind, Judge's celebrity-making transformed into machine. Richard Decision Precedent, team, Simpson, prosecutors, Case a Bad N.Y. his defense Tsarnaev Sets Times, 7, 2015, http://www.nytimes.com/ judge, legal analysts all Jan. and cable became gripping roomfordebate/2015/01/07/when-a-local-jury- characters in the most drama on television.”); (“Transforming wont-do/the-judges-decision-in-the- id. television chomping tsarnaev-casesets-a-bad-precedent-19; Har- viewers into who were at the guilt vey Silverglate, Why bit to or innocence drove the the Tsarnaev Trial Should declare Moved, Globe, coverage Delayed, media sensationalized Be Boston Jan. most Peterson, years: http://www.bostonglobe.com/opinion/ trials of the Scott next Arias.”). Casey Anthony, 2015/01/02/why-tsarnaev-trial-shouldmoved- Jodi delayed/K2is6uVCol79w6JzDLvZYJ/story. See, D'amore, html. e.g., Joe Tsarnaev Trial Boston, Times, Should Not Be in Gloucester Personal, Justice, 9, 2015, It's Boston http://www.gloucestertimes. Feb. 56. In Matters of Globe, 6, 2015, http://www.bpstonglobe. com/opinion/letter-tsarnaev-trial-should-not- Feb. be-in-boston/article_8155d310-7ba2-5046-a9 com/opinion/2015/02/05/matters-justice- aa-5406973c3df6.html; wyRx22d4P J/story. Farragher, personal/1HXYI vtxh2SO Thomas html. Tsarnaev Trial Should Be Moved to Another petition could receive a fair trial.57 issued an order once the instant Tsarnaev Many legal publications agree.58 per- But for mandamus was filed. The district notably, prospective jurors haps did, however, most immediately act that “it will be themselves have stated chastize Tsarnaev’s defense team pub- for impartial jury very tough to find this licly including quotes jury ques- from the crime,” that close to the Order, 22, 2015, tionnaires. See Text Jan. money,” and that “waste of time Case No. ECF No. 983. way juror] no could be im- [the “there is Though may legitimate there have been partial.” criticisms, delays reasons for these Yet, public, alleviating any suggest as these actions instead doubt proceedings, attorneys being punished to the fairness of the the Tsarnaev’s repeatedly district court has refused to doing jobs.60 for their grant change Tsarnaev’s motions for Rather than stepping remedy that, only venue. Not often refuses to appearance injustice and restore faith in act at all. Tsarnaev filed his second mo- system integrity before its is irrepara- change tion for of venue on December bly damaged, the majority largely but the district court sat on the motion for sidestepped the I my issue. As noted in a month issuing before its denial. In addi- petition dissent to Tsarnaev’s first for being just tion days to this five before mandamus, majority peti- denied his begin, selection was to it was also New receiving tion within hours of complete Unfortunately, Year’s Eve. the district Tsarnaev, briefing. In re 775 F.3d court went further and criticized Tsarnaev (1st Cir.2015) (Torruella, J., 457-59 dis- filing begin motion to with. See senting). today’s opinion, it likewise Order, Op. and Jan. Case No. 13- merits, focuses not on the but the “oner- EOF No. 1-6 (characterizing ous” burden Tsarnaev must overcome. the motion as an ill-timed delayed recap: Let us Tsarnaev was filmed be- motion for reconsideration despite Tsar- manhunt; ing four-day arrested after a attempt supplement naev’s the record victim, city, entire which in itself ais came with additional reports support- facts and bias). together adopted community Strong” “Boston as a ing A similar practice camaraderie; sign of national occurred when Tsarnaev media out- filed his third essentially stopped motion for a of venue. lets had Again, covering trial, district court failed to act promptly. bombing It sat and its aftermath prior to (both on the motion for days sixteen but the local news television and See, Palumbo, 57. e.g., Alysha 60. Tsarnaev Law- Trial, yers Quotes Use Juror to Move Defend See, Cohen, e.g., 58. Andrew Can Tsarnaev Get (Jan. 2015), England New Cable News Not., a Fair Trial in Boston? Course Bren- Of http://www.necn.com/news/new-england/ (Jan. 2015), http:// nan Center for Justice Boston-Marathon-Bombing-Suspect- www.brennancenter.org/analysis/can- Dzhokhar-Tsarnaev-Jury-Selection- tsarnaev-get-fair-trial-boston-course-not. Continues-289565681.html; Williams, Pete Judge Lawyers Releasing noting Chides Tsarnaev many pro- is worth other for Comments, (Jan. 22, 2015), jurors spective conveyed http:// similar Jurors’ NBC sentiments regarding unlikely prospect the www.nbcnews.com/news/us-news/judge- Tsarnaev receiving prospective a fair trial. While these chides-tsarnaev-lawyersreleasing-jurors- cause, hopefully were struck for their comments-n 291636. highlight strong comments further community. views in the sion, daily; jury any avoiding chance of such harm is report on print) continue gone. in the Moak- now being conducted selection is Courthouse, just a miles is few

ley which line, which finish from the Marathon’s Equities The Favor C. Transfer heavily guarded fortress sur- has become issue, Finally, writ equi- for the circus; the district rounded a media ties, balance, petition. must favor the acting in on Tsar- court has been slow Bulger, In re 710 F.3d at 45. Such is the criticizes his repeatedly naev’s motions and assuming case here. Even this ais “close advocating on his attorneys zealously case,” is, I not think which do it we should behalf; relief and when Tsarnaev seeks Again, err on the side of caution. let us court, majority rebuffs his forget, penalty not this is a death case. As not the kind of “American pleas. This is “[wjith Irvin, Supreme stated in Court expected is of the federal Justice” stake, his life at it is not requiring too courts, in a criminal death- particularly much that be tried in an atmo- magnitude import. of this penalty case sphere huge undisturbed so a wave of opined Skilling, in Sotomayor As Justice public passion.” 366 U.S. at 81 S.Ct. system justice demands trials “our court, government, 1639. The the district in fact.” appearance are fair both majority proffer have failed to any Skilling, 561 U.S. at 130 S.Ct. 2896 strong, persuasive why case reason J., (Sotomayor, concurring part in and dis- equities weigh against should transfer. now, By failing to act senting part). Indeed, supposedly strongest their point— majority only furthering perception that “the trial be held where the crimes pre-ordained this whole trial has a that, in part, committed” so “[m]em- “guarantee and that our of due outcome community bers of will have access nothing empty promise. but an process” room,” ante, trial and to the court Rideau, See 373 U.S. factually inaccurate. trial 29 is While the (“Any subsequent proceedings court in a be held where crime was commit- community exposed to such pervasively so ted, In- public will not have access. spectacle could be but a hollow formali- stead, public and the victims will be ty.... kangaroo proceedings relegated they “overflow” rooms where this case involved a more subtle but no proceedings can watch the on closed-link deprivation process real of due less video cameras. There is no reason that law.”). being held in a different district could A mandamus order from this court could Indeed, similarly that is be broadcast. error, clear have saved the district court’s exactly happened McVeigh. what Ac- danger avoided some of the of mistrial on cordingly, any legitimate doubt that Tsar- prejudiced pool, the basis of a tips naev cannot a fair trial receive that, harm precluded irreparable equities issuing in favor of the writ and eircús to form thanks to the media bound requiring a transfer out of this district. trial, mar around this would subse- quent trial for Tsarnaev the event of III. Conclusion such a mistrial or reversed conviction. guarantees irreparable harm is not limited to “[T]he Such himself, by a criminally to the accused a fair trial Tsarnaev but also extends jurors.” credibility integri- panel impartial, ‘indifferent’ damage done to the Irvin, I 81 S.Ct. 1639. As ty legal system. today’s of our deci- 366 U.S. With above, explained have almost entire compro- has been

pool potential bombings the Bostón Marathon mised though another. respect in one Even jurors may have the of in- potential best tentions, impossible I believe it is to em- jurisdiction

panel a this is impartial, let alone indifferent.

I this trial means for understand what community: opportunity for clo- sure, justice. But what makes sense strong both America and Boston we guarantee fundamental constitutional rights to even those who have us caused harm. Rather than greatest convict-

ing possibly sentencing Tsarnaev and him trial-by-media

to death based on and raw emotion, put we must our emotions aside proceed a rational manner. This guaranteeing giv- includes Tsarnaev a fair trial en .and accorded the utmost due process. The actions of the district court majority of this court fall short of

these ideals.

Tsarnaev is entitled to a writ of manda- ordering mus grant district court to Tsarnaev’s motion for a change of venue. this court grant refuses to

Because relief, I strongly dissent. America,

UNITED STATES of Appellee,

v. Anthony MORÁN-CALDERÓN, Raul

Defendant, Appellant.

No. 13-2140. Appeals, States Court of United Jorge L. Gerena-Mendez on brief for First Circuit. appellant. March Rodriguez-Velez,

Rosa Emilia United Pérez-Sosa, Attorney, States Nelson As- notes issue. and/or twenty-three question- its "own review of materials And those shows that stated their identifying provi- they opinion district court is in fact naires that had formed and, sionally qualified jurors guilty; twenty-three, with no or few Tsarnaev is of those one most, attenuated even stated be claimed connections that he would unable to set ante, Yet, bombings.” at 21. of the seven- that belief aside. traumatized Many previously A of those force. government official display of and area-wide shelter-in-place order has been established perimeter secure might understandably relive manhunt in each direction several blocks triggered by such similar trauma when Courthouse; vehicles authorized con- especially This is true show of force. admitted, being in- only after first but line is sidering the Marathon’s finish dogs. Anyone by bomb-sniffing spected the situs of the these mere miles from must then past perimeter it who makes anniver- two-year that the proceedings and barriers, only to navigate crowd-control in the bombing place will take sary of the phalanx of armed greeted by then be Tsarnaev’s trial. middle of officers stand- Protective Service Federal at the entrance the Court- ing guard court, ma- district government, Meanwhile, the roads are lined house. rejecting things differently. jority see cars, Department Police with Boston for a third motion Tsarnaev’s vans, and vehicles Security Homeland venue, already quali- jurors it to the points Upon from the U.S. Marshals Service. fied, question- concluding that the initial Courthouse, if one looks out entering the have done naires individual voir dire Harbor, Inner one garden to the past prejudiced out job effectively their weed that at least two U.S. Coast Guard sees impartial and allow the court to find Boats, Response Small “Defender” Class But, unique these circum- jurors. under machine high armed with a caliber each stances, credulity it strains to assume the waters behind the gun, patrolling are can ef- questionnaires and voir dire mere Courthouse. out biased residents and fectively weed seventy-five jurors who are qualified find much likely goes saying without Supreme As the impartial and indifferent. security dissipates when Tsarnaev of this in Irvin: explained Court I cannot evaluate is not in court. While juror when No doubt each was sincere security actually necessary whether such impar- that he would be fair and he said reasonable, impression gives off is im- psychological tial to but petitioner, in this proceedings clear: case before pact requiring such a declaration atmosphere in a taking place fortress-like

Case Details

Case Name: In Re: Tsarnaev v.

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 27, 2015

Citation: 780 F.3d 14

Docket Number: 15-1170

Court Abbreviation: 1st Cir.