By Noah Feldman
Can Dzhokhar Tsarnaev, the surviving Boston Marathon bombing suspect, get a fair trial in the Hub?
In 1944, the Federal Rules of Criminal Procedure were amended to allow for a change of venue, if local prejudice would make an impartial trial impossible.
And it wasn't until the 1960s when the Warren court announced that the Sixth Amendment right to an impartial jury could trump the Sixth Amendment's demand of a trial in the district where the crime occurred.
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To hold that fairness demanded ignorance, not knowledge, amounted to a near-total reversal of the old jury norms. Historically, the local jurors were thought to already have a good sense of the crime and its circumstances. Now, too much knowledge could be deemed prejudicial. But the shift reflected the broader transformation of the jury from informed insiders to quasi-judicial decision makers.
The Boston Marathon bombing poses a new challenge. It's not just that many and maybe most Bostonians know one or more of the thousands of people who ran in the marathon and were targets of the attack. (I certainly do.) The search for the bombers actually shut down the city and several suburbs after they killed a police officer for the Massachusetts Institute of Technology and exchanged fire with Watertown police.
Having been in lockdown, with the sound of Black Hawk helicopters overhead and the children barred even from the backyard, was an experience not easily forgotten. And it affected hundreds of thousands of people who might be in the jury pool.
Deepening the problem of a fair trial is the collective response to the bombings. The "Boston Strong" campaign, which featured everyone from then-Mayor Thomas Menino to the redoubtable Red Sox slugger David Ortiz (the latter more popular even than the former) united greater Boston like no other public outpouring in my lifetime.
To have been unmoved by this response — in a city notorious for its balkanized neighborhoods and legacy of racism — you would have to have been living in a hole.
The upshot is that, if we took the idea of a fair trial seriously, the trial really should be moved to Washington, as Tsarnaev's lawyers requested. The terrorists targeted the symbol of the marathon to affect the whole city of Boston -- and they did. I have trouble believing that there are 12 truly impartial Bostonians out there to try the surviving bomber.
In reality, however, it was highly unlikely that the trial would be moved. Courts almost never grant a change of venue. The Supreme Court requires a "totality of the circumstances" test in which careful juror screening can counteract any presumption of general bias. There's little doubt the Boston court will be extremely conscientious to avoid a successful appeal. This will effectively avoid what the court calls a "circus atmosphere" that can warrant a change in venue.
The justices of the 1960s might not like this result. But the Framers would understand it implicitly. The Boston Marathon attackers may have acted from global motives. But they were local criminals and committed a local crime — and so there is poetic justice in a local trial. Here's hoping Boston Strong can also be Boston Fair.
Noah Feldman is a professor of constitutional and international law at Harvard University.