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The First Circuit's Mandamus Ruling in <em>U.S. v. Tsarnaev</em>

Andy Wang
Tuesday, March 3, 2015, 4:45 PM
A couple of weeks ago I recapped the Tsarnaev mandamus oral argument. And on Friday, the First Circuit panel that heard the arguments---composed of Chief Judge Sandra Lynch, and Judges Juan Torruella and Jeffrey Howard---released a lengthy, 2-1 split opinion denying Tsarnaev’s second bid for a writ of mandamus seeking an order requiring the prosecution to be transferred to another district.

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A couple of weeks ago I recapped the Tsarnaev mandamus oral argument. And on Friday, the First Circuit panel that heard the arguments---composed of Chief Judge Sandra Lynch, and Judges Juan Torruella and Jeffrey Howard---released a lengthy, 2-1 split opinion denying Tsarnaev’s second bid for a writ of mandamus seeking an order requiring the prosecution to be transferred to another district. A summary of the 2-1 ruling, including Judge Toruella’s blistering dissent, follows below.
The Majority
The majority begins by noting that the bid for a writ of mandamus is denied because the “petitioner has not met the well-established standards for such relief.” It then proceeds to point out that “any high-profile case will receive significant media attention” and that this will result in jurors who possess knowledge about the case. But, as the majority explains, knowledge does not equate to “disqualifying prejudice,” and because of this distinction, the mere fact that most Bostonians have heard about Tsarnaev is not prejudicial.
Other high profile cases have taken place in the community where the underlying events occurred. For instance, the majority cites to the trial of Zacharias Moussaoui in the Eastern District of Virginia, which is but “minutes by car from the Pentagon.” Indeed, as the majority reasons, given the extensive media coverage in Tsarnaev’s case, there is no jurisdiction in the country that would not have been saturated with news stories. To buttress this point, the majority notes that in the defense’s preferred venue of Washington D.C., 96.5% of survey respondents have heard of the bombings. (It’s perhaps interesting to observe how the majority uses this survey result---which only shows that most people in D.C. know who Tsarnaev is---as a way to discredit D.C. as a potentially more ideal venue while at the same time arguing that knowledge does not equal prejudice).
We then move to the legal grounds for denying relief: the standard for mandamus, writes the majority, is exceptionally high. It is an “extraordinary” and “drastic” remedy requiring Tsarnaev to show not only “that the district court was manifestly wrong, but also that [his] right to relief is clear and indisputable, irreparable harm will result, and the equities favor such drastic relief.” The ruling then hammers away some more on the extraordinariness of granting mandamus; only when the “level of prejudice permeating the trial setting is so dense that a defendant cannot possibly receive an impartial trial” is Sixth Amendment implicated. Further buttressing this already stringent test is the fact that Tsarnaev’s is an interlocutory appeal---and thus subject to an “even more exacting burden” than on direct appeal.
It’s excursus on extraordinary relief telegraphs the ruling’s next portion: There the majority has no trouble in quickly rejecting Tsarnaev’s arguments that he had clear and indisputable right to relief, that there would be irreparable harm, and that the equities favor such a relief. Relying heavily on Skilling v. United States, a case in which Jeffrey Skilling, the infamous former Enron executive, failed to have his case moved out of Houston, the majority concludes that the similarities between Skilling and the instant case necessitates the same result.
“Boston, like Houston in Skilling, is a large, diverse metropolitan area” and thus the people are able to obtain their news from a vast array of sources. This point, as the majority explains, is enough to distinguish cases like Rideau v. Louisiana, where intense media coverage was concentrated in small town of only 50,000 residents. From here, the majority concludes that to presume the entire district to be too prejudicial would be a “remarkable assumption about the five million people in the Eastern Division [of the District of Massachusetts], and one much to be doubted.” In essence, the majority believes that in a town as big as Boston, it would be nearly impossible to not find at least one suitable jury.
The Dissent
Judge Juan Torruella’s 45 page dissent is, to put it mildly, blistering. Indeed, in his own words, he “vehemently dissents.” Judge Torruella begins by quoting Justice Sotomayor: “our system of justice demands trials that are fair in both appearance and fact.” Thus, Judge Torruella appears to reframe the issue as not only about the actual ability of Tsarnaev to receive a fair trial, but the public perception of whether a Boston-held trial is fair.
Judge Torruella acknowledges that mandamus is an extraordinary remedy, but, as he passionately argues, in his forty years on the bench, he is unaware of a single situation more "extraordinary" than this. He then recites facts of the case, paying special attention to how the Boston media covered it, and noting, for instance, less-than-neutral “Boston Strong” motto---which became pervasive shortly after the bombing, and persists to this day.
From this, the dissent moves to the presumption of prejudice---which, in Torruella’s view, should apply. There are two components: first, that the community must be so saturated with inflammatory publicity as to render impossible an impartial jury; and second, that so many jurors must admit to a disqualifying prejudice that the avowals of impartiality made by the remaining jurors may legitimately be called into question. Judge Torruella quickly dispenses of the first prong, on the grounds that “the pretrial publicity -- which has been pervasive, prejudicial, and inflammatory” clearly meets the threshold for saturation. As for the second, the judge lists five pages’ worth of actual responses to the jury questionnaire. The latter range from typical statements indicating a belief of Tsarnaev’s guilt, to more creative stuff. Consider this gem, cited in the dissent: “[T]hey shouldn't waste the bulits [sic] or poison; hang them.” In countering the majority’s assertion that the quotes are “selective,” Judge Torruella points out that:
of the seventy-five provisionally qualified jurors, forty-two self-identified as having some connection to the events, people, and/or places at issue 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.
The point is clear: voir dire has not worked as prejudice infects even the supposedly vetted jurors.
That argument made, the dissent shifts gears and insists that the case is nearly identical to the Timothy McVeigh case---where a change of venue was granted. As he quotes from McVeigh, “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." This, he argues, is precisely what happened in Tsarnaev’s case and precisely why Boston is not the proper venue. Of course, that the entire country is aware of who Tsarnaev is or what he allegedly did is, as the majority points out, not the ultimate question. It’s instead the nature of the media blitz that matters, in Judge Torruella’s view. The coverage of Tsarnaev in the local media has been particularly cutting, biased, and penetrating; a contrast to the national media’s coverage.
The dissent concludes on this note:
[W]hat 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 . . . . The actions of the district court and the majority of this court fall short of these ideals . . . Because this court refuses to grant this relief, I strongly dissent.

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