Defense attorneys for alleged Boston Marathon Bomber, Dzhokhar Tsarnaev, on Thursday filed new information under seal to bolster their request before the US Appeals Court to move the trial out of Boston.  The defense team also moved to dismiss the 30-count indictment against Tsarnaev and cited the absence of racial diversity of the jury pool and the way it was selected.

Andy Thibault has sat in courtroom number 6 from the start to the finish of one-on-one juror questioning,  which began five weeks ago.  He’s taken meticulous notes and one observation stands out above all others he says.

“The most striking observation is that there have been so few people of color.  So that whenever there is a person of color called during voir dire there is a great flutter of Twitter activity.” 

Thibault, a legal writer and researcher,  is the author of “More Cool Justice”

“I would estimate that there have been fewer than six black, dark skinned people” 

1,373 prospective jurors showed up for duty the week of January 5th.   

Dozens were qualified to move to the next stage, voir dire.  But the defense –in their latest motion to dismiss charges against Tsarnaev— say that a quarter of eligible African Americans were missing from what is called the Qualified Jury Wheel and were never called for voir dire questioning.  The result has been striking says Thibault.  

“Well just on the element of people of color, you probably wouldn’t get fewer unless you went to Scandinavia or something.”   

Underlying the motions to dismiss charges in US District Court and for legal arguments before the US Court of Appeals is concern that finding a fair jury in the city where the bombing took place is not possible.  Those concerns were spelled out in the latest motion by Tsarnaev’s defense attorneys to dismiss charges against their client. 

In this most recent complaint they state that the order of jurors who were questioned one-by-one by Judge O’Toole was not random and had “non-neutral effects on cognizable groups”.  In other words young people and people of color were under-represented during voir dire. The consequence says Harvard Law school professor Charles Ogletree is significant. 

“I used the first ten years of my career as a public defender picking juries, making sure that it was a diverse jury.  Even in Washington DC we had to make sure that we had the right people on that jury, and my sense is it’s the thing that makes everybody equal.  So you should have black and brown, women and men on the jury.  And when they’re not selected that becomes a big problem and I think the system has to do something about it and I’m a little worried.  Actually, I’m a lot worried about what’s happening here in Massachusetts in this case.”

In an interview driving from the airport, Ogletree said the change of venue request to the US Court of Appeals is predicated in part on the desire to present evidence before a more racially integrated jury.  And New York City, he said, would likely be better than Eastern Massachusetts in trying to accomplish that goal.    

“I think New York would have been very helpful cause it’s a very diverse group of people and New York is full of immigrants; people who haven’t  made up their minds on a host of issues; people who would be happy to serve on juries because there are no restrictions on them because they’re immigrants.  I think that would have made a big difference. Here in Massachusetts, other places would have made sense as well.  But then again you have to make sure.  Are you going to get the same number and amount of diversity where ever you might go in Massachusetts or wherever you might go around the country?

The emphasis on African-Americans and other people of color, according to various Pew polls, also has much to do with the statistical evidence that they are less prone to support the death penalty.  And some also conclude that pro death-penalty jurors are essentially  a pro-prosecution panel.

But former US attorney Donald Stern in a recent interview with WGBH News says a fair trial in Boston is possible for Dzhokhar Tsarnaev.  

“At the end of the day we’re talking about finding 12 jurors and six alternates among six million people in Eastern Massachusetts. “

Meanwhile,  Judge O’Toole is still preparing for a trial for Wednesday March 4th even as he weighs the second motion for dismissal and as the US Appeals Court prepares to issue a decision any day now on the change of venue request.