BOSTON — A push by Boston Marathon bombing suspect Dzhokhar Tsarnaev to move his trial outside Massachusetts has led to a war of words — and paper — between his lawyers and federal prosecutors.
The two sides have filed more than 100 pages of legal briefs vehemently arguing their positions for and against the move. After the defense filed a third brief, including a 40-page affidavit from a second expert, the judge struck it from the court docket, granting a request from prosecutors who said, "Tsarnaev has decided that there should be no limits on his right to litigate it."
The stakes are huge: Tsarnaev could get the death penalty if convicted.
Prosecutors say Tsarnaev, 21, and his older brother, Tamerlan, 26, placed two homemade bombs near the finish line of the 2013 marathon. The blasts killed three people and injured more than 260.
Tsarnaev has pleaded not guilty to 30 federal charges and faces a November trial. Tamerlan Tsarnaev died in a gun battle with police several days after the bombings.
In their motion to move the trial out of state, Tsarnaev's lawyers said a survey of potential jurors showed that nearly 58 percent of Boston respondents who were aware of the case "definitely" believed Tsarnaev was guilty. Thirty-seven percent believed that, if convicted, he deserves the death penalty.
Tsarnaev's lawyers want to move the trial to Washington, D.C., where the percentage of those who believe he is definitely guilty and deserves the death penalty is much smaller.
Prosecutors insist Tsarnaev can get a fair trial in Boston. They argue that the Eastern Division of Massachusetts — where the jury pool would be drawn from — covers a diverse area with a population of over 5 million.
Attorney David Hoose, who defended a nurse facing the death penalty for killing four patients at a Massachusetts veterans hospital, said it is somewhat surprising that Judge George O'Toole Jr. agreed to strike the third brief filed by Tsarnaev's lawyers.
"Most judges — especially in capital cases — want to give the defendant every opportunity to be heard," Hoose said. "I think most people understand ... that these cases are different from everything else, and it really is not appropriate to insist on rigid compliance with the rules that have the effect of limiting what you want to say."
The defense also cites the trial of Oklahoma City bomber Timothy McVeigh, which was moved to Denver. They say the marathon bombing had an even greater emotional impact on the Boston area because of the four-day police search for the Tsarnaevs capped by a dramatic final day when thousands of residents were told to stay in their homes.
"If there's ever been a case that called for a change of venue in federal court, this is it," said Christopher Dearborn, a professor at Suffolk University Law School.
But others say judges have to set limits.
"Judges need to make decisions. They need to hold to a schedule as long as it's not compromising the ability to present a defense," said Gerry Leone, a former state and federal prosecutor.
"You can prepare forever, but at some point you have to be given a deadline and a timeline. At some point, the judge just calls it, says, 'I've got what I need. We've got to move on and keep the litigation going.'"
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