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BOSTON – Publicity hasn't jeopardized Boston Marathon bombing suspect Dzhokhar Tsarnaev's right to an impartial jury, a federal appeals panel says, and jury selection and opening statements can proceed next week as scheduled in the city where the deadly explosions occurred almost two years ago.
The 1st U.S. Circuit Court of Appeals panel said in a 2-1 ruling Friday that U.S. District Judge George O'Toole Jr. correctly denied Tsarnaev's requests on three occasions to move the trial and that the judge acted within his discretion, especially given the "particularly unusual" timing with jury selection already underway.
"The process has been thorough and appropriately calibrated to expose bias, ignorance and prevarication," the majority said of the judge's almost daily sessions with potential jurors that began nearly two months ago.
Chief Judge Sandra Lynch and Judge Jeffrey Howard said that the ongoing jury selection process did not suggest pervasive prejudice and that it was not clear and indisputable that pretrial publicity required a change of venue. Furthermore, they said, the defense did not demonstrate irreparable harm if the trial remained in Boston.
"Any high-profile case will receive significant media attention," the majority opinion said. "Knowledge, however, does not equate to disqualifying prejudice. Distinguishing between the two is at the heart of the jury selection process."
The judges also noted that other high-profile terrorism cases such as the 1993 World Trade Center bombing and the prosecution of Zacarias Moussaoui, the man who became known as the "20th hijacker" from the Sept. 11 attacks, occurred in the district where the crimes occurred.
In his dissent, Judge Juan Torruella agreed with Tsarnaev's lawyers that intense media coverage of the case and the large number of people personally affected by the deadly attack made it impossible for him to find a fair and impartial jury in Massachusetts.
Three people were killed and more than 260 were injured when twin bombs exploded near the marathon finish line on April 15, 2013.
"If a change of venue is not required in a case like this, I cannot imagine a case where it would be," Torruella wrote. "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."
A defense attorney did not immediately respond to an email from The Associated Press seeking comment on the ruling. In arguments Feb. 19 before the appeals court, federal public defender Judith Mizner said the local jury pool is "connected to the case in many ways" and cannot be counted on to be fair and impartial.
"This attack was viewed as an attack on the marathon itself ... and an attack on the city of Boston," Mizner said.
She also argued that the trial needed to be moved to maintain public confidence in the judicial system.
Assistant U.S. Attorney William Weinreb told the appeals court that prospective jurors who have strong opinions have "unhesitatingly admitted" them, allowing the judge to rule them out as jurors.
A spokeswoman for the U.S. attorney's office declined to comment Friday on the ruling.
A jury of 12 jurors and six alternates is to be seated early next week followed by opening statements Wednesday. If the jury reaches a guilty verdict, the same panel will decide whether Tsarnaev lives or dies. The only possible punishments are life in prison without parole or the death penalty.