Tsarnaev's lawyers in the death penalty case say that many potential jurors have already voiced bias against their client or were personally affected by the 2013 bombings that killed three people and injured 260.
The U.S. 1st Circuit Court of Appeals in Boston on Thursday ordered a hearing for Feb. 19 to consider the defense’s repeated requests that it move the trial out of Boston or order the trial judge to suspend jury selection and hold a hearing on whether jurors from the local community can give the 21-year-old Tsarnaev a fair and impartial trial.
Despite the appellate court’s decision to weigh in on the case, District Judge George A. O’Toole Jr. on Thursday held his 17th day of individual juror questioning, a process that began Jan. 5 with 1,373 prospective jurors under review.
O’Toole has repeatedly denied defense requests to move the trial or hold a hearing on moving it. Tsarnaev's lawyers have suggested moving it to Springfield, Mass., New York City or Washington D.C., which government prosecutors have vigorously opposed.
The appellate court hearing on Feb. 19 will allow each side 20 minutes to argue why the trial should be held in Boston or moved away. But because the vast majority of the case remains under seal, defense lawyers and prosecutors will be prohibited from mentioning much about the merits of the case, other than the difficulties in finding 12 jurors and six alternates.
The appellate court did not, however, order the jury selection process to stop.
That process has been bogged down for weeks. Numerous potential jurors either are strongly opposed to the death penalty or indicated they have already concluded that Tsarnaev is guilty and should be put to death. Others have told how they have run in the Boston Marathon, helped treat the injured after the bombing, donated to charities to help victims and, in one case, worked with a Tsarnaev family member.
Those kinds of problems arose again Thursday. A Vietnam-era veteran, for instance, said he could not put anyone to death. “There’s been too much killing in my lifetime and I’m not prepared to participate in any more," he said.