The Tsarnaev defense has requested a change of venue to Washington, D.C. (Chances are slim and none, imo.) However, Carmen Ortiz has taken the trouble to write a 26-page response. In light of the question posed by pbszebra, “Will Dzhokhar Tsarnaev Get a Fair Trial or Won’t He?” further discussion of the venue issue seems appropriate.

Ortiz devotes most of her 26 pages to debunking the conclusions of Dr. Edward Bronson, whose research indicates that Dzhokhar cannot get a fair trial in Massachusetts. Here are some of the main points in the prosecution motion, with my comments:

She begins by claiming “it is nearly impossible to demonstrate that a jury pool has been so contaminated by negative pretrial publicity that a court cannot lawfully attempt to seat an impartial jury using jury questionnaires and voir dire.” (However, venue changes were granted in the Oklahoma City Bombing and Beltway Sniper cases, and also in the trials of the cops in the Rodney King and Amadou Diallo cases. Without debating the facts in these various instances, surely the level of “negative pretrial publicity” in Tsarnaev is comparable to these cases.)

Ortiz cites three cases in which Dr. Bronson recommended venue changes which were denied. She claims that “Bronson was wrong” and that juries were able to decide fairly in the venues where the crimes were committed. A jury acquitted the perpetrator of the Enron fraud of a third of the charges against him. (Obviously, they convicted him of the other two-thirds.) In the W.R. Grace asbestos case, the jury fully acquitted. In a lawsuit against State Farm for denying the claims of Katrina victims, Ortiz doesn’t specify the result, but what mostly happened in those cases was that State Farm agreed to a settlement.

I don’t really see the parallels. Ortiz fails to note that these cases involved white-collar crimes. Although people were harmed and some died of illness in the asbestos case, these cases do not nearly rise to the level of drama seen in the Marathon bombing, with its violence, terrorism fears, patriotic rhetoric, and Islamophobic hysteria.

Ortiz insists: “The publicity is not nearly as emotional or ‘inflammatory’ as Mr. Bronson claims.” (That’s a matter of opinion!) She spends several pages debunking Bronson’s system of searching Boston newspapers and magazines for inflammatory coverage. If her assessment is accurate, Bronson should probably change his methods. But does that prove anything?

Common sense would suggest that Boston coverage IS prejudicial, and that people in Boston are more emotional about the Marathon bombing than are people in D.C. or anywhere else. Ortiz weakens her own arguments about the harmlessness of news coverage with this statement: “Approximately 90% [of Bostonians] believe Tsarnaev is guilty, because ‘scarcely any of those best qualified to serve as jurors will not have formed some opinion as to the merits of a widely-publicized criminal case.’ ” However, she claims that negative pretrial publicity “does not mean jurors cannot set aside their beliefs and apply the presumption of innocence. Mr. Bronson believes they won’t, but the law presumes they will.” She says that prospective jurors can be expected to be honest about their opinions during voir dire … and that a Boston jury will have the courage to resist pressure from their neighbors.

Well, I hope that she is right about this. Perhaps when choosing a jury, the defense will be able to find some of the 40% of Bostonians who do not believe Dzhokhar to be “definitely” guilty. I doubt they will be able to avoid picking some who believe he is “probably” guilty. Trial by media has done its work well.

Blithely unaware of any irony, Ortiz states: “News coverage of trials of public interest conveys to society at large how our justice system operates.” Boy, does it ever, and not in a good way! Dzhokhar has been subjected to trial by media, not only in Boston, but all over the nation.  This should NOT be allowed, imo. It should not be allowed to happen to anyone.

Next, this motion talks about the timing of news coverage. “The passage of significant time between adverse press coverage and a defendant’s trial can have a profound effect on the community and, more important, on the jury, in softening or effacing opinion.” It is true that the public, with its short attention span, has moved on to other things. But, have they moved on in Boston?

Ortiz then addresses reliability of polling samples. Her statistical arguments are similar to those used in a recent defense motion, which cited a flawed grand jury selection process. She makes a valid point about Bronson’s “failure to show that different responses in different jurisdictions reflect differing levels of exposure to prejudicial publicity, rather than just demographic differences.” It hardly needs an expert to know that a largely impoverished African-American venue, regardless of publicity, will be more skeptical of law enforcement claims than will a comfortable mostly-white area.

Laywers’ opinions and the death penalty. These comments are excerpted from articles found online:

“Alan Dershowitz believes trying to move the trial to Washington was a mistake. ‘They’re not going to get D.C. … No judge will give them a venue that is pro-defense. I think it’s a tactical blunder to ask for D.C.’ Dershowitz believes Boston jurors, while they might be more likely to convict Tsarnaev, would also be more likely to spare him the death penalty. The last execution in the state was in 1947.”

“Gerard T. Leone Jr. said that in one respect, moving Tsarnaev’s trial out of the Commonwealth may not help him. ‘Massachusetts continuously polls against the death penalty, so wouldn’t you want to draw a jury from a state that polls in that way?’ He added that Eastern Massachusetts, where jurors will be drawn if the case stays in Boston, generally has a more liberal demographic than the western part of the state.

“At the same time, Leone said, moving the trial out of Boston could have some advantages for the defense. ‘This was an extremely emotional and highly significant matter that’s particularly tied to Boston,’ he said, ‘so conventional wisdom might say that you want it anywhere other than in that backyard.’”

Frankly, if I was in this position, I’m not sure if I would choose to stay in Boston, or try to go elsewhere. The points about the death penalty may be valid.  But, polls and legal citations aside,  simple common sense says the chances of Dzhokhar getting a fair trial in Boston are not all that great.