In re Tsarnaev

• Citation: 775 F.3d 457
• Decision Date: 03 January 2015
• Docket Number: No. 14–2362.,14–2362.
• Parties: In re Dzhokhar TSARNAEV, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

775 F.3d 457

In re Dzhokhar TSARNAEV, Petitioner.

No. 14–2362.

United States Court of Appeals, First Circuit.

Jan. 3, 2015.

OPINION TEXT STARTS HEREJudith H. Mizner, Miriam Conrad, William W. Fick, Timothy G. Watkins, MA Federal Public Defender Office, Boston, MA, David I. Bruck, Washington and Lee University, Lexington, VA, Judy Clarke, Clarke & Rice, APC, San Diego, CA, Dzhokhar Tsarnaev, FMC Devens, Ayer, MA, for Petitioner.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

JUDGMENT

We have carefully reviewed petitioner's application for a writ of mandamus. Even assuming that the district court's order denying petitioner's second motion for change of venue would be subject to review by mandamus, see In re Kouri–Perez, 134 F.3d 361 (1st Cir.1998) (unpublished per curiam), we deny the petition and hold only that petitioner has not made the extraordinary showing required to justify mandamus relief. See In re Bulger, 710 F.3d 42, 45 (1st Cir.2013) (before mandamus will issue, petitioner must satisfy burden of showing right to issuance of writ is clear and indisputable, that he has no adequate source of relief, and that equities favor issuance of the writ). Petitioner's emergency motion to stay jury selection and trial in the district court is denied.

The judges in the majority regret the incorrect statement in the dissent suggesting that this matter has been under consideration for only six hours. The petition for writ of mandamus and emergency motion to stay jury selection and trial in the district court were filed on December 31. However, counsel for petitioner provided notice in advance that the filing would be forthcoming. The court thereupon immediately began a careful and painstaking review of the publicly available filings on the district court docket. The government filed its response, and the district court issued its decision, in the midst of that ongoing review. The judges in the majority are satisfied that full consideration has been given to the issues raised by the petition, and it is clear that the petition falls far short of meeting the requirements for issuing the extraordinary writ of mandamus.

TORRUELLA, Circuit Judge.

I regret that I am unable to join my colleagues in issuing today's order in this case, which is of profound importance not only for Tsarnaev but also for the people of Boston and for all of us who cherish the guarantee of constitutional rights for all litigants before this Court. My colleagues begin their order by stating they have “carefully reviewed petitioner's application for a writ of mandamus.” Although I cannot speak for the majority on this point, due to the complexity of the issues raised, the mountains of documents and exhibits that need to be read (which the government has described as over 9,500 pages long), and the logistical difficulties we have had in receiving this evidence, I have found it impossible to read even a small part of all of this evidence, much less give it the careful consideration a case involving the death penalty deserves.

On the afternoon of New Years Eve, the district court entered an electronic order denying Tsarnaev's second motion to change venue—which had been filed a month earlier on December 1st ¹—stating simply that an explanation of its decision “will be issued shortly.” Within hours of that order, Tsarnaev filed a motion to stay the jury selection and trial, scheduled to begin on Monday, January 5, 2015, pending the disposition of the mandamus petition now being rejected by my colleagues. We afforded the government twenty-four hours to respond, and then extended this period by another two hours. It was not until yesterday afternoon, January 2, 2015, that the district court finally explained its grounds for denying the second motion for change of venue. Thus, we have had all of the relevant materials—the...