Good bye your honor, Mr. O'Toole

by Woody Box


With the full rejection of the defense's post-trial motions by judge George O'Toole on January 15, 2016, the Tsarnaev case has entered a new phase. The defense will now file an appeal and an appelate court will have to decide about the same issues.

O'Toole is no longer the master of the process, which is certainly good news for the young Chechen. With the denial to lift the SAMs and to appoint a new trial, he stayed true to his line of rubber-stamping the government's demands. This might have guaranteed him the momentary goodwill of the government, but, as matters stand, will not bode well for his place in legal history. Many observers aside from myself have pointed that out, too.

The denied motion for a new trial consists of three parts - change of venue, "Johnson", and unconstitutionality of the death penalty. The latter is only a symbolic request. The first request - to order a new trial at a different location due to a prejudiced jury - is the most obvious one, and there is a good chance that other judges will look at it differently. The defense already challenged the venue Boston one year ago with a mandamus petition. It was denied by a panel of three judges, but only with a 2-1 majority decision. Judge Juan Torruella vehemently expressed his dissent on 45 pages. He finished with these words:

But what makes both America and Boston strong is that we guarantee fundamental constitutional rights to even those who have caused us the greatest harm. Rather than convicting Tsarnaev and possibly sentencing him to death based on trial-by-media and raw emotion, we must put our emotions aside and proceed in a rational manner. This includes guaranteeing that Tsarnaev is given a fair trial and accorded the utmost due process. The actions of the district court and the majority of this court fall short of these ideals.

Tsarnaev is entitled to a writ of mandamus ordering the district court to grant Tsarnaev's motion for a change of venue. Because this court refuses to grant this relief, I strongly dissent.

Lastly, the Johnson part is a request to discard all conviction counts which include the term "crime of violence". The defense's strategy behind this rather technical judicial question is difficult to determine because some of the remaining conviction points (the non Johnson points) still bear the death penalty and have not been explicitly challenged by them. But, as I have pointed out here, the defense nevertheless has demanded an aquittal in each and every count - just that they delivered no reasoning for the non Johnson counts. Why not? Here's an explanatory approach:

With the post-trial motion for a new trial and for a judgment notwithstanding the verdict the defense was able to delay an appeal until the judge's (negative) decision on these motions. Without doing that, they would have had to file the appeal as early as 14 days after the judgment. This has been clarified at the end of Document 1490:

The defense still doesn't challenge the official narrative, neither with new evidence nor anything else. They restrain themselves to the redundant Johnson matter. By that, they force O'Toole to justify again why he's not ready to order a change of venue - before their appeal. As expected, his reasoning in this point is weak and vulnerable. So the short-term objective of the defense seems to be to achieve a new trial at a different venue, not to come out with their own evidence. They are probably still eager to win time before they put their cards on the table - maybe because they are busy with going through the government's messed pile of evidence.