Media Frenzy Mandated Venue Shift, 1st Cir. Rules

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By Lance J. Rogers

Dec. 9 — The son of a prominent judge in Puerto Rico will get a new trial on charges he lied to federal agents because the jury pool was tainted by the intense media coverage of a related trial that had ended in conviction just weeks earlier, the U.S. Court of Appeals for the First Circuit ruled Dec. 7.

Although the decision is noteworthy because it sets up a roadmap for the First Circuit to use when weighing a similar change-of-venue issue in the pending appeal of convicted Boston Marathon bomber Dzhokhar Tsarnaev, there are significant differences between the two cases that could minimize the impact of the Casellas decision on Tsarnaev's appeal.

Indeed, the lawyer representing Pablo Casellas-Toro highlighted some of these differences during oral argument, claiming his client was in a much worse position than Tsarnaev because the federal charges in this case came on the heels of a highly publicized local conviction that was related to the federal crime.

Staged Carjacking Alleged

Perhaps the biggest distinction between the two prosecutions is the fact that Casellas's trial for making false statements to a federal officer, in violation of 18 U.S.C. § 1001(a)(2), came just three months after he had been convicted in a Puerto Rico commonwealth court of murdering his wife in a case that drew widespread media attention and speculation.

Prosecutors contended that Casellas staged a carjacking and falsely claimed that the unknown assailants stole some guns from the vehicle. One of those stolen firearms, it turned out, was later used to kill Casellas's wife.

According to the federal district court hearing the change of venue motion, reporters staked out Casellas's home, published investigation details that had been leaked and printed a variety of false rumors. A news crew even managed to broadcast the moment Casellas was arrested and given his Miranda warnings.

Casellas had become so notorious, the district court said, that “Citizens celebrated outside the courthouse and an entire stadium of people attending a baseball game erupted into cheers upon news of the guilty verdict in the commonwealth case.”

Adding to the sensational nature of the case was the fact that Casellas's father is a federal district judge in Puerto Rico and was criticized by the press for showing up at the crime scene on the morning of the murder.

The federal indictment alleged that Casellas lied to FBI agents when he claimed he had been carjacked.

Top Nielson Ratings

In an opinion by Judge Duane Benton, sitting by designation from the Eighth Circuit, the court agreed with the government's argument that voir dire typically is viewed as an effective vehicle to filter out bias, but suggested that successive state and federal trials—separated by just a matter of months—helped tip the scale in favor of a shift in venue.

“A jury may be able to disbelieve unfounded opinions of the media or other people,” the court said. “However, it may have difficulty disbelieving or forgetting the opinion of another jury, twelve fellow citizens, that a defendant is guilty in an intertwined, just-concluded case.”

The court noted that Casellas was sentenced on live television, just two months before voir dire in the federal case, and that coverage of the verdict in the murder case “received the top Nielson rating for that month.”

The court also found it significant that a change of venue would have effectively muted the impact of the Puerto Rico media because Casellas's notoriety likely was limited to the island community.

“Casellas would be relatively unknown outside Puerto Rico,” it said.

The court also noted that the government agreed that Casellas made “a prima facie showing about the pervasive nature of the coverage” of the murder case and—at least initially—didn't oppose the change of venue. Instead, it urged the court to start voir dire and “see what happens.”

Presumption of Prejudice

Under Skilling v. United States, 561 U.S. 358 (2010) (87 CrL 511, 6/30/10), the court said, judges must look to four factors when it comes to presuming prejudice: the size and characteristics of the community, the nature of the publicity, the time between the media attention and the trial, and whether the jury's decision indicated bias.

In this case, it said, all those factors favored a presumption of prejudice.

“Due to the disqualifying opinions of two-thirds of the venire and the specific knowledge of the murder conviction by nearly all jurors and the carjacking by at least two jurors, the government has not met its burden to rebut the presumption of prejudice,” the court said.

The court rejected the government's argument that the presumption was rebutted because the district judge's individual questioning and excusing of some potential jurors served as an adequate filter.

Instead of reducing concerns of bias, the court said, the voir dire actually revealed the depth of community knowledge of the case and hostility directed toward Casellas.

According to the court, 96 percent of the venire knew about the murder and the judge ended up excusing 65 percent of the potential jurors for cause.

Unknown Outside Puerto Rico

Tsarnaev's lawyers will no doubt focus on the portion of the Casellas decision laying out the avalanche of pretrial publicity and media scrutiny.

The government, on the other hand, will likely point out that Casellas involved successive trials in a confined jurisdiction, that Casellas would be virtually “unknown” if he was put on trial anywhere else and that the government offered lukewarm opposition to Casellas's motion to change venue.

Indeed, at oral argument, Casellas's lawyer, Martin G. Weinberg, Boston, may have previewed the government position when he argued that to put Tsarnaev in the same boat as Casellas, the government first would have had to try him for murder; and then two months later put him on trial for lying to ATF agents about how he acquired the parts for the homemade bombs.

A divided panel of the First Circuit has already ruled that Tsarnaev failed to show with clear and indisputable evidence that an impartial jury couldn't be chosen from the five million people who live in the Eastern Division of the District of Massachusetts (In re Tsarnaev, 780 F.3d 14, 1st Cir. 2015 (96 CrL 619, 3/11/15)).

But it is not clear that this result means Tsarnaev will lose again the second time around. For one thing, the First Circuit justified its ruling in part on the ground that Tsarnaev failed to show irreparable harm because, even if convicted, he still had the right to appeal the issue—which the court said is the more “typical route” for these kinds of challenges.

Also, it was a split panel decision. One dissenting judge—Juan R. Torruella—argued that it is “absurd” to think that Tsarnaev would get a fair trial in the Boston area given the “pervasive, prejudicial, and inflammatory” pretrial publicity. The press coverage of the bombing, the dramatic manhunt, the “shelter-in-place” order for the entire Boston area and the tense scenes of the capture were “unparalleled in American legal history,” Torruella wrote.

Judges David B. Sentelle, of the District of Columbia Circuit, and Kent A. Jordan, of the Third Circuit, both sitting by designation, joined the opinion.

The Justice Department, Washington, argued the case for the government. Weinberg argued for Casellas.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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