Motions to Change Venue in Criminal Trials by Attorney Mark Stevens 1-603-893-0074

The motion to change venue in the trial of accused Boston Marathon Bomber Dzhokhar Tsarnaev gained recent significant attention. His second motion to change venue was denied by the trial court, Tsarnaev then appealed the decision to the First Circuit Court of Appeals for a stay (delay) in jury selection and trial in order to appeal the trial court's denial of his motion to change venue.  In a divided opinion, the Court of Appeals denied his effort to stay the trial to argue for a change of venue.

The trial court relied heavily on the case of Skilling v. United States, a case in which the United States Supreme Court affirmed the denial of a motion to change venue, and in which the Supreme Court gave factors which should be considered on motions to change venue in criminal trials: 1). the size and diversity of the pool of potential jurors from which the jury pool would be drawn; 2). the nature and type of news media coverage of the case; and 3). the amount of time that had passed between the alleged crime or crimes and the trial date. Skilling lost his motion to change venue and lost that issue on appeal.

Skilling's case, however, was not a capital murder case; it was a white collar fraud case which was part of the Enron scandal.  A closer case to Tsarnaev's is the Timothy McVeigh case in the Oklahoma bombing, in which a motion to change venue was granted: Timothy McVeigh v. United States.  The trial court in McVeigh found that the "emotional burden of the explosion and its consequences" on those who lived in the area but were personally unaffected created "so great a prejudice against [the] defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial", and granted McVeigh's motion to change venue for his capital murder trial.  His case was moved to Colorado for trial.

Tsarnaev's case presented a much stronger argument for a change of venue than McVeigh's, as the dissenting judge in the Court of Appeals opined in the order denying Tsarnaev's motion to stay jury selection until the denial of his motion could be appealed: Order of First Circuit Court of Appeals, In Re: Dzhokhar Tsarnaev v. United States, January 3, 2015. As the dissenting judge wrote, "the entire city of Boston and its surrounding areas were victimized -- as evidenced by the city's virtual lockdown and the images of SWAT team members roaming the streets and knocking door-to-door in Watertown -- is compelling ".  Nonetheless, Tsarnaev's motion to change venue was denied and his trial has begun.

Arguably, if the denial of Tsarnaev's motion to change venue is ultimately upheld on appeal, it may make it impossible or close to impossible for successful motions to change venue in the future.  Curiously though, trying Tsarnaev in Massachusetts, which is not a death penalty state, may improve his chances of having jurors, who will decide whether he lives or dies, who are not willing to vote to kill him, regardless of how heinous the crimes.

Attorney Mark Stevens
Law Offices of Mark Stevens
5 Manor Parkway
Salem, NH 03079
Admitted in Massachusetts and New Hampshire

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