Sixty-one prospects have been identified as qualified to decide the capital case against Tsarnaev, Assistant U. S. Attorney William Weinreb announced at a federal appeals court hearing before a three-judge panel. The attorneys plan to pick 12 jurors and six alternates from a pool of 70.
U.S. District Judge George O'Toole has turned down three previous defense requests to move the trial. He is convinced he can find enough impartial jurors among the 1,373 people who filled out lengthy questionnaires.
To prevail at the appeals court level, the defense will have to convince two of the three judges that extraordinary circumstances are creating a hardship that is likely to cause irreparable harm. Judith Mizner, appellate chief of the federal public defender's office, suggested that the real harm might be a loss of faith in the judicial system.
Jury selection began on January 5, and has lasted far longer than anyone expected
. Court also has been closed on six days by snowstorms.
The brief hearing on arguments on the change of venue issue interrupted the morning's session of jury selection. It will be the 18th day. So far, 219 people have been questioned closely about their opinions about Tsarnaev's guilt, their feelings about the death penalty and whether they or anyone they knew was directly affected by the bombing and deadly police shootout a few days later.
The defense says it is impossible to overcome the bias against Tsarnaev in Boston. Mizner pointed to construction crews working outside the courthouse who have raised "Boston Strong" banners and painted the rallying slogan on the sides of cement mixers.
"This attack is viewed as an attack on the marathon itself and an attack on the city of Boston," Mizner said. She cited juror responses such as these:
• "Why waste time on a trial because this guy is guilty."
• "We should skip the trial and go right to the sentencing."
• "For this case, I think a public execution would be appropriate, particularly by a mom of a victim at the finish line."
But prosecutors countered that painstaking individual questioning of jurors is successfully identifying people who promise to keep an open mind and decide the case based on the evidence they hear in court.
The defense asserts that the trial should be moved because 98% of the people who filled out questionnaires either believe Tsarnaev is guilty, have a connection to the marathon or know someone who was a victim's relative, a first responder or on the staff of the hospitals that treated more than 260 maimed or injured people.
Three people, including an 8-year-old boy, died on April 15, 2013, when two pressure cooker bombs went off, just moments apart, near the marathon finish line. An MIT police officer was ambushed and shot to death days later as Tsarneav and his older brother, Tamerlan, allegedly tried to escape capture by police. Tamerlan died in the gunfight.
The three-judge appeals court said it will rule later on the venue issue.
Meanwhile, jury selection is continuing, with just nine more to be found before each side exercises 23 challenges, dismissing individual jurors without having to explain why. Those left standing will likely end up on the jury of a three- to four-month trial that could be wrenching and gruesome at times.