Lead Opinion
Petitioner Dzhokhar A. Tsarnaev asks this court to compel the district court to grant a change of venue because of widespread pretrial publicity that he alleges has so tainted the potential jury pool that he will be unable to receive a trial before a fair and impartial jury in Boston. See generally Second Petition for Writ of Mandamus. We deny the Second Mandamus Petition because petitioner has not met the well-established standards for such relief and so we are forbidden by law from granting it.
The Supreme Court’s admonition over a century ago is true today:
The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.
Reynolds v. United States,
Thus, any high-profile case will receive significant media attention. It is no surprise that people in general, and especially the well-informed, will be aware of it. Knowledge, however, does not equate to disqualifying prejudice. Distinguishing between the two is at the heart of the jury selection process.
Trials have taken place in other high-profile cases in the communities where the
Indeed, after the September 11 terrorist attacks in 2001, the prosecution of Zacharias Moussaoui was brought in the Eastern District of Virginia, minutes by car from the Pentagon. The district court denied a change of venue motion, and the Fourth Circuit dismissed Moussaoui’s interlocutory appeal. United States v. Moussaoui,
Further, the events here, like the 1998 bombing of the World Trade Center and the September 11, 2001 attacks, received national and international attention. Petitioner does not deny that a jury anywhere in the country will have been exposed to some level of media attention. Indeed, his own polling data shows that, in .his preferred venue, Washington D.C., 96.5% of survey respondents had heard of the bombings at the Boston Marathon.
The mandamus relief sought is an extraordinary remedy, rarely granted, and has stringent requirements. To convince an appellate court to intervene is to employ “one of the most potent weapons in the judicial arsenal.” Cheney v. U.S. Dist. Court for D.C.,
I.
Petitioner is charged with multiple crimes arising out of the bombings at the Boston Marathon on April 15, 2013, killing three and injuring over 200. Some of these crimes potentially carry the death penalty. On June 18, 2014, petitioner filed his first motion to change venue claiming that pretrial publicity and the attendant public attitudes were so hostile and inflammatory that a presumption of prejudice had arisen requiring that he be tried in a different district. On September 24, 2014, the district court denied the motion in a thorough and detailed order. In its order, the court addressed the evidence used by petitioner in support of his motion and, applying the standards set out in Skilling v. United States,
On December 1, 2014, petitioner filed a second motion to change venue, arguing that the need for a change of venue had
Jury selection commenced on January 5, 2015, and continues to date. On January 22, 2015, petitioner filed in the district court his third motion to change venue in which he asserted that the detailed and extensive questionnaires completed by the 1,373 prospective jurors comprising the venire, combined with the record of individual voir dire compiled to date, mandated a change of venue because of pervasive bias and prejudgment uncovered during that-process. After petitioner filed this Petition, the district court denied the Third Motion for Change of Venue, in part for the reasons set forth in its earlier decisions, and in part because “the voir dire process is successfully identifying potential jurors who are capable of serving as fair and impartial jurors in this case.” United States v. Tsarnaev, No. 13-CR-10200-GAO (D.Mass. Feb. 6, 2015). “In light of that ongoing experience,” the district court concluded, “the third motion to change venue has even less, not more, merit than the prior ones.” Id. The court further maintained that “[cjoncerns about jurors who have fixed opinions or emotional connections to events, or who are vulnerable to improper influence from media coverage, are legitimate concerns. The [cjourt and the parties are diligently addressing them through the voir dire process.” Id.
This court held a hearing on the Second Petition for Mandamus on February 19, 2015, and allowed supplemental filings.
The Second Petition for Mandamus before us largely makes the same claims and relies on the same types of data as the Third Motion for Change of Venue which the district court denied. Petitioner argues that a presumption of prejudice exists here because aggregated data shows too many in the community and in the jury pool have expressed the opinion he is guilty and that those jurors have been affected by, or have connections to, the crime. He claims the continuing media attention exacerbates these problems. He argues that the judge erred in rejecting his claim that presumed prejudice has been established. From this, he argues, voir dire cannot succeed in finding a fair and impartial jury. This is so, he argues, even if the trial judge after voir dire qualifies a jury after determining the jurors so qualified to be fair and impartial. At this point, the trial judge has not sat a jury, but rather has identified over sixty provisionally qualified jurors who are still subject to peremptory challenges.
II.
The writ of mandamus is a “drastic” remedy; given its potential “to spawn
A. The Mandamus Standard Applicable Here.
The intersection of two constitutional mandates lie at the heart of resolution of petitioner’s mandamus claim. First, both Article III and the Sixth Amendment provide that a criminal defendant shall be tried in “the State where the ... Crimes ... have been committed.” U.S. Const, art. Ill, § 2, cl. 3; see also id. amend. VI (right wherein the crime to trial by “jury of the State shall have been committed”).
Second, the Sixth Amendment “secures to criminal defendants the right to trial by an impartial jury.” Skilling,
Importantly, if petitioner goes to trial without a change of venue now and is convicted, he will have the opportunity to raise a challenge based on lack of a fair and impartial jury on direct appeal. Indeed, that is the customary mechanism by
Instead of traveling that typical route, petitioner asks this court for a writ of mandamus at this pretrial stage. And the mandamus petition in this case is particularly unusual. It came in the process of ongoing jury selection and is an attempt to prevent a trial in this jurisdiction from going forward. Petitioner urges this appellate court to intervene and halt that juror selection process in the trial court. He does so despite the fact that, the district court, sitting in the “locale where the publicity is said to have had its effect,” necessarily and properly under the law draws on its “own perception of the depth and extent of news stories that might influence a juror.” Mu’Min,
Because petitioner’s venue claim “arises not on direct appeal after trial but on petition for a writ of mandamus,” it is subject to “an even more, exacting burden” than it would be on direct appeal. In re Bulger,
In addition to overcoming the daunting first requirement, petitioner must also meet two other standards. First, he must demonstrate that he has no other adequate source of relief; in other words, he must show irreparable harm. In re Bulger,
B. It is not Clear and Indisputable that Pretrial Publicity Requires a Change of Venue.
We are bound by the Supreme Court’s decision in Skilling, a case in which the venue question was examined after conviction. This case, by contrast, is an attempt to force a trial judge to change venue despite his findings that no presumption of prejudice has arisen, and that there are jurors provisionally qualified to date
The Supreme Court first surveyed and distinguished its earlier cases, including Rideau v. Louisiana,
It is apparent that petitioner cannot meet the high bar set for mandamus relief, based on the parties’ submissions and the parts of the record the parties have relied on in their arguments to us. Petitioner argues that the bombings have so impacted the entire Boston-area community that we must presume prejudice for any jury drawn from the Eastern Division of Massachusetts.
Boston, like Houston in Skilling, is a large, diverse metropolitan area. Boston-area residents obtain their news from a vast array of sources. By contrast, in Rideau, a 1963 case from Louisiana, the Court found it was a denial of due process to have refused a request for change of venue where at least 50,000 people in an area of 150,000 saw the video of a staged interview by the Sheriff resulting in a “confession” by defendant, who had not been advised of his right to counsel.
While there has been extensive publicity in this case, the atmosphere here is not to be characterized as disruptive to the ability of the petitioner to be adjudged by a fair and impartial jury. This case is in sharp contrast with Estes v. Texas,
The nearly two years that have passed since the Marathon bombings has allowed the decibel level of publicity about the crimes themselves to drop and community passions to diminish. See Patton v. Yount,
Petitioner’s heavy reliance on Irvin v. Dowd,
After venue was moved to an adjoining county for his trial on one murder charge, the voir dire commenced only eleven months after the murder was committed and eight months after he was arrested and confessed. In that very small community of 30,000, in which the local newspapers containing the inflammatory articles were delivered to 95% of the households, the details of defendant’s confession and offer to plead guilty if promised a 99-year sentence, combined with the details of his criminal history, required vacation of the lower court judgments. The trial court itself excluded 62% of the venire “for cause as having fixed opinions as to” defendant’s guilt. Id. at 727,
Irvin, in fact, was followed twenty-three years later by Patton, where the Supreme Court found no denial of the defendant’s right to an impartial jury. There,
[t]he voir dire showed that all but 2 of 163 veniremen questioned about the case had heard of it, and that, 126, or 77%, admitted they would carry an opinion into the jury box. This was a higher percentage than in Irvin, where 62% of the 430 veniremen were dismissed for cause because they had fixed opinions concerning the petitioner’s guilt. Finally, ... 8 of the 14 jurors and alternates actually seated admitted that at some time they had formed an opinion as to Yount’s guilt.
Patton,
Here, we cannot say that the district court clearly and indisputably erred in concluding that the publicity surrounding petitioner’s pretrial proceedings — and the community’s knowledge about the Boston Marathon bombings — has not crossed from familiarity, as in Patton, to the prejudice evidenced in a case like Irvin.
Petitioner and the dissent also compare this case to a district court’s exercise of discretion to change venue in United States v. McVeigh,
That trial judge’s exercise of discretion in McVeigh to move the trial to Denver says nothing about how the trial judge here should exercise his discretion. Nor was it meant to. As the judge in McVeigh wrote, “[tjhere are so many variables involved that no two trials can be compared regardless of apparent similarities.” Id. at 1473. Insofar as the cases are similar, the McVeigh judge’s decision to move the trial to Denver does not suggest that a decision to keep this trial in Boston is an abuse of discretion — much less a clear and indisputable one.
The dissent asks the rhetorical question “if not here, when?” The Supreme Court answered that question in Rideau, where an unrepresented defendant’s twenty-minute, in-depth confession in the form of an “interview” with the Sheriff was recorded and broadcast multiple times in a small Louisiana parish. That interview and not
C. The Ongoing Jurg Selection Process Does Not Suggest Pervasive Prejudice.
Beyond the publicity itself, petitioner also relies on the responses to jury questionnaires and the content of the voir dire as a basis for finding prejudice. He asserts that what we have seen from the juror selection process confirms that pretrial publicity has indisputably raised a presumption of prejudice sufficient to mandate that his trial be moved. Petitioner’s essential claim is thus that the prejudice against him is so great that nothing the district court can do will offset it. Every potential juror in the Eastern Division of Massachusetts is automatically disqualified, he maintains. That alone is a remarkable assumption about the five million people in the Eastern Division and one much to be doubted. Our dissenting colleague, too, argues that this “second analytical route,” based on the course of the jury selection to date, reveals an irrefutable presumption of prejudice among the jury pool. The careful selection process and the trial judge’s expressed confidence in finding sufficient jurors, however, is supported by the record and persuasively undercuts this argument.
First, it is necessary to describe the ongoing jury selection process that has been underway in the district court. In doing so, we observe that our caselaw says that “[a] guiding beacon ... is the trial judge, who is responsible for conducting the voir dire and to whom we defer from our more distant appellate position.” Quiles-Olivo,
Smaller groups of twenty to twenty-five prospective jurors have come to the Bos
We have reviewed the entire voir dire conducted to this point by the court and the parties and the process has been thorough and appropriately calibrated to expose bias, ignorance, and prevarication.
the experience of voir dire suggests ... that the full process — including summonsing an expanded jury pool; utilizing a lengthy questionnaire jointly developed by the parties and the [e]ourt; giving the parties ample time to review questionnaires, research jurors, and consult with their jury selection advisers; and permitting both the [c]ourt and the parties to conduct thorough voir dire — is working to ferret out those jurors who should appropriately be excused for cause.
Our dissenting colleague comes to the opposite conclusion, claiming that the length of the jury selection process and the responses of the venire thus far indicate pervasive prejudice. In doing so, however, the dissent confuses mere exposure to publicity with “disqualifying prejudice” — only the second of which, when widespread throughout the jury pool, is particularly relevant to a presumption of prejudice. See United States v. Angiulo,
As an initial matter, the dissent contends that the length of the jury selection process in this case has its genesis in the pervasive prejudice permeating through the jury pool. But a jury selection process
Moreover, it defies logic to count the efforts the district court has taken to carefully explore, and eliminate, any prejudice as showing the existence of the same.
Our dissenting colleague also quotes a variety of allegedly “representative” juror responses in an effort to demonstrate that the jury pool is rife with disqualifying prejudice that requires us to doubt the avowals of impartiality from all members of the venire. But the reality of the record is
The majority of the quoted statements in the dissent regarding views of Tsarnaev’s guilt, and all of the most extreme, come from the questionnaires of jurors who the parties agreed to excuse and were excused without individual questioning. In that sense, the parties and the court have plainly acknowledged that those members of the pool are not representative of the more than 250 pool members who, by contrast, have thus far been called back for individual questioning. Still other quotes involve statements made to potential jurors by acquaintances or coworkers which are hardly probative of the potential juror’s own attitudes. In any event, those jurors were never provisionally qualified. They were either not called back for individual voir dire or struck for cause after the district judge was able to assess their demeanor in person. While a single juror has been provisionally qualified among the group whom the dissent discusses as having expressed views on guilt, the full context of his or her mild statement made clear that he or she was able to put aside any initial impressions he or she may hold — and, we note, the defense also did not object to that juror for cause.
Nor do we think such statements are so common among the pool of excused jurors that a court must infer bias among others who have been provisionally qualified. It is not surprising that in a pool of over a thousand jurors with varying opinions, some will make strong statements that disqualify them from jury service. Others have expressed their ability to be fair and impartial. The honesty of their answers, conscious and subconscious, has been probed by extensive voir dire, as the Supreme Court approved in Skilling.
The putative “personal connections” proffered by the dissent also are mischaracterizations of the record. Many of the connections attributed to prospective jurors are, clearly, attenuated or tangential. And all but two of those quoted come from the questionnaires of jurors whose panels have not yet been questioned. The record gives us no reason to doubt that, like their congeners from the first several panels, those with the closest connections will be struck on the agreement ’of the parties or
Finally, as for the exposure to publicity, we emphasize again that “juror impartiality ... does not require ignorance.” Skilling,
Ultimately, rather than a voir dire taking a total of five hours, as in Skilling, the voir, dire in this ease has taken — appropriately we think — several weeks. To the extent that the dissent suggests that this lengthy voir dire, and the sentiment it has demonstrated, indicates that a presumption of prejudice exists which cannot be overcome, we disagree. We cannot say that the procedures put in place by the trial judge are either insufficient on their face or so inadequately implemented as to justify an interruption of the process and a change of venue. Nor are we convinced that the results thus far compel such a drastic step. Indeed, as the district court noted, “the defendant’s presentation of a series of selective quotations from the 1300-plus questionnaires is misleading because the quotations are not fairly representative of the content of the questionnaires generally.” So too, in the filings before us and in the dissent. In sum, neither the length of the district court’s careful selection process nor the sentiments of the venire as a whole provide any basis for concluding, on mandamus, that pervasive prejudice taints the entire jury pool.
D. Petitioner Has Not Demonstrated Irreparable Harm.
Petitioner has not established a clear and indisputable right to relief but we address irreparable injury in any event. The law is designed to prevent use of mandamus to circumvent normal post-trial appellate review, as petitioner attempts here. Cheney,
Petitioner relies heavily on our decision in Bulger to argue that both he and the reputation of the legal system will suffer irreparable injury if he does not prevail on his pretrial petition. Bulger involved a very different question and different standards. There the question was whether a reasonable member of the public might question the judge’s ability to preside impartially, due to the nature of his prior employment. In re Bulger,
E. The Balance of Equities do not Favor Granting Mandamus.
Given petitioner’s failure to meet the prior two standards, he is not entitled to test the balance of the equities. But even then, the balance of the equities does not favor petitioner, whose arguments insufficiently credit the Constitution’s provisions that the trial be held where the crimes were committed. Tsarnaev’s peers in the Boston area will constitute the jury. Members of the community will have access to the trial and to the court room and spillover courtrooms. The victims and witnesses are located here and will not be forced to undertake the burdens of travel elsewhere. The same is true of those who have known petitioner as a resident and member of the community.
Moreover and most importantly, this Petition requests that we interfere in the careful jury selection process that has been ongoing in the district court, despite the fact that the petitioner remains able to raise claims of lack of an impartial jury on direct appeal. Such direct interference in an ongoing trial matter by an appellate court is inimical to our process of justice and our respect for the reasoned decisions of district court judges. Just as we are unable to conclude that it is clear and indisputable that the petitioner cannot receive a fair trial by an impartial jury in the Eastern Division of Massachusetts, the relevant interests weigh in favor of allowing the jury selection process to continue. And they weigh against taking the unprecedented step of abandoning our “primary reliance on the judgment of the trial court.” Skilling,
III.
The Second Petition for Mandamus is denied.
Notes
. The parties have each received twenty-three peremptory challenges, three more than required by the applicable rule. Fed.R.Crim.P. 24(b)(1).
. Rule 21(a) of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” "Generally, a presumption of prejudice is reserved for those extreme cases where publicity is both extensive and sensational in nature. Stated differently, Rule 21(a)’s requirements tend to almost exclusively apply in cases in which pervasive pretrial publicity has inflamed passions in the host community past the breaking point.” Quiles-Olivo,
. At oral argument, it was the position of petitioner that denials of motions to change venue are reviewed for abuse of discretion and that a clear abuse of discretion would give rise to a clear entitlement to relief. Petitioner characterized “the change of venue in this case” as being "at the heart of the Sixth Amendment” right to trial by an impartial jury.
. For purposes of this opinion, we will assume that the petitioner can prove his argument that the district court's denial of the pretrial Third Motion for Change of Venue is subject to mandamus review at all, see In re Kouri-Perez,
. The “provisionally qualified” jurors are still to be subject to peremptory challenges.
. Skilling first moved for change of venue four months after he was indicted; he renewed the motion three weeks before trial, shortly after a co-defendant pleaded guilty. See Skilling,
. We have a different view than the dissent’s description of the courthouse and its environs. While jury selection has been going on there was not a courthouse view of a dump truck or a view of a construction site showing a Boston Strong banner. Presumably the dissent is referring to a photograph taken of a banner on a partially constructed building from early 2014, which has not been present during jury selection in 2015. Nothing can be seen from the courthouse of any banner at this time. Nor has the petitioner claimed that any members of the jury pool present at the courthouse were exposed to the cement mixer on the single day it was present in the area. Even if these assertions were true, that does not show presumed prejudice of any sort.
. Indeed, the Court relied on prior cases in which so-called "voluntary confessions” were extracted by brutal force. Rideau,
. In footnote 36 of the dissent, our dissenting colleague has made an unfounded argument that not even petitioner has made.
. The dissent's remarkable statement that the image of the petitioner being taken from a boat was "quite likely seen by nearly 100% of the Eastern Division of Massachusetts population” is completely unfounded; we can find no basis in the record for that contention.
. Petitioner does not make an argument that his jury will suffer from actual prejudice. Nor could he. A post-trial finding of "[ajctual prejudice hinges on whether the jurors seated at trial demonstrated actual partiality that they were incapable of setting aside.” Quiles-Olivo,
. Petitioner has never made the claims now made by the dissent that security arrangements at the Boston courthouse as to the trial have somehow contaminated the potential jury pool, such that the jurors eventually picked cannot be fair and impartial. Indeed, we reject the dissent’s "impression” that security is necessary because petitioner is "extraordinarily dangerous.” Security, to the contrary, no doubt will contribute to the safe and orderly conduct of the trial. Further, the dissent cannot and does not purport to describe the security arrangements for the jurors who will sit. Importantly, even if this case were transferred to a federal courthouse in another place, appropriately high security arrangements would be in place. This simply is not an appropriate consideration in this case.
. The bombings in Boston, the murder of a policeman, and the other criminal events charged did in fact take place and were heavily covered by the media around the world. As Reynolds instructs, that is a separate matter from the matter of whether petitioner is guilty of the crimes charged. See
.Jury selection can sometimes take weeks, particularly in complicated or high-profile cases. See, e.g., Miller-El v. Cockrell,
. See Bill Hawkins, Capital Punishment and the Administration of Justice: A Trial Prosecutor's Perspective, 89 Judicature 258, 259 (2006) (ndting that, in Texas, selection in counties that often handle death-penalty cases typically takes three weeks, while in locales where the death penalty is a "rare instance” selection "may last much longer”).
. The dissent makes the argument that any jury found to be unbiased during voir dire in fact then cannot be "indifferent.” This is topsy turvy.
. We explain the limited relevance of these statements specific to each category the dissent lists. However, it is worth describing them in the aggregate and mentioning what the dissent does not. Of the thirty-two selective quotations the dissent presents in bullet-point fashion, see Dissenting op. at 35-37, twenty-one come from jurors who were stricken by the district court, or by agreement of the parties, for cause. Eight more come from the questionnaires of jurors whose panels have not yet been individually questioned. Given the results of the voir dire process thus far, nothing in the record suggests that any of those jurors expressing bias will nevertheless be provisionally qualified. Finally, while three quotes do come from the voir dire of two provisionally qualified jurors, taken in the context of those jurors’ entire voir dire, there is no indication that those jurors are biased.
. The dissent notes, in passing, that one of the provisionally qualified jurors selected on his or her questionnaire that he or she would be “unable” to put aside his or her opinion regarding the defendant’s guilt. But the parties expressed no concern about this juror and, any concern that may have been warranted by the juror’s initial selection on the questionnaire, was eliminated by voir dire. During questioning the juror evidenced a clear and unequivocal ability to base his or her decision solely on the evidence presented during trial. Indeed, the defense neither asked about this juror's questionnaire answer nor objected to the juror's qualification for cause.
. The dissent's claims to the contrary are confusing and contradictory, to say the least. Despite maintaining throughout his opinion that the decibel of publicity in the Boston area has been much greater, and more consistent, while the coverage nationwide has slowly dwindled, see Dissenting op. at 31-32, 34, 43-44, our dissenting colleague suddenly claims exactly the opposite. He contends that a case of this magnitude will face unique difficulties for retrial elsewhere because any subsequent jury — presumably one outside of Massachusetts, if any conviction is overturned on venue grounds — will be "exposed to the
Dissenting Opinion
(Dissenting).
“ ‘[Rjegardless of the heinousness of the crime charged, the apparent guilt of the offender[,] or. the station in life which he occupies,’ our system of justice demands trials that are fair in both appearance and fact.” Skilling v. United States,
The whole world is watching to see how the American legal system treats Tsarnaev, even if he is allegedly the most dreadful of defendants. Every move taken is scrutinized to see if the bedrock American rights of “innocent until proven guilty” and the “right to a fair trial by an impartial jury” are given to a foreign-born defendant accused of terrorism — among the most heinous of crimes. Unfortunately, both the district court and majority fail to uphold these rights, and this failure damages the credibility of the American judicial system.
I do not dispute that “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court for N. Dist of Cal.,
I. Background
On April 15, 2013, two bombs exploded near the finish line of the Boston Marathon on Boylston Street in downtown Boston. Three people were killed and approximately 264 others were injured. Countless others ran from the scene in terror. Over the next four days, a massive manhunt for those responsible ensued. On the third day, April 18, authorities released video surveillance and photos of the suspects: Tamerlan and Dzhokhar Tsarnaev. That night, while the brothers were trying to flee Boston, they allegedly carjacked an SUV and killed an MIT police officer. In a subsequent shootout with police, Tamerlan Tsarnaev was seriously injured. Dzhokhar Tsarnaev (hereinafter, “Tsarnaev”) was able to temporarily escape, in part by allegedly driving over his' brother.
Finally, on April 19, the search had narrowed to the Boston suburb of Watertown. In an unprecedented move, authorities called for a “shelter-in-place” advisory, ef
Most — if not all — of this four-day ordeal was shown live on television and reported real-time on the internet. Print newspapers, meanwhile, published daily recaps of the previous day’s events, including the pictures of a bloodied Tsarnaev.
Over the next few weeks, nationwide coverage continued, slowly dwindled, and, with the exception of the occasional story here-and-there, eventually ended. In Massachusetts, however, the story did not end. Instead, the local news (both television and print) continued to cover all the details of the bombing and its aftermath. The reporting focused not only on Tsarnaev, but on the city as a whole. Coverage included stories of the victims and their family and friends, those who bravely risked their lives to help the victims, and how the entire community came together.
These stories and the “Boston Strong” campaign continue to this day, almost two years later. Just over four weeks ago, as Boston was slammed with a massive blizzard leaving approximately two feet of snow, a man took it upon himself to shovel the finish line of the Marathon. This man was referred to by many in the community as a “hero” and a “snowmaritan,” and led to the viral “# WhoShoveledTheFinishLine” hashtag on social media.
There is no doubt that Boston has, quite laudably, emerged from this attack stronger and more united than it was before. However, these events also show that Boston has not yet fully recovered, and that every resident — whether or not they were at the marathon that day, knew a victim, or were subject to the shelter-in-place order
We are now tasked with deciding whether the effects of these tragic events and the unrelenting media coverage that followed and continues to this day have affected Tsarnaev’s constitutional right to a trial by a jury that is fair, impartial, and indifferent, and if so, whether we should apply our mandamus power to intervene.
II. Discussion
Courts throughout the country have found mandamus to be an appropriate, albeit rarely implemented, vehicle to challenge a district court’s change-of-venue decision. See, e.g., In re Volkswagen of Am., Inc., 545 F.3d 304, 308-09, (5th Cir.2008); Matter of Balsimo,
A. Tsarnaev Is Entitled to a Change of Venue
While Article III of the Constitution provides that criminal trials “shall be held in the State where the said Crimes shall have been committed,” U.S. Const, art. Ill, § 2, cl. 3, that requirement is far from absolute. The Sixth Amendment requires that the trial take place “by an impartial jury of the State and district wherein the crime shall have been committed,” U.S. Const, amend. VI (emphasis added), and the Fifth Amendment’s Due Process Clause requires fundamental fairness in trials, see U.S. Const, amend. V. See also Skilling,
1. A Presumption of Prejudice Exists Which Cannot Be Overcome
“In determining whether sufficient prejudice exist[s] to require a change of venue, we must conduct two inquiries: 1) whether jury prejudice should be presumed given the facts before us; or 2) if prejudice should not be presumed, whether the jury was actually prejudiced.” United States v. Angiulo,
As to the first, there is little doubt in my mind that the pretrial publicity — which has been pervasive, prejudicial, and inflammatory — has so saturated the Eastern Division of the District of Massachusetts and persists to this day such that we must presume Tsarnaev cannot obtain a fair and impartial trial here. As explained above, the city of Boston
One reaches the same conclusion under the second analytical route, which involves examining the jury selection to date. “[T]he ‘length to which the trial court must go in order to select jurors who appear to
Prospective Jurors’ Views on Tsarnaev’s Guilt
• “[H]ow could I possibly find the defendant not guilty with all the news information. I have trouble accepting him getting housing & living assistance from the state of MA, education without paying, taking the oath of citizenship and then committing crimes against innocent everyday people who are also citizens of USA. Not to mention taxpayers]]] $ $ $”
• “He does not deserve a trial.”
• “Caught redhanded should not waste the $ on the trial.”
• “[T]hey shouldn’t waste the bulits [sic] or poison; hang them.”
• “[W]e all know he’s guilty so quit wasting everybody’s time with a jury and string him up.”
• “People told me the defendant is overwhelmingly guilty.”
• “[M]ost commented on the fact that we should skip the trial & go right to sentencing b/c of the assumed guilt of the heinous crimes that he’s accused of.”
• “[It’s] hard to understand how someone can defend a murderer.”
• “I have formed the opinion that a convicted terrorist should receive the death penalty. They’re the enemy of my country.”
• “Yeah, I think when I first checked the guilty [box], you know, if I felt that he was guilty box, I realized after, I don’t know what all the charges are, so I can’t know that he’s guilty, because I don’t know what the charges are or what the evidence is and all of that. But I think that there’s involvement. There was so much media coverage, even just the shootout in Watertown. I watched it on TV. And so I feel like there’s involvement there, like I think it’s — anybody would think that.”
• The juror’s knowledge of graphic pictures, “especially the little boy,” would affect the juror’s ability to serve because the juror “ha[s] a son.”
*36 • “I truly believe that in a sense that [the death penalty] could be the easy way out for the defendant. He could may [sic] want that. So that’s why I said that. But as far as this next part, again, at the time I said — I thought about it a lot since I did this questionnaire. I don’t know if I would be able to say he’s not guilty. I think, no matter what, he’s guilty, no matter what. As far as the death penalty, though, I still — I wouldn’t have an issue, you know, agreeing to the death penalty, but, yeah, it’s the easy-way-out thing. I’m not sure, that’s the main thing for me.”
• “[F]or this case I think a public execution would be appropriate, preferably by bomb at the finish line of the marathon.”
• When the prospective juror’s coworkers heard she might be picked for this trial, “[t]hey basically said, ‘Fry him.’ “
• “I haven’t heard both sides of the story, but on the other side, I’m supposed to hear the not guilty side louder first than the guilty side. So I guess I should be going in with an assumption of not guilty, but I’m not.”
Prospective Jurors’ Personal Connections to the Bombings
• “You don’t [sic] want to' know [what I thought when I received my summons]! I have close friends that work the emergency room at MA General! What I really thought? We give you home, money eduat [sic] & this is how you pay us back? I’m sorry I’m all for the death penity [sic] on this — my friends still have nightmare [sic] of that day! ”
• “I think we all were effected [sic] by the death of that little boy (Martin) from Dorchester.”
• “It does [affect my ability to be fair and impartial]. The Boston Strong bumper sticker ... represents to me the way the city came together and helped, and just show[s] the unity of Boston.... ”
• “We know many people that ran and watched the marathon that day so it was always being discussed.”
• “I knew 11 people running that day.”
• “I feel anyone near the Boston area was effected [sic] by this event.”
• “My children were horrified, and even when we thought things were under control, we went into lock-down. It was a horrible week of fear, anger, confusion that we lived through.”
• One prospective juror could not put aside a belief that Tsarnaev was guilty because a close friend who was at the Marathon’s finish line has had to undergo “multiple surgeries” to her leg
• due to shrapnel from one of the bombs.
Prospective Jurors’ Exposure to Publicity About the Case
• “Well, I read the paper every day, and I watch the news two hours every day. So over the course of the past year, I’ve obviously seen and read and heard quite a bit.”
• “My husband and I watched the events on TV [live], including lockdown and capture — it was very upsetting, traumatizing, made you feel not safe in your own ‘back yard.’ ”
• “It’s kind of like saying erase everything you have in your head from something. I don’t know that I would be able to erase my memory of everything that I’ve read, seen, and heard.”
• “Absolutely. How could you not [have followed events during the week of the bombing].”
*37 • “I remember seeing some raw footage that day which I’ll never forget. Yeah, there was a lot going on that day, and it really struck me deeply.”
• “Well, I mean, from seeing and seeing all the evidence that was publicly available, you know, and the having all the casualty that occurred during that, yes, I feel that he is guilty, and I think the punishment should be, you know, death, because personally I think that this is something that — I feel takes a greater weight as 9/11, you know, where there were so many lives affected, you know, with, you know, legs or whatnot, you know, that they live every single day now....”
• “I think there’s a lot [of concern about the media arrangement], there were questions and there’s a lot of conversation, and if you were a potential juror, you’d need to be avoiding the media, and it’s so front and center, it’s difficult. And, you know, just even driving in the car, the news comes on, and, you know, I’ve heard, you know, you try to switch it, but you hear things.... ”
• “In terms of the feelings on guilt, I think that just comes from the initial things in the news when the event happened and seeing all that. So that’s kind of formed that perspective.”
• “Actually, I think I could be fair, but I do have this image in my mind that I can’t deny, to be perfectly honest.... The image of him putting the backpack behind that little boy.”
After reading these comments, it is clear to me that the jury pool is not composed of unbiased, indifferent individuals.
This prejudice is only highlighted and magnified by the surroundings in which jury selection is occurring. Each day, when jurors report to the John Joseph Moakley United States Courthouse, they cannot help but observe an overwhelming
It likely goes without saying that much of this security dissipates when Tsarnaev is not in court. While I cannot evaluate whether such security is actually necessary or reasonable, the impression it gives off is clear: the proceedings in this case are taking place in a fortress-like atmosphere because Tsarnaev must be extraordinarily dangerous. As a result, prospective jurors are inundated with the message that Tsarnaev is a threat who requires the full force of the U.S. Military and civilian security apparatus in response. I do not fault the many security personnel for doing their duty; nor do I fault their superiors for taking precautions regarding the security of the court. Still, I am troubled by how such a conspicuous show of force outside the Courthouse may influence the proceedings within it, especially to a jury pool already so deeply affected by the events. Many of those previously traumatized by the shelter-in-place order and area-wide manhunt might understandably relive that trauma when triggered by such a similar show of force. This is especially true considering the Marathon’s finish line is only mere miles from the situs of the these proceedings and that the two-year anniversary of the bombing will take place in the middle of Tsarnaev’s trial.
The government, district court, and majority see things differently. In rejecting Tsarnaev’s third motion for a change of venue, it points to the jurors already qualified, concluding that the initial questionnaires and individual voir dire have done their job to effectively weed out prejudiced jurors and allow the court to find impartial jurors. But, under these unique circumstances, it strains credulity to assume that mere questionnaires and voir dire can effectively weed out biased residents and find seventy-five qualified jurors who are impartial and indifferent. As the Supreme Court explained in Irvin:
No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, “You can’t forget what you hear and see.”34
The existence of ... prejudice is difficult to prove. Indeed it may go unrecognized in those who are affected by it. The prejudice that may deny a fair trial*39 is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to something not included in the evidence.
Where a high percentage of the venire admits to a disqualifying prejudice, a court may properly question the remaining jurors’ avowals of impartiality, and choose to presume prejudice.
Finally, even if it were possible to overcome the presumption of prejudice and find truly impartial and unbiased jurors, these jurors would certainly not be “indifferent,” as almost every prospective juror has some connection to the events. See Irvin,
There is no doubt in my mind that the circumstances surrounding this case— which, it cannot be emphasized enough, is a death penalty case — create a presumption of prejudice. I have seen nothing in either the questionnaires or the voir dire to suggest otherwise. Indeed, the government is unable to point to a single instance in any of the 463 criminal jury cases heard in this Circuit (188 of which were in the District of Massachusetts) in the past five years where statements made during jury selection came even close to approximating the quite understandable level of bias, hate, disgust, and outrage manifested by so many of the prospective jurors here. For all these reasons, the district court’s decision to thrice deny Tsarnaev’s motion for a change of venue is a clear abuse of discretion.
2. This Case Is Comparable to McVeigh, Rideau, and Irvin
It is extremely disappointing that both the district court and the majority fail to appreciate the similarities to United States v. McVeigh,
The court concluded “that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state.” Id. at 1474 (emphasis added). Specifically, the district court relied on the following factors. First, while initially there was “extremely comprehensive” national media coverage, “[a]s time passed, differences developed in both the volume and focus of the media coverage in Oklahoma compared with local coverage outside of Oklahoma and with national news coverage.” Id. at 1470-71. While national coverage dwindled, local coverage continued for months after the explosion and focused on “more personal” coverage “of the victims and their families” and of “individual stories of grief and recovery.” Id. at 1471. Second, “Oklahomans [were] united as a family with a spirit unique to the state. Indeed, the ‘Oklahoma family’ ha[d] been a common theme in the Oklahoma media coverage, with numerous reports of how the explosion shook the entire state, and how the state ha[d] pulled together in response.” Id. Third, “[t]he possible prejudicial impact of this type of publicity [wa]s not something measurable by any objective standards.” Id. at 1473.
These considerations are identical to those in the present case.
Four other eases are also worth mentioning. In Rideau v. Louisiana,
it was a denial of due process of law to refuse the request for a change of venue, after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail.... For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial.
Id. at 726,
Similarly, in Irvin v. Dowd,
In all of these cases, each involving the death penalty and three involving similar acts of terrorism,
3. This Case Is Not Comparable to Skilling
The government, district court, and majority, however, all disagree and equate this case to United States v. Skilling,
First, it explained that Houston is “the fourth most populous city in the Nation.” Id. at 382,
Second, the Skilling Court examined the pretrial publicity and emphasized that “although news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight.” Id. at 382,
Third, the Skilling Court explained that “over four years elapsed between Enron’s bankruptcy and Skilling’s trial” and that “the decibel level of media attention diminished somewhat in the years following Enron’s collapse.” Id. at 383,
Fourth, the Court rejected Skilling’s argument that the “sheer number of victims” triggered a presumption of prejudice because the “jurors’ links to Enron were either nonexistent or attenuated.” S'killing,
Finally, the Supreme Court agreed with Skilling that a co-conspirator’s “well-publicized decision to plead guilty shortly before trial created a danger of juror prejudice,” but found that any prejudice was lessened due to the district court granting a continuance and addressing the issue during voir dire. Id. at 384-85,
4. If Not Here, When?
If a change of venue is not required in a case like this, I cannot imagine a case where it would be. The entire city of Boston has been terrorized and victimized, and deep-seated prejudice against those responsible permeates daily life. If residents of the Eastern Division of the District of Massachusetts did not already resent Tsarnaev and predetermine his guilt, the constant reporting on the Marathon bombing and its aftermath could only further convince the prospective jurors of his guilt. Adding the death penalty element to these circumstances, and the makings for a presumption of prejudice abound. If a presumption does not exist here, when would it? How big must a terrorist attack be? How numerous and widespread must the body count and impact be? How pervasive and detailed must the coverage be before a federal court must presume the existence of prejudice?
By refusing to grant a change of venue in this case — one of the most well-known, well-publicized, and emotionally-resonant
B. A Failure to Act Will Cause Irreparable Harm
The second requirement for a writ of mandamus to issue is that a defendant must show “relief is necessary to prevent irreparable harm.” In re Justices of the Supreme Court of P.R.,
There is serious doubt in the public sphere that Tsarnaev can receive a fair trial in the District of Massachusetts. Major papers throughout the world have published articles suggesting that the trial should be moved outside of Boston.
Yet, instead of alleviating any doubt as to the fairness of the proceedings, the district court has repeatedly refused to grant Tsarnaev’s motions for change of venue. Not only that, it often refuses to act at all. Tsarnaev filed his second motion for change of venue on December 1, but the district court sat on the motion for a month before issuing its denial. In addition to this being just five days before jury selection was to begin, it was also New Year’s Eve. Unfortunately, the district court went further and criticized Tsarnaev for filing the motion to begin with. See Op. and Order, Jan. 2, 2015, Case No. 13-10200, EOF No. 887, 1-6 (characterizing the motion as an ill-timed and delayed motion for reconsideration despite Tsarnaev’s attempt to supplement the record with additional facts and reports supporting community bias). A similar practice occurred when Tsarnaev filed his third motion for a change of venue. Again, the district court failed to act promptly. It sat on the motion for sixteen days and only issued an order once the instant petition for mandamus was filed. The district court did, however, immediately act to chastize Tsarnaev’s defense team for publicly including quotes from the jury questionnaires. See Text Order, Jan. 22, 2015, Case No. 13-10200, ECF No. 983. Though there may have been legitimate reasons for these delays and criticisms, to the public, these actions may suggest that Tsarnaev’s attorneys are being punished for doing their jobs.
Rather than stepping in to remedy this appearance of injustice and restore faith in the system before its integrity is irreparably damaged, the majority has largely sidestepped the issue. As I noted in my dissent to Tsarnaev’s first petition for mandamus, the majority denied his petition within hours of receiving the complete briefing. In re Tsarnaev,
Let us recap: Tsarnaev was filmed being arrested after a four-day manhunt; the entire city, which in itself is a victim, came together and adopted “Boston Strong” as a sign of camaraderie; national media outlets had essentially stopped covering the bombing and its aftermath prior to trial, but the local news (both television and
As Justice Sotomayor opined in Skilling, “our system of justice demands trials that are fair in both appearance and fact.” Skilling,
A mandamus order from this court could have saved the district court’s clear error, avoided some of the danger of mistrial on the basis of a prejudiced jury pool, and precluded the irreparable harm that, thanks to the media eircús bound to form around this trial, would mar any subsequent trial for Tsarnaev in the event of such a mistrial or reversed conviction. Such irreparable harm is not limited to Tsarnaev himself, but also extends to the damage done to the credibility and integrity of our legal system. With today’s decision, any chance of avoiding such harm is now gone.
C. The Equities Favor Transfer
Finally, for the writ to issue, the equities, on balance, must favor the petition. In re Bulger,
III. Conclusion
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin,
I understand what this trial means for the community: an opportunity for closure, a sense of justice. But what makes both America and Boston strong is that we guarantee fundamental constitutional rights to even those who have caused us the greatest harm. Rather than convicting Tsarnaev and possibly sentencing him to death based on trial-by-media and raw emotion, we must put our emotions aside and proceed in a rational manner. This includes guaranteeing that Tsarnaev is given a fair trial .and accorded the utmost due process. The actions of the district court and the majority of this court fall short of these ideals.
Tsarnaev is entitled to a writ of mandamus ordering the district court to grant Tsarnaev’s motion for a change of venue. Because this court refuses to grant this relief, I strongly dissent.
. This section contains a brief summary of the events surrounding the bombing and subsequent manhunt. For a minute-by-minute recap of those four days, see Sara Morrison and Ellen O’Leary, Timeline of Boston Marathon Bombing Events, Boston.com (Jan. 5, 2015), http://www.boston.com/news/local/ massachusetts/2015/01/05/timeline-bostonmarathon-bombing-events/qiYJmANmó DYxqsusVqóóyK/story.html.
. Maria Cramer & Peter Schworm, Note May Offer Details on Bomb Motive, Boston Globe, May 16, 2013, http://www.bostonglobe. com/metro/2013/05/16/sources-bomb-suspectdzhokhar-tsarnaev-took-responsibility-formarathon-attacks-note-scrawled-boat/UhBOm EByeWVxGd IRAxzOtO/story.html.
. See "We got him!”: Boston Bombing Suspect Captured Alive, NBC News (Apr. 19, 2013), http://usnews.nbcnews.com/_news/ 2013/04/20/17823265-we-got-him-boston-bombing-suspect-captured-alive?lite.
. Id.
. See, e.g., Live Blog: Bombings at the Boston Marathon, http://live.boston.com/Event/ Live_blog_Explosion_in_Copley_Square? Page=0 (last visited Feb. 20, 2015); Boston Bombing Manhunt: Watch the Live Streaming Video, Inquisitir (Apr. 19, 2013), http://www. inquisitr. com/625705/boston-bombingmanhunt-watch-the-livestreaming-video/ ("Developments in this active and intense search are rapidly unfolding minute by minute. Live feeds to the local television media coverage of the Boston bombing manhunt are embedded below.”); Boston Transit Shut Down, Nearly 1 Million Sheltering in Place amid Terror Hunt, NBC News (Apr. 19, 2013), http://usnews.nbcnews.com/_news/ 2013/04/19/17822687-b ostontransit-shutdown-nearly-1-million-sheltering-in-pláceamid-terror-hunt?lite (embedding a video with the caption "Video of firefight between suspects and police”).
. See, e.g., Eric Moskowitz, Long After Marathon Blasts, Survivor Loses Leg, Boston Globe, Nov. 11, 2014, http://www.bostonglobe.com/ metro/2014/11/11/long-after-marathon-bombings-survivor-loses-leg/urutULO 5 K3 H3 3 jlOGoLiNI/story.html; Boston Marathon Bombings-One Year Later, Boston Globe, http://www.bostonglobe.com/metro/specials/ bostonmarathon-bombings-year-later (last visited Feb. 20, 2015) (detailing numerous stories about the city's recovery and the victims over the year since the marathon); Bella English & Sarah Schweitzer, Some Affected by
. Ben Zimmer, “Boston Strong,” the Phrase that Rallied a City, Boston Globe, May 12, 2013, http ://www.bostonglobe.com/ideas/ 2013/05/11/boston-strong-phrase-that-rallied-city/uNPFaI8Mv4QxsWqpjXBOQO/story.html.
. See, e.g., Twitter Chatter, UPDATE: The Man Who Shoveled the Marathon Finish Line Has Been Found, BDCwire (Jan. 28, 2015), http://www.bdcwire.com/who-shoveled-themarathon-finish-line/.
. Indeed, some even thought April 19, the day of the shelter-in-place order, was “so much scarier” than April 15, the day of the bombing itself. See Alan GreenBlatt, Boston on Lockdown: “Today Is So Much Scarier”, (Apr. 19, 2013), http://www.npr.org/blogs/ thetwo-way/ 2013/04/19/177934915/The-Scene-In-Boston-Today-Is-So-Much-Scarier (quoting a resident).
. These cases involved either Rule 21(b) of the Federal Rules of Criminal Procedure or 28 U.S.C. § 1404(a). While the present petition invokes Rule 21(a), this distinction is irrelevant. All three provisions involve a request to change venue. If mandamus is appropriate for convenience purposes, or in the civil context, it must surely be available when the change of venue is due to a prejudiced jury, where the constitutional implications are magnified. In fact, the government conceded at the hearing that if a presumption of prejudice ■was established, and the district court still refused to transfer venue, then mandamus relief would be appropriate, assuming the other mandamus factors were satisfied.
. When I refer to Boston, I am referring not only to the city of Boston but also to the surrounding neighborhoods and suburbs which make up the greater Boston metropolitan area and from which the jury pool is being drawn.
. See, e.g., The Associated Press, Marathon Bombing Aftermath Was Top Massachusetts Story of 2014, MassLive (Dec. 26, 2014), http://www.masslive.com/news/index.ssi72014/ 12/marathon_bombing_aftermath_was.html ("The legal aftermath of the Boston Marathon attacks dominated headlines in Massachusetts in 2014, much as the attack itself did last year and the accused bomber’s trial surely will in 2015.”).
. Because this is a death penalty case, each party has been allotted twenty-three peremptory challenges. Thus, to seat the twelve jurors and six alternates, sixty-four jurors need to be qualified. The district court, however, has opted to qualify more than the necessary sixty-four “to be safe.”
. The majority accuses Tsarnaev, and me, of choosing “selective quotations” which are "misleading,” ante, at 28. It also notes that its "own review of those materials shows that the district court is in fact identifying provisionally qualified jurors with no or few and, at most, attenuated claimed connections to the bombings.” ante, at 21. Yet, of the seventy-five provisionally qualified jurors, forty-two self-identified as having some connection to the events, people, and/or places at issue. And twenty-three stated in their questionnaires that they had formed the opinion that Tsarnaev is guilty; of those twenty-three, one even stated that he would be unable to set that belief aside.
. Indeed, that is precisely what one prospective juror in this case said during voir dire: "I can’t unforget what I already know.”
. The argument advanced by the government distinguishing McVeigh on the grounds that the trial had to be moved because of the damage to the courthouse is disingenuous. A simple reading of the opinion makes clear that while the courthouse was damaged, that was not the reason for the venue change. Moreover, the contention that McVeigh is different because in that case the parties agreed the trial should not occur in Oklahoma City only supports the argument that trial in Boston is inappropriate. With almost identical facts, the government and the district court judge in McVeigh acknowledged on their own accord that a trial in Oklahoma City would be fundamentally and unconstitutionally unfair.
. The only real difference between the two cases is that Tsarnaev, though a naturalized citizen, is foreign-born and may have been influenced by overseas terrorist organizations while McVeigh is often referred to as a "home-grown” terrorist. Given that distinguishing the two cases on the basis of national origin would likely be constitutionally impermissible, we must presume that the government and district court are relying on some other, unnamed distinction. However, they have failed to present another persuasive, material distinction between the two cases, and I can find none.
.The majority's contention that the Boston Strong theme is irrelevant because it "is about civic resilience and recovery” and "is not about whether petitioner is guilty or not” or whether a prospective juror "could not be fair and impartial,” ante, at 25, n. 13, is struthious. The very fact that a prospective juror needs to express "resilience” and "recovery” is eloquent evidence that he or she was affected by the events.
. The majority contends that this is a "remarkable statement” which is "completely unfounded,” ante, at 24, n. 10. But " ‘common sense should not be left at the courthouse door.’ ” District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 135 n. 3,
. The majority places too much emphasis on the fact that "95% of the dwellings in Gibson County” received the local newspapers carrying the prejudicial information, Irvin,
.Contrary to the majority’s implications, recent Supreme Court caselaw has not cast doubt on Irvin. The main case the majority relies on, Patton v. Yount,
. See, e.g., Lloyd Vries, 2nd Sniper Trial Venue Changed, CBS News (July 24, 2003), http:// www.cbsnews.com/news/2nd-sniper-trialvenue-changed/ ("The trial of sniper suspect John Allen Muhammad will be moved 200 miles from Prince William County to Virginia Beach, a judge ruled Wednesday. Circuit Judge LeRoy Millette said it 'has been clearly shown that such a change of venue is necessary to ensure a fair and impartial jury.”); Stephen Braun, Judge Changes Sniper Trial Venue, L.A. Times, July 3, 2003, http://articles. Iatimes.com/2003/jul/03/nation/na-sniper3
("Citing concerns that pretrial publicity would make it impossible to select an impartial jury, a Virginia judge Wednesday ordered the Washington-area serial sniper murder trial of Lee Boyd Malvo moved 200 miles south of the capital suburbs.”).
. The majority cites to cases involving the 1993 World Trade Center bombing to suggest that high-profile terrorism cases can be tried in the district where the crime occurred. See United States v. Yousef, No. S12 93 Cr. 180(KTD),
. See, e.g., In Matters of Justice, It’s Personal, Boston Globe, Feb. 6, 2015, https://www. bostonglobe.com/opinion/2015/02/05/mattersjustice-personal/1 HXYIwyRx22 d4Pvtxh2 S O J/ story.html (noting that a SocialSphere survey of 1000 Massachusetts residents found that 90% thought Tsarnaev was guilty or probably guilty); Shira Schoenberg, Dzhokhar Tsarnaev Trial: Judge, Lawyers Sift Through Potential Jurors’ Ties to Boston Marathon Bombing, MassLive (Jan. 16, 2015), http://www. masslive.com/news/boston/index.ssf/2015/01/ dzhokhar_tsarnaev_trial_judges.html ("Given the enormous publicity surrounding the bombings, it would be nearly impossible to find jurors who are unfamiliar with the case.”).
. See, e.g., Boston Bombings Suspect Dzhokhar Tsarnaev Left Note in Boat He Hid in, Sources Say, CBS News (May 16, 2013), http://www.cbsnews.com/news/bostonbombings-suspect-dzhokhar-tsarnaev-leftnote-in-boat-he-hid-in-sources-say/ ("B oston bombing suspect Dzhokhar Tsarnaev left a
. See, e.g., Evan Pérez, Boston Bombing Trial Lawyers Fail to Reach Plea Deal, CNN (Jan. 5, 2015), http://edition.cnn.com/2015/ 01/05/poli-tics/dzhokhar-tsarnaev-trial-plea-deal-fails/index.html ("The discussions in recent months have centered on the possibility of Tsarnaev pleading guilty and receiving a life sentence without parole.... [b]ut the talks have reached an impasse because the Justice Department has resisted removing the death penalty....").
. See, e.g., The Associated Press, Marathon Bombing Aftermath Was Top Massachusetts Story of 2014, MassLive (Dec. 26, 2014), http://www.masslive.com/news/index.ssl/2014/ 12/marathon_bombing_aftermath_was.html ("The legal aftermath of the Boston Marathon attacks dominated headlines in Massachusetts in 2014, much as the attack itself did last year....”); Timeline: Dzhokhar Tsarnaev in the Globe, Boston Globe, Dec. 24, 2014, http:// www.bostonglobe.com/2014/12/24/timelinedzhokhar-tsarnaev-globe/16 Q JTbj 8ql5 dKh NGv MuVFJ/story.html (collecting every Boston Globe news story related to Tsarnaev).
.See, e.g., Jonel Aleccia, Boston Bomb Attack Triggered PTSD in Local Kids, Study Finds, NBC (May 30, 2014), http://www.nbcnews. com/health/health-news/boston-bomb-attacktriggered-ptsd-local-kids-study-finds-nl 18856 (noting that "in addition to [PTSD], researchers detected a range of other disturbing emotional and behavioral responses in kids who felt the impact of the manhunt close to home,” and that "[e]veryone in Boston has a story of what they did during the shelter-in-place request”); Alan GreenBlatt, Boston on Lockdown: “Today Is So Much Scarier”, NPR (Apr. 19, 2013, http://www.npr.org/blogs/ thetwo-way/2013/04/19/177934915/TheScene-In-Boston-Today-Is-So-Much-Scarier.
. See, e.g., Kevin Johnson, Paris and Boston Attacks Pose Striking Parallels, USA Today, Jan. 9, 2015, http://www.usatoday.com/story/ news/nation/2015/01/08/paris-boston-attacks/ 21445461/ (commenting that “there was no escaping the striking similarities between the assault on the Paris offices of a popular satirical newspaper and the 2013 Boston Marathon bombings” and quoting Massachusetts Representative William Keating as stating that “[ajgainst the backdrop of jury selection ..., it’s like Boston is reliving what happened all over again.... I’m watching what's happening in Paris, and I’m thinking of Water-town.”).
. See, e.g., Meg Wagner & Jason Silverstein, Boston Bartender Chris Laudani Clears Snow from Boston Marathon Finish line as Massachusetts Begins Blizzard Cleanup, N.Y. Daily News, Jan. 28, 2015, http://www.nydailynews. com/news/national/boston-beginsblizzardcleanupclears-marathon-finish-line-article1.2094673.
. See, e.g., Milton J. Valencia, Tsarnaev Friend to Plead Guilty, Boston Globe, Jan. 13, 2015, http://www.bostonglobe.com/metro/ 2015/01/13/judge-sets-j an-plea-hearing-for-friend-boston-marathon-bombers/SPbRARYlk YS5XYJMrZNFcM/story.html.
. See, e.g., The Associated Press, Judge Rejects Bid to Delay Tsarnaev Trial over Paris Attacks, Boston Herald, Jan. 14, 2015, http:// www.bostonherald.com/news_opinion/local_ coverage/2015/0 l/judge_rej ects_bid_to_delay_ tsarnaev_triaLover_paris_attacks.
. At the hearing, Tsarnaev explained that all of these events occurred after the questionnaires were filled out, and while the district court has generally asked prospective jurors whether they were aware of these events, it has cut off questioning into how in-depth this knowledge is or how it has affected the prospective juror.
. Another option, which none of the parties have suggested, would be to select jurors from another jurisdiction and then bring them to the District of Massachusetts for the trial. Though this practice is very rare, it is not unheard of. See Commonwealth v. Moore, Docket No. 169, Crim. No. 2011-10023, at *3, 5 (Mass.Sup.Ct. Oct. 5, 2012) (ordering a "partial change in venue” whereby the trial would be held in Suffolk County but the jury would be "draw[n] from a Worcester County jury venire”).
. The majority misunderstands the nature of modern media coverage of high-profile criminal trials, and the distinction between prior coverage in Boston versus the rest of the country. Since the Marathon bombing, media coverage of the story has never ceased in Boston, where the story remains present and at the fore of the public's interest. On the national stage, however, in the two-year gap between the bombing and the start of jury selection, media coverage has waned and pales in comparison to local coverage. Nonetheless, given the American experience with high-profile criminal trials over the past few decades, there is every reason to expect that the national news media (including 24-hour cable channels, radio, print newspapers, social media, and internet sources) will ramp up with Tsarnaev’s trial and engage in the relentless, highly detailed, omnipresent coverage that characterized criminal trials such as those of OJ. Simpson, Casey Anthony, the Menéndez Brothers, Jeffrey Dahmer, Phil Spector, and Ted Bundy. See, e.g., Casey Anthony Murder Trial Gamers Extensive Media Coverage: Cable and Broadcast TV Coverage Draws Comparison to the Trials of OJ. Simpson and the Menúdez Brothers, L.A. Times, July 6, 2011, http://articles.latimes. com/201 l/jul/06/entertainment/la-et-casey
. See, e.g., Joe D'amore, Tsarnaev Trial Should Not Be in Boston, Gloucester Times, Feb. 9, 2015, http://www.gloucestertimes. com/opinion/letter-tsarnaev-trial-should-notbe-in-boston/article_8155d310-7ba2-5046-a9 aa-5406973c3df6.html; Thomas Farragher, Tsarnaev Trial Should Be Moved to Another Venue, Boston Globe, Feb. 7, 2015, https:// www.bostonglobe.com/metro/2015/02/06/ tsarnaev-trial-should-moved-another-venue/5 HovPmXyldTyvlXhV5VzSI/story.html ("Most potential jurors don’t think Tsarnaev is guilty. They know he’s guilty.”); Danny Cevallos, Can Tsarnaev, Hernandez, Holmes Get Fair Trials?, CNN (Jan. 29, 2015), http://www.cnn. com/2015/01/28/opinion/cevallos-major-trialspretrial-publicity/; Thaddeus Hoffmeister, The Judge Should Rethink His Decision to ■ Try Tsarnaev in Boston, N.Y. Times, Jan. 7, 2015, http://www.nytimes.com/roomfordebate/2015/ 01/07/when-a-local-jury-wont-do/the-judge-should-rethink-his-decision-to-try-tsarnaev-inboston; Richard Lind, The Judge's Decision in the Tsarnaev Case Sets a Bad Precedent, N.Y. Times, Jan. 7, 2015, http://www.nytimes.com/ roomfordebate/2015/01/07/when-a-local-jurywont-do/the-judges-decision-in-thetsarnaev-casesets-a-bad-precedent-19; Harvey Silverglate, Why the Tsarnaev Trial Should Be Moved, Delayed, Boston Globe, Jan. 2, 2015, http://www.bostonglobe.com/opinion/ 2015/01/02/why-tsarnaev-trial-shouldmoved-delayed/K2is6uVCol79w6JzDLvZYJ/story. html.
. In Matters of Justice, It's Personal, Boston Globe, Feb. 6, 2015, http://www.bpstonglobe. com/opinion/2015/02/05/matters-justice-personal/1HXYI wyRx22d4P vtxh2 S O J/story. html.
. Id.
. See, e.g., Andrew Cohen, Can Tsarnaev Get a Fair Trial in Boston? Of Course Not., Brennan Center for Justice (Jan. 9, 2015), http:// www.brennancenter.org/analysis/cantsarnaev-get-fair-trial-boston-course-not.
. It is worth noting that many other prospective jurors conveyed similar sentiments regarding the unlikely prospect of Tsarnaev receiving a fair trial. While these prospective jurors were hopefully struck for cause, their comments only further highlight the strong views in the community.
. See, e.g., Alysha Palumbo, Tsarnaev Lawyers Defend Use of Juror Quotes to Move Trial, New England Cable News (Jan. 23, 2015), http://www.necn.com/news/new-england/ Boston-Marathon-Bombing-SuspectDzhokhar-Tsarnaev-Jury-SelectionContinues-289565681.html; Pete Williams, Judge Chides Tsarnaev Lawyers for Releasing Jurors’ Comments, NBC (Jan. 22, 2015), http:// www.nbcnews.com/news/us-news/judgechides-tsarnaev-lawyersreleasing-jurorscomments-n 291636.