BOSTON — Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev asked a federal appeals court Wednesday to overturn a judge's decision to not move his upcoming trial out of state.
The request was filed with the 1st U.S. Circuit Court of Appeals hours after U.S. District Court Judge George O'Toole denied the change-of-venue request and a motion seeking a nine-month delay in the start of the trial. The defense is now asking O'Toole to stay jury selection, scheduled to begin Monday, pending the outcome of the appeal.
Tsarnaev has pleaded not guilty to federal charges connected to the April 2013 explosions at the marathon finish line, which killed three people and injured more than 260. He would face the death penalty if convicted.
The lawyers, in their appeal to the higher court, again argued Tsarnaev couldn't receive a fair trial in the Boston federal courthouse a couple of miles from where the bombing occurred. Prosecutors, they said, were likely to depict the crimes as having affected not only those killed and injured but nearly the entire greater Boston community.
"Thus, every member of the jury pool is, in effect, an actual victim of the charged offenses," the defense attorneys wrote.
As an alternative to ordering the trial moved, the lawyers suggested the appeals court order O'Toole to hold a hearing on "disputed issues of fact" and reconsider the previous change-of-venue motions.
O'Toole said in his ruling earlier Wednesday he would provide a detailed explanation for it later.
In rejecting Tsarnaev's first request in September to move the trial, O'Toole said defense lawyers had failed to show that extensive pretrial media coverage of the bombings had prejudiced the jury pool to the point an impartial jury couldn't be chosen in Boston.
The defense has compared the coverage to that in the case of Oklahoma City bomber Timothy McVeigh, whose trial was moved to Denver. McVeigh was convicted and put to death for the bombing, which killed 168 people.
Prosecutors say Dzhokhar Tsarnaev, 21, and his older brother, Tamerlan Tsarnaev, planted and detonated two pressure cooker bombs. Tamerlan died following a firefight with police several days after the bombings. Dzhokhar was captured later that day, wounded and hiding in a boat parked in a backyard in suburban Watertown.
Jury selection is expected to take several weeks because of extensive media coverage.