Changing Venue in the Marathon Bomber Case Commentary
Changing Venue in the Marathon Bomber Case
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JURIST Guest Columnist Andrew D. Leipold of the University of Illinois College of Law, discusses the First Circuit’s decision not to change venue in the Boston Marathon bombing trial…

The claim that a local jury can’t be unbiased in a case of this profile is intuitively appealing. Although Boston is a big city, the marathon is a distinctive point of pride for its citizens and while the death toll from the bombing was blessedly low, the high number of injuries, the violent manhunt that followed and the injection of fear into a community holiday could easily have scarred a lot of potential jurors.Those who doubt the impartiality of a Boston jury found a voice in Judge Torruella’s vehement dissent in the First Circuit’s most recent refusal to issue the writ of mandamus. The dissent [PDF] claims that the majority decision pave[s] the way for a trial that is fair neither in fact nor in appearance and damages the creditability of the American judicial system.

But if people were surprised by the decision they shouldn’t have been; it is very hard to get a change of venue based on a claim of prejudicial pretrial publicity. Some of the reasons are obvious: moving a big trial to a new place is terribly disruptive for the witnesses and victims who want or need to attend and judges have great faith in their own ability to pick, manage and instruct jurors to ensure impartiality. But there are other reasons why these motions are hard to win, some practical, some legal.

Information both true and false about the marathon bombing is undeniably more plentiful and easier to get than it would have been a decade ago. But that is different than concluding that prospective jurors collectively know more about pending criminal cases than they used to, or that they have learned more about the prejudicial evidence. Indeed the opposite may be true. The fragmentation of news sources means that we no longer all watch the same television shows, read the same papers or listening to the same radio stations. The Pew Research Center has found that local television watching has declined in recent years and while ten years ago more than half of the people surveyed (54%) said they read a daily newspaper, by 2012, it was 38%.

There are more sources of news besides the traditional ones including Twitter and other social media outlets. But we might wonder about the noise-to-news ratio, as well as the depth and credibility of those sources. Stated differently just because people can learn about a pending trial more easily than in the past, doesn’t mean that they are interested in doing so, or that they are more likely to come to the jury box with fixed views even if the total amount of information is increasing.

To conclude that in all of Boston a court can’t find twelve reasonable people who have no relevant clue as to what is happening in the Tsarnaev case is to imagine a breathtaking level of engagement and long term memory among its citizens. Within the last two years we all have been subject to a media barrage by people seeking elected office, yet only slightly more than one-third of us can name our own representative, and a discouraging 30% of us can’t name the sitting Vice President. Even assuming that the marathon bombing is more salient than the Vice President, it seems doubtful that two years after the fact everyone in the jury pool has been exposed to and remembers enough information about the evidence—as opposed to the bombing and manhunt itself—that the deck is presumptively stacked against the accused.

It is not hard to test this hypothesis.The next time you are in a group of otherwise engaged adults, ask how many know the details about some local crime, event or sports team. Even if everyone is aware of the issue and even if it has been exhaustively covered by the media chances are that there will be one or two who don’t know enough details to have an informed opinion, or at least have an open mind that could be changed with more information. If you can find one in your small group, a court can find 12 in a judicial district and stripped of the legal jargon that’s really all it takes to deny a motion for change of venue.

This one isn’t like the last one. Both the First Circuit decision and the most recent Supreme Court opinion on change of venue (involving a criminal trial in Houston for the former CEO of Enron), employed a similar method of analysis, at least in part. They harkened back to the Supreme Court cases where prejudicial pretrial publicity was found, compared the facts of those early decisions to the case before them and decided that the current situation doesn’t look nearly as bad as the old ones did. Thus no reason to move the trial.

Those early cases did indeed shock the conscience. Massive pretrial publicity in small communities, which had limited sources of information, reports of Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.