Oral Argument Recap: Tsarnaev Mandamus Litigation

For roughly 60 minutes yesterday morning, a three-judge panel of the First Circuit heard arguments as to whether Dzhokhar Tsarnaev’s death penalty trial should be moved out of Boston due to concerns that he would not be able to receive a fair and impartial trial. (Yishai recently covered the legal backdrop here; briefing can be found here and here, and here.) The question arose as a consequence of the accused Boston marathon bomber’s petition to the appellate court, for a writ of mandamus seeking an order requiring the prosecution to be transferred to another district. Tsarnaev’s defense team had filed three venue change motions with Judge George O’Toole, the district judge, who denied all three. And the pending mandamus petition is Tsnarnaev’s second---the first having been likewise denied by the appeals court a little over a month ago. I won’t venture any guess as to the case’s outcome, other than to observe---based only on the judges’ questioning yesterday---that the panel seemed split. Of the group, Judge Juan Torruella seemed the most skeptical of the government, and the most in favor of granting some relief to Tsarnaev; for her part, Chief Judge Sandra Lynch appeared to be somewhat unmoved by the defense’s bid for an extraordinary remedy prior to trial. Judge Jeffrey Howard played his cards to his chest, rarely asking any revealing questions. Thus, one judge evidently was supportive of the defendant’s position, another evidently was disinterested in it, and still another sent no signals at all about his view. It had the feel of a 2-1 result. My summary of the morning’s debate follows below.  Argument by Tsarnaev’s Attorney Judith Mizner, Tsarnaev's court-appointed attorney, takes to the podium and declares that though mandamus is an extraordinary remedy, her client’s is an extraordinary case. Mizner proceeds to describe how Boston reacted after the bombings, emphasizing that the media characterized the bombing as an attack on Boston itself as opposed to any one individual. Consider, for example, the “Boston Strong” motto that sprang up in the aftermath of the bombings; Mizner cites this to support her argument that because the attack was directed at the city whole, and people in Boston felt the bombings to be as such, Boston cannot be the right place to hold her client’s capital trial. The first question comes from Chief Judge Lynch: She desires to know whether mandamus is available at all, given the procedural posture of the case. Judge Lynch suggests that it would be better policy to wait for voir dire to conclude---as it hasn’t yet below, before Judge O’Toole---before opining on the mandamus matter. The Sixth Circuit has such a rule, observes Lynch. But Mizner counters: The First Circuit has yet to adopt any such principle. Mizner then proceeds to her marquee claim: The trial must be moved, if not merely because of the risk of a biased trial, then also because of the risk that the trial might be perceived as unfair by the wider public. The argument relies on Offutt v. United States, a Supreme Court case cited in defense papers which said, among other things, “[J]ustice must satisfy the appearance of justice.” Judge Torruella then joins the fray. His queries seem essentially undamaging, if not friendly, to Mizner’s position. First he wonders how many jurors have provisionally been selected, to which Mizner answers: 61. (It’s not quite clear, but we can basically make out Torruella’s suggestion: Opening arguments were originally slated for January 26^th ; around that time, Judge O’Toole had said that he was shooting for a jury pool of 70 eligible jurors. But here it is late February, and we still don’t have a full complement of possible jurors; the month long delay and still unfinished job of searching for qualified jurors points to the difficulty, if not the impossibility, of seating a truly impartial panel.) Judge Torruella then asks Mizner why voir dire cannot overcome any presumption there might be that the jurors are biased. Mizner gladly takes the opportunity to address this potential counterargument, responding pervasive media coverage so inflamed passions in Boston that even if the city’s prospective jurors vowed to be impartial, their pledges still could not be taken seriously. Finally, Judge Torruella asks about whether the prospective jurors were exposed to any information regarding terror attacks in Europe, to which Mizner responds that some indeed were aware of the assault on the Charlie Hebdo offices. And then Mizner’s time is done, the lawyer having saved a few minutes for rebuttal.  Judge Howard managed to query her only once, about the applicable standard of review. Argument by the Government’s Attorney Attorney William Weinreb then addresses the court on behalf of the government---oddly enough, from his chair rather than from the podium. (It seems back problems plague court and counsel: Chief Judge Lynch joked that there was no shortage of such ailments with the “federal bench either”---suggesting commonality with the seated lawyer.) Mandamus, Weinreb argues, should only be considered if the trial judge acted entirely outside of his authority. But here, Weinreb refers to Judge O’Toole’s three opinions denying the change of venue motions---all three of which, in his view, were thoughtful and well-reasoned. Mention of the standard for mandamus prompts Judge Torruella. He peppers Weinreb with questions, ones seemingly less deferential and more searching than those he put to Mizner moments earlier.  The judge begins with a broad hypothetical: “what facts would make mandamus ok?” Weinreb responds by repeating that mandamus might be appropriate when a district judge acts entirely outside of his authority. Torruella then takes a different tack: if a presumption of prejudice to Tsarnaev is warranted from the facts here, he asks, then is a district judge’s refusal to apply that presumption subject to a remedy? Weinreb dodges slightly, and starts to argue that no such presumption is due on these facts. But before he can finish, Torruella briskly cuts him off with a stern “just answer my question.” So the lawyer does, conceding that not applying the presumption when the presumption is due may indeed warrant a judicial remedy. Torruella pushes further now, asking Weinreb about what percentage of jurors he feels needs to express a pre-trial opinion as to the guilt of Tsarnaev before the presumption of prejudice should apply. The lawyer does not hold forth about his emotions. Instead there comes a long-winded excursus about how the Supreme Court has not instituted a clear-cut rule along the lines that the court has suggested---an excursus that, once again, Judge Torruella stops short, this time by stating that the attorney is dodging the question he asked. Judge Torruella then asks the following hypothetical: “what if 100 percent of the prospective jurors expressed a belief that Tsarnaev was guilty, would this warrant a presumption?” Weinreb, hesitant to concede ground, states that such a fact would be a “heavy factor” in favor of applying the presumption. But he doesn’t go so far as to say that the presumption should apply. Judge Torruella then tweaks the facts, wondering what would happen if 95 percent of the prospective jurors believed Tsarnaev to be guilty. Weinreb’s answer would be the same, he says. It turns out Torruella is going somewhere with this. Citing questionnaire results, Torruella exclaims that 95 percent of the prospective jurors have formed an opinion about the guilt of Tsarnaev. Weinreb, seemingly confused, responds that he is unsure where the judge got the 95% figure from; the attorney believes the questionnaire reflects something only that 65 percent of the jurors expressed an opinion of guilt. He offers, as an explanation, that perhaps the 95 percent may have come from a public opinion survey conducted by the defense team prior to jury selection---rather than from the questionnaires themselves. Torruella dismisses the latter possibility.  He observes that in response to the question, “[h]ave you formed an opinion that Dzhokhar Tsarnaev is guilty,” just 66 out of 1,373 prospective jurors---that is, five percent---replied “no.” This, as Judge Torruella explains, means that 95% of the prospective jurors have formed an opinion that Tsarnaev is guilty. Judge Howard interjects, seeking to clear up the confusion. The question that Judge Torruella referred to, Howard notes, separates responses into three categories: yes, no, and not sure. Though it is true that only 5 percent responded “no” to the question above, twenty-five percent also responded “not sure”.  Only by aggregating the “yes” responses with the “not sure” responses does the 95 percent figure hold up.  For his part, Weinreb proceeds to argue that a “not sure” answer does not (naturally enough) imply a degree of pre-judgment one way or the other. This brings Torruella to Weinreib’s chosen percentage of 65; is that a sufficiently high percentage to trigger a presumption of prejudice?  Weinreb emphatically responds “no”. But Judge Torruella is not yet done; he then recites some of the responses prospective jurors gave on their questionnaire: “We all know he’s guilty so quit wasting everybody’s time”; “For this case I think a public execution would be appropriate, preferably by bomb at the finish line of the marathon.” Weinreb responds that such answers are selective and out of context. Finally, Judge Torruella asks why the case isn’t analogous to Rideau v. Louisiana, where the Supreme Court reversed the defendant’s conviction because prior to his trial, a video of the defendant confessing to the crime was shown on TV stations in the small Louisiana town where the trial was being held. Weinreb replies that there was no confession here---the case is inapposite. Rebuttal by Tsarnaev’s Attorney On rebuttal, Mizner begins by stating that mandamus is due not only because of the rampant publicity surrounding the bombings, but also because of the “allegiance” Boston has to the outcome of the trial. According Mizner, this case is different than the Jeffrey Skilling case, in which change of venue was denied. Here, everyone in the city knows Tsarnaev; that’s quite unlike Houston where, despite his infamy, few Houstonians were familiar with the notorious CEO of Enron. Mizner then returns to Rideau, arguing that Tsarnaev’s case essentially reprises it. Chief Judge Lynch asks if there was a confession circulated in this case. There wasn’t, Mizner replies, while also noting that videos of Tsarnaev placing a bomb were streamed on national television. Chief Judge Lynch then asks whether those videos are a confession, to which Mizner also answers no. Chief Judge Lynch then curtly responds to Mizner’s concession with a “then move onto your next point,” her dislike of the Rideau analogy seeming rather obvious. The lawyer ends her rebuttal by emphasizing a point from before: voir dire cannot cure any presumption that a jury is prejudiced. With that, the court adjourns.