The federal judge in the
But defense lawyers for bombing suspect
U.S. District Judge George A. O'Toole Jr. has rejected three defense requests to move the case out of Boston and refused to give defense lawyers a hearing on the issue, spurring them to turn to a higher court.
After a more than month of searching, jury selection has gone slower than anticipated because many potential jurors in Boston have expressed anger toward Tsarnaev or say they are still grieving over the April 2013 bombing that killed three and injured more than 260.
Progress has also been slowed by a week's worth of snow days, which shut down the courthouse, and two federal holidays, including Monday's Presidents Day.
The hunt for a jury started Jan. 5, when 1,373 prospective jurors began reporting to the downtown federal courthouse to fill out questionnaires. The jurors then began meeting individually with the judge, defense lawyers and prosecutors for interviews.
In those sessions, a host of Boston-area residents said either that they were flatly opposed to the death penalty or that they have already decided Tsarnaev is guilty for the twin bombings at the marathon's finish line. Because the government is seeking the death penalty, the 12 jurors and six alternates must be open to sentencing him to death if he is convicted.
Further complicating the situation is that many other prospective jurors were disqualified for other reasons, such as making donations to victims' charities, knowing some of those who were hurt, or working in hospitals treating the injured.
The defense team has again turned to the 1st Circuit Court of Appeals in Boston. In the same courthouse on Boston Harbor where jury selection is underway, defense lawyers this week hope the higher court will intervene, perhaps ordering O'Toole to hold a hearing into the matter.
In the appellate court hearing, each side will have 20 minutes to argue their positions. The higher court probably will rule Thursday afternoon or Friday.
In January, a three-member panel at the appellate court voted 2 to 1 to turn down a request by the defense to shut down jury selection or move the trial. This time, the defense team asked the full bench of judges to hear their request.
"All members of this court will best assure the public confidence in the fairness of the proceedings," the defense team said in a legal filing.
But the appellate court on Saturday denied the request for the full bench to hear the matter. That means the same three-member panel will hear the latest request.
The defense believes the lengthy jury selection process has shown that Boston-area residents cannot set aside their prejudices and give Tsarnaev, 21, a fair trial. They cited the large outpouring of emotion in Boston, for instance, when an unknown person shoveled snow after a Jan. 28 storm to uncover the marathon finish line, seen widely as an expression of respect for the victims of the attack.
The defense has suggested moving the trial to Springfield, Mass., New York City or Washington, D.C. The government, however, is arguing that a fair jury can be impaneled in Boston.
O'Toole, meanwhile, is pushing ahead with a Boston trial.
As of late Friday, 193 people had been interviewed at the courthouse, and the judge revealed that 54 of them were suitable as jurors. He did not reveal which ones they were. He needs a pool of about 70 people to enable each side to strike 23 candidates and leave enough left over to make up the 18 jurors and alternates.
Ginny Hurley, the court's outreach coordinator for the trial, blamed weather for the delays.
"While winter storms have impeded the completion of jury voir dire [jury selection] in U.S. v. Tsarnaev, the court has been making steady progress in identifying qualified jurors," she said in statement Friday. "Barring further weather-related delays, it is anticipated that the process will be completed in the near future."
But, she said, "it is not possible yet to give a precise date when the trial proper will commence."
Another heavy snowstorm hit Boston over the weekend.