i'll outline them briefly st this case should not have been tried in boston the marathon bombings targeted a beloved and iconic civic institution a traumatized and entire community whose members together more the victims watched videos of the brothers committing these offenses sheltered in their homes behind locked doors during the manhunt celebrated  the streets and together began to heal in the boston strong movement for ny it was sentenced to death two miles from the marathon's finish line in a venue still suffering the effects of his  and falsely denied that she and her family had been locked down in their dorchester home during the shelter in place another juror number one hundred and thirty eight falsely denied discussing this case on facebook where a friend urged him to play the part sit on the jury and sensor and i have to present where he would be taken care of confronted with documentary proof of this misconduct while the jury selection was ongoing the district court took massachusetts on september th two thousand and eleven and enlisted a friend ybor him to da shift to help that evidence was reliable enough for the government to put it in a search warrant application and it was highly relevant to critical mitigating factors going to the central disputed sentencing question of brothers relative responsibility for these crimes each of these errors undermines confidence in the verdict imposing a question is not before this court any question about the proper venue for proceedings on remained whether a retrial or a retrial of the penalty phase alone and the question of the proper venue could be addressed at the time  precedent dictates that in the ordinary case the remedy is to fake it or of the conviction as well as the sentence so for example in urban and ride o the two capital cases in which the supreme court held that there's been iowa the change of venue with error the remedy was vaca position is simple we think president permits this court to vacate the convictions as well as the sentence but as judge jorge indicated in light of the concession of guilt below it would also be open to this court to limit the grant differently to the penalty and the district judge to take the case back on remand i think it would also be open to local procedures to resign but again i think that the critical point is that venue decisions are based on context factors that made boston an inappropriate venue for this trial persist the nature of the crime and the extraordinary impact of the crime on the people of this community that said we acknowledge that skilling as well as patton recognize that the analysis for example media coverage in between the conviction and the retrial and so we can start it's our view of the record is while there are factors that would continue to weigh in favor of transfer again that question is premature today i meant so is it is it your position that in our consideration and believe we're trying to figure out what is the appropriate time line for answering your you question about whether venue was appropriate in other words that we look at the record at the time the motion was filed are you saying based upon what i thought you just said that it would be appropriate us to also look at  the guilt phase and imposed six death sentences which the jurors were told would control any other sentences in the case is powerful evidence that the presumption was warranted in light of the climate trial and that's properly before  present emotionally charged case the bombings were violent acts of terrorism that targeted and traumatized an entire community they caused mass casualties there are facts were found throughout the citizens of this venue or in a real sense witnesses to these crimes as the incident video footage of the brothers on wells street they responding to law enforcement officers requests for assistance in investigating these crimes they sheltered in their homes on order of governor patrick a sign i have was a fugitive from your police commissioner paul themselves feel people and they celebrated in the streets in a moment or found civic percent in manhattan's twenty seven percent his material it seems to suggest that in this case wherever anyone heard the undisputed facts he got a certain reaction in use not only on the question of penalty and for example while the percentages were as your honor suggests comparing boston to new york boston was twice as likely as those polled in the district of columbia to favor the death penalty what's critical about criminal or improper to compare her to use when we explore what was the effects of the publicity you can't just pick the best place in the country that's true your honor and how do you explain what if we follow the correct procedures during the new selection different issue we can get to how can we show that there would be enough and then happen but not in boston with those with that data so i would say your honor that again the district court expressed doubt about the reliability of that data in denying the st motion for a change of venue so i'm not sure that that data set is appropriate but the your data was actually oftentimes prejudice is not reducible to objectively right tyria it wasn't just the data that suggests that this was an improper venue it was the extraordinary effect of this crime on this with this case six out of the twelve seated jurors admitted that they believe son i have participated in these crimes five out of the twelve seated jurors made financial contributions to the victims of these crimes four out of the twel the false information or at least information that would not normally be needed at trial because we have a situation picture two jurors runs all the publicity to learn undisputed facts very different than for example a where someone sees a staged confession of a person who's saying he's innocent we would be very concerned with there was lots of publicity of a staged confession followed to jurors would have been asked what do you know about this case and they said i saw former mayor menino say the death penalty the new target that's quite right and that's why that's why in our view patriarchal requirement that question be ask occasion that belief was mistaken we now know that to see the jurors including the four person lied under oath during voir dire jerk to eighty six dollars was asked whether she had commented on commented on this case in an online comment to a post the juror had posted twenty two dollars times about this case over the course of a year or posts expressed grief for the victims one of whom as i've indicated lived in her community  that the prejudice in this community did filter down to the actual seated jurors but if i may let me read it to the juror came out i laid out what transpired with respect to juror to eighty six this the jury selection process was going the district court summarily denied the defense's cost challenges and in derogation of what this court has called the unflagging duty to  misconduct would actually occur it was unknown whether the drummer's had actually viewed the website that contained the unfavorite material about the defendant likewise in french it was uncertain whether the undisclosed information the jurors child's criminal history would have prejudiced the jury in favor of the government or the defense here in contrast we have nondisclosure of statements of bias that couldn't be more potent we have this  obituary describing the defendant when she sentences to death as a piece of garbage we have heard experiencing what our own words tell us was the traumatic event of being separated from her family during the shelter in place and then sheltering with her children at their dorchester home those will plainly material and the point only in one direction and that's in the direction of bias it's in our view the record supports vaguer at this juncture  strong investment in the outcome of this case but the jurors could well be highly motivated to defend community it will abrogate it was clear from the grace exactly how you will taint the pretrial social capital postings of the jurors so if the record does not reflect how that happened in our motion for a cost challenge we represented that we raised challenges within days of learning triggering information i should note that our task was made more difficult by the district court's ruling denying us access to the driver social media screen so you asked a district court to have the jurors provide you with certain information that would allow you greater access to the public in guarding me against pretrial publicity introducing bias and because you actually unlike twenty years ago you could actually go and see what people were saying to friends about these things that's right and in this very would you read it in assessing that issue we should assume that the district court would use all of the proper tools available to it to screen for im failing to presume bias but rather failing to apply the tools that would guard in a highly publicized position against the introduction of bias into the jury but that's exactly right your honor once the district court in on the decision to try this case in boston it incurred an obligation to use every tool at its disposal to ensure that the manifest animus against china may have and this community did not back the actual jury and again matters were brought to the district court's attention while jury selection was on going the jury had not been selected the jurors have not been sworn this is the question i have for the government to the one downside was there for the  for hardship on the morning that were entries were exercised and the court ruled but even with that with those excuses the court still had six additional jurors above the sixty four that would be necessary so the simple answer to your honor's question is none nothing would have prevented the district court from doing that nor would anything have prevented the district court from taking the last drastic step of questioning the germs the jurors were present in this courthouse at the time the district court denied the defense's cost challenges and declined to reopen for good juror two hundred and thirty eight i think it's important to step through the chronology on him begins the day of jury selection his st day of jury selection january th by opening a facebook discussion right he geotagged the threat at this courthouse and he tells his five hundred and ninety facebook friends that he has been summoned for jury duty let me be clear about what instructions in our view that your disobeyed the court instructed the prospective jurors that they could say that they might be jurors and they could discuss the schedule with their lawyers and friends but beyond that they were not to discuss the case in any way or allow themselves to be exposed to discussions of the case in any way including on facebook so it wasn't they might be a genetic your or your in this so not one hour after receiving those instructions to draw returns to the facebook thread he describes more than the plain terms of the instruction allowed because he discusses the mechanics of the jury selection process with the public and but again the jury is being advised on how they should conduct himself during jury selection and how he should vote as a drawer that's the central event in addition is draw not only answer no untruthfully to that question he added gratuitous detail that in our view confirms his intention to mislead he said that he used facebook only for social purposes during dissembling during jury selection he was seated on the jury and he voted to sentence someone i have to doubt in the ordinary trial that course would be intolerable in cases where similar allegations of misconduct have come to light after the verdict has been returned this court has said time and again that a district judge has an unflagging obligation to investigate  repeated the rule that a district judge whacks discretion to do nothing but that's what happened to the district judge did nothing even though both jurors were present in this courthouse and  held it was improper to hold venue in the eastern district of massachusetts full stop if we agree with you on that or require a retrial for any reason i think you're saying there we can't and shouldn't decide now where then you should be including in the eastern district of massachusetts rather than remain and there would need to be a new fresh assessment district judge in the st instance that sat it certainly open to this court to highlight with the benefit of hindsight any of the factors relevant to the venue analysis that ought to be taken into consideration  really undertake the sort of research and record development that's requisite to a properly supported venue motion and that would include fresh polling fresh analysis of pretrial publicity  and i think it makes the most sense to do that in light of the facts on the ground at the time of any remember seeing but as i indicated to judge herrera d nothing prevents this court from providing guidance for the district judge whoever the anyhow that would likely control but not necessarily what would happen on remembers who were the trial or hell but if we were to hold then you was not proper in the st instance that actually would control what would happen and we may end because the change circumstances would theoretically raise the possibility that then you may not have been proper then although now it could be i think that bats i think that it works both ways to make our position crystal clear in our view venue was not proper at the time of trial should this court vacate for any reason other than an error with respect to venue and order fresh proceeding it's our view that the decision whether fresh proceedings should occur in boston should be made at the time of those proceedings this court issued guidance on that point but i agree with judge that the patriarchate plain is a sufficient  in particular did twenty six year old tamilian sinai of influence and incite his nineteen year old brother to harm or to participate in the defense submitted and the district court instructed the jury to consider several domineering personality joe hart was particularly susceptible to his influence we know this question mattered the government in its penalty phase rebuttal allocated the all of its time to the question of relative responsibility it hotly disputed that your heart was anything other than an equal participant in this crime he told the jury of the brothers had equal moral culpability and the little  case with respect to terrell owens influenced by describing him as merely bossy someone who lost his temper no different from an ordinary older brother the jurors were demonstrably concerned the question of relative responsibility as they returned life sentences all the couple counts in which cameron was physically present when the jurors did not know and what would have borne heavily on that in henri was that on september th two thousand know what we originally did was we moved we oppose the government's motion in limine bay we indicated in the course of litigating that motion in limine e that we could establish not only the commission of the crimes but to harras knowledge of the commission of the crimes and that would heighten the probative value of the evidence but once the district court ruled that the evidence of the crimes themselves could be excluded no we did not further seek to introduce  the standard of review as with all eventually questions is abuse of discretion but in our view there are reasons that deference is not warranted here first the district court made what is in essence a credibility it decided that statement was not sufficiently reliable to allow the inference that the crimes occurred in the way that he said they did but in making that ruling the district court did not review the most productive evidence of credibility and that's what recordings of the confession itself this court now has access to those recordings and there appears to be there appears to me no reason for this court to defer to a credibility assessment made from an inferior vantage point in addition the district court committed lyric error in concluding that there was no evidence from which a reasonable jury could find that the crimes had occurred who did what if anything but there was more than enough evidence for a reasonable fact finder to draw that inference indeed the search warrant application that the government submitted and obtained to search terrell's car for evidence of the waltham crimes with reference to islamic principles additional proper racial set forth the seal portion the search warrant out of patient and so in our view the conclusion that no reasonable fact finder put on the basis of that evidence determine that the crimes that occurred was a clearly erroneous assessment force it down by says the court's interest in the in the patriarch of question and so let me devote some time to that as the course aware of this important patriarch i felt that in a high profile case where there is a confirming that content questioning was the requirement that patriarchal was imposing by indicating that a fall with doing what the district court did in this case that is to say merely asking the jurors mentioned in other words it was inadmissible and relevant to the guilt and then how widespread that was in the news we have the the record of but we don't have a proportional statement for example we don't we don't have analysis that states x percent was of that of that category we have the full data set of media coverage of this case and that appears in the reply in support of the  motion to change venue there were thousands of articles in this case and as we've collected in both the opening and replied griefs many many many of these articles contained core inadmissible material the opinions of prejudicial to start the trial then a situation like this i'm not even yet and what's loading around on line you ask you ask you ask may please the court william glasser for the united states good morning good morning your honor the supreme court has made clear that a presumption of prejudice applies only in an extreme case where highly in fan flame of tory publicity so pervasive jurisdiction that a trial formality the trial in this case took place in a jurisdiction of nearly five million dollars people the publicity consisted primarily of ordinary factual news reporting and a majority of prospective jurors indicated that they did keep an open mind both with respect to mr sinai was killed and the appropriate penalty that was borne out by the jury's verdict in this case where the jury declined to impose the death penalty on eleven of the seventeen eligible counts so th sentences can be concurrent i don't think is is the relevant in florida supreme court found it very significant and skilling but the jury carefully considered the evidence acquitted on some counts and convicted on others and in this case the same way as instructed by the district  any sort of factual similarities with skilling but rather skilling presents the appropriate framework but i do think that skilling those factors and skilling are the appropriate framework and if we consider those factors they are if they support the government's view that no presumption or rose here and if i can address that the confession the interview that the f b i conducted with mr sutton i have after his arrest although the fact of that interview was reported in the media and the fact that he allegedly confessed nothing beyond that was guilt and yet a majority of the jurisdiction have been exposed to a televised interview interrogation conducted by the sheriff in that case without his consent and without the advice of counsel so the very very a presumption of prejudice would apply the supreme court has really narrowed the situations where that presumption applies and it doesn't apply simply because there have been that it is done why reporting on the facts  rather it applies when as court outlined in skilling there are various factors that come into play that make it improbable or impossible to find twelve impartial jurors within the st diction the defense's argument here is that honor yes the nature of the crime is different now one of the things about terrorism leaving the facts in this case is it impacts of a community that the whole point of terrorism that's correct your honor and the terrorism in this case i think although it was certainly targeted at the boston marathon was also part of the united states as a whole in fact we know from the statement that the defendant wrote in the bow that is purpose in committing that these crimes was to send a message t national marathon the majority about three quarters of the people who run it come from outside the state of massachusetts so it's the the impact of an attack on the boston marathon bombing is not limited to this jurisdiction and the defense points to other facts such as the shelter in place order and assumes the bat appliance to every person within the eastern division and that's simply not the case that apply to proximately one million people and if we look at the jurors who were chosen in this case only one out of the twelve was actually that bije had children him and didn't know that was disclosed your honor she she did disclose that she was from dorchester the area that was impacted by the shelter in place order i mean there was a limited disclosure grant them but it wasn't the detail disclosure that came out that the motion to strike it was it is in its proper to investigate the amount of emotional trauma that may have occurred to a particular juror as a result of the shelter in place were absolutely right about that is appropriate and i juror to eighty six is for a dark of five years she says that she was actually knocked back concerned by what was going on in downtown boston but was rather more concerned with something some explosion that took place at the same time the university of massachusetts boston which turned out to be unrelated to terrorism or any other crime and she told the district court that she was actually joking with her boss about shelter in place order saying i need to go home because were sheltering in place it's clear from the five year that she did not take the shelter in place  issue very seriously particularly at the time of trial and i think that's the necessary in worry for this court is not what her views were at the time that she often did he tweeted or read tweeted around the time of the marathon or rather whether twenty months later she was still so affected by the fact that her home although not her specifically for most of the day was within the shelter in place order that that beat was the necessary and where he was not whether at the time she felt any particular emotion about it but whether twenty months later at the investigate but the nature of the investigation is left to the district court's discretion and by the way is there any here yet your honor yes on the record the district court said it that he had reviewed the party submissions which included obviously all of these tweets face postings and have reviewed the transcripts and noted that he had sat through and had a face to face while here with these jurors and indicated that none of the issues raised seem to suggest the presence of a bias that would be harmful to jury impartiality in this case so believe they were in it i'm not sure if that was the day of parameterise or the day before but one thing i think for contacts that big can be helpful here is that the defense did not move to strike just these two jurors for rather move to strike seven previously provisionally qualified perspective jurors and those motions to strike came in on a friday when the parties were expected to use their parameterise the following tuesday and if the court had granted all the parties motions to strike it would've gone below the sixty four further inquiry and in fact did not go to issues of bias that would prevent them from seating an impartial jury he seemed you seem to be getting away from the facts as i understand exact back in her questionnaire no indication of lock assess what is the emotional impact on that perspective or the lockdown and she handles it that way you then find out that she at the time sent an e mail saying it's worse having to work knowing your family locked down at home exclamation point exclamation point finally home lockdown with them boston that's a whole different emotional outlook towards the lock down by a of that too who's sitting right in the building that i understand that yes your honor so again those statements the vagaries of the jurors tweet about how she was at home walked down with her family again it took place twenty months before void beer in this case sure folks who've got a possible explanation that would be innocent sure and it had she been questioned she might have come in and said your honor i'm sorry i've forgotten the time we wished i was a little more excited then but it obviously didn't stick with me and the judge might find that credible and he would have been done precisely what our analysis that is but i don't think donal's this could say well she might have a good explanation thought i'm not going to ask her so your honor i don't think that the important question here is what explanation she might give for why she wrote in a on that question i think the important question is whether or not there was anything to the district court's mind to raise a concern about her impartiality in this case ruling on these motions the district court went back and looked at the transcripts of that in person brought here and concluded that nothing that was in the disclosures in these defense submissions suggested a bias that would undermine the the sworn statements of that prospective juror that you're hearing her voice here that she could actually have an open mind with respect to guilt and punishment and i think just to clarify the defense has created this picture of both her to eighty six and here she actually clarified and said i mistakenly wrote my questionnaire that i bought that the teacher at the concert in fact i bought it in preparation for the concert i later remember so this was not these were not the actions of a juror that you who's trying to line to away on to the jury and if you look similarly a jury one thirty eight dollars there are plenty of indications that he was being forthcoming he disclosed conversations that it had with family members at thanksgiving about this case that they considered him walking to get on it and there's also sensitive matters that are within the seal filings in this case showing that he disclosed information that he might possibly believe would have kept him off the jury room bite racial presumption of a possible presumption of prejudice that judge reached the conclusion that the appropriate venue in that case was not not a part of oklahoma but was rather rather the case should be moved to denver there the parties agree that the trial should not play take place in the western district of oklahoma where the courthouse itself had been damaged and the city was literally rebuilding after the bombing but as the majority in the mandamus case noted and noted in this in this case the district could be held in oklahoma they're all your honor that was the yes that was the basis of the biggest reports ruling in the mcveigh case but again it's an abuse of discretion standard or whether or not been you should be moved so that's a discretionary decision on the last even those on a constitutional basis well how about some of the things that took place here for example the  case which is what involved something that was widely reported within puerto rico not outside of puerto rico in that case the televised sentencing of his wife's murder took place one month before the federal trial on false statement counts that were themselves based on his statements related to his wife's death so that in that case that was much more similar to rid o and the defense hasn't even really rely about much on that case because it's many of them indicated that they don't pay that much attention to the news and that they would not be influenced by any opinions they may have formed and in fact many of them indicated they had not yet formed an opinion at all with respect to the defendant's guilt so this is tremendous amount of publicity here yes your honor and there was some risk that you could end up having an unfair jury a biased or actually there was a risk so we had for over fifty years on the books government said don't ask it jump ship and so don't ask it and we don't have any compliance with pak we are how do you respond to that so there are a few responses around i think i'll get to the validity of a patriarchal in just a minute but st of all i do want to clear what they mean by kind and and it's the content brick and in a sense what they're trying to do with it they're saying there's a ton of publicity out there we want to know what is in that publicity what thought was for constitutional decision and didn't did not make clear that it was announcing a rule that was non constitutional under the supervisory powers and again although it indicated that if in the opinion of the court it is the court should indicated that  report should proceed to this type of examination as was pointed out there was an examination in this case sort of in more general terms about already that there be are no jacketing to its failure to include these types of questions or more generally the vibe you're failing to include such a questions that was already set in stone at the time the mandamus panel decided to skate of it the case and furthermore  important inquiry here is that again at the end of the day it's not exactly what the jurors have heard or seen or rather whether they can set aside what they have heard or seen and decide the case based on the evidence presented before them and that they're going to spend to the issue ju bottom absolutely that big district court cannot delegate his decision making to the jurors and i think i review of the questionnaire and the vibe here in this case would not indicate any abdication of responsibility in fact the jurors about the case and was able to ask those sort of important follow up questions but it's it's not clear particularly in a case in this this type of case where the reporting is is so broad that over the course of nearly two years it's not the case that the binding rule and particularly not one requiring the granularity that the defense suggest the defense did propose one question to ask the jurors to actually list everything that they had better heard about the case and then also asked as you point out the following question what stands out in your mind about the reporting but again the point here in this case was carefully designed and the question of your own for over those two questions by the way your honor of the district court exercising its broad discretion concluded that the st question would generate far too much information particularly the questionnaire states that trying to ask the jurors to recall everything that they had read or seen or heard about this case would be too much and the district court also concluded that it wouldn't really be helpful getting out to be the key question knowing everything th focused specifically on the inadmissibility of the evidence so admissible evidence could be highly inflammatory but i think it be a very unusual case because the key inquiry is whether there's an unfair prejudice not whether it's there's there's some sort of you know just general knowledge about the case the supreme court in irving versus dowd which was one of the the st actual prejudiced cases specifically made the point that in almost any high profile case nearly scarcely any of those best qualified to as jurors were not a form some impression pinion as to the merits of case so i think the important inquiries to look at was this the kind of evidence that was just highly inflammatory and there was no reasonable belief was either opinions expressed by public figures and public officials who were opposed to the death penalty and the polling data that was reported in the press indicated that a majority of those within the state of massachusetts believe the death penalty was inappropriate for that if and in this case and in fact that seems to be for reflected in the veneer itself where the majority sixty four percent indicated that they were unsure whether it should receive the death penalty or concluded that he hadn't received the penalty if you bring in those who were unable to cite a cyber anti god penalty views it actually goes up to seventy five percent so whatever whatever impact public statements like that might have had my having some cases they don't seem to have had every possible question from the defense during voir dire but the supreme court has over and over emphasize the broad discretion the district courts enjoy when it comes to voice your particularly as it relates to pretrial publicity and i think that openness in the death penalty cases  concluded that the th amendment requires some sort of higher standard for jury impartiality than the th amendment and due process and bish there's simply nothing no at authority that the defense can point to to support that eight if anyone in this sources yes and then if any question were all of the cd as were half the content but what did they understand no your honor they were not asked specific content questions of what what did you hear certainly hasn't but i think that it's a strong it's a strong reason to question one of the world's patriarchate to the extent it announced a supervisory role would have announced the supervisory role based on those a d f standards of the time where of course you needed to know about the details because here in this case was very thorough and carefully calibrated to determine whether jurors could set aside the bias any bias that they might have that they might have and i think that is the key question and if it all again although th didn't go into the specific questions about what specifically have you seen or heard in this case which certainly could have done and perhaps this court believes would be would have been the best way to apply patriarchate but it is your core did not abuse its discretion by primarily focusing i questions on the questionnaire and it was something that it deserves if it were repeatedly asked about and i think if you do the extent big concern here is about this particular jury again we saw for that our brief many statements by these particular jersey indicating that they give a very little regard to what was printed in the press so even if they had been able to detail for the district court what they might have seen or heard they indicated to true to a person that they didn't that they did not pay much attention to what was reported in the inquiry and again i think that's because the the inquiry the important inquiry is not what exactly they've been exposed to but rather whether they can set aside anything they have been exposed to and that is clearly consistent with the supreme court's view in which was a capital case so i think to the extent the court were inclined to to to clarify or announce a better extension of patriarchic in capital cases i think it would be inappropriate to focus primarily or solely on the details of the exposure because that's not the ultimate inquiry certainly for constitutional purposes and i've seen nothing in this court's precedent indicating but that's the ultimate and worry for supervisory purposes as well i mean going that the presumption if we were if we were to make that determination at that time of trial the district court appropriately decided the issue that it should be no presumption of prejudice if we decided to remain for some other reason do you agree or disagree  of whether at the time of the new trial that would be an appropriate inquiry your honor yes i think it would be inappropriate for if this were a man for some other reason and that would be something for that primarily for the district court to determine i don't think this court could make a defense did not ever ask to to use information about certain items of knowledge the knowledge about his brother they never asked to admit that when the government moved in lemonade to exclude evidence of the wall from murderous they never even mentioned his friend discovered by apps proffer in their response to the government's motion eliminate the one time that they did mention it was in one of their motions to compel discovery when they were seeking access to these additional reports and recordings that have now been  fully and it over to to a public counsel so they never asked for that sort of narrow knowledge evidence which the government would not oppose the government's indicated a lot of that if you actually believe that the key inquiry was whether or not he knew and if somehow affected the defendant state of mind in this case that his brother had it was allegedly involved in these unrelated murders but that's not what they asked for they asked to introduce broad ranging evidence showing  committed those murders and was found and when the government moved to exclude that evidence they did not try to narrow the evidence that they sought to admit and that for the reasons we explained in our brief it's too great a leap to conclude that all this florida because the risk of confusing the jurors and the reason is there was overwhelming evidence that the defendant engaged in the crimes in this case voluntarily he was more than willing to guess is that the government's position their position w jury in a situation like this that's a mitigating factor in that and the jury should be allowed to make that decision as to whether there's any credence to it well your honor yes that's certainly their position but again the federal  very briefly in dr a lot of the testimony but more broadly about the global jihad movement which is highly relevant to explain the motivation for the crime in this case so he primarily discussed all kind of which indisputably was provided the motive for mr sinai of crimes in fact the bombs that they created were drawn specifically from the inspire magazine that al qaeda published he made passing reference to isis in talking about the sort of the most recent iterations of the global jihad movement i would push back a little bit about against the defenses characterization that isis didn't exist at the time of the bombings it it's hard to kind of put a start date on these various movements within the global jihad movement but i think the primary question here is whether or not there was some sort of terrible prejudice by indicating that this global jihad movement has evolved into isis which unquestionably is is a violent terrorist organization when there was overwhelming evidence that the defendant was terrorist hero and there's there's overwhelming evidence indicating that he wasn't motivated by that goal and it said this is how the defendant saw his crimes and played that which would be there was evidence that initiated i was part of the supportable inspiration for terrorists play the machine displayed some pictures for example of a one of the pages from the inspire magazine where they drew the instructions for building a bomb and then moved to pictures of the aftermath of a bombing s but this is the cold reality of what is a crime is left behind so the purpose of using the machine was to show that he had this vision of being a terrorist hero of being at the hottest but left behind that cold reality and the defense argues that it was a blatant appeal to religious or ethnic prejudice but i think it's important to note that the new sheet was not simply a religious a recording it was in fact a jihad us recording if you that if the cour has the information from the computer the exhibits from the computer have been submitted to the court you can watch some of the videos that were attached to this war on machine and then the words go on again it was just that one word straight while bar stranger that was  played in the but then she goes on to talk about waging jihad the video that goes way back machine shows small children armed with assault rifles so this was not just a sort of religious recording but was rather  just recording and dr levitt again the expert we mentioned earlier testified that these machines were extremely effective as motivation and inspiration for terrorists abroad so  in the room that mr stein i have used when he stated his brother's house and there was evidence that he already e mails on that computer so the defense did not object to that the admission of all these computer exhibits that contained initiated there was another cd of machine that the testimony shows the defendants actually went back and retrieved from the car when they had already carjacked dunning's so they actually cared so much about these machines but the women had to get them to play on in their car so it's clear that machines in general were highly relevant and the prosecutor selected one here that repeated a single word that had already been translated in trial world war a bomb which means stranger and in fact that was the name that the defendant had adopted for his  and even explained the meaning of that phrase in his twitter account this was again admitted in evidence where he said why are bombing stranger and we as muslims should stand out in the west so although there's no indication that he necessarily had played this the penalty phase closing which triggered the penalty phase determination which took place weeks subsequently and at that time all of the jurors not only were instructed that they could not consider religious and ethnic private prejudice but in fact a certified that they had not considered religious and ethnic prejudice so he can show that there was prejudice in this case even to the extent he did show that it was improper for the just for the prosecutor to use that machine during the power point presentation it and again for the reasons that we've explained in our brief the the claim of prejudice here is not from the display of the photo of the defense of the defendant raising his middle finger in fact they suggest the defense suggests in a reply that if it had been somewhere else in the court room that display would have been ok they only claim prejudice and prosecutorial misconduct with respect to the juxtaposition of that photo between photos of the victims arguing that the government make any arguments with respect to the way that they were specifically displayed but sad that the photograph of him raising his middle finger at the security camera showed that even after he'd been called into this courthouse that he said was done i think you're limiting you showing a opening argument that he was giving the finger to a security camera and the defense of the opportunity to fully explain the contacts and in fact elicited a testimony that he apologized to a deputy u s marshal afterward so he could better ensure that the defendant himself extent it shows some sort of disrespect or disregard for his victims but the casual flipping off of another person which i've unfortunately happens by frequently in other contacts is not nearly as prejudicial as and it pales in comparison to the other inflammatory but your honor the this was again this was in the penalty phase of opening the government to clear the use of these posters with the district court before him and this is under the rubric of prosecutorial tutorial misconduct it would be highly unusual for this or define prosecutor correctly determined that fifty years ago patriarch set forth a rule requiring content question this court has correctly interpreted patriarch to announce supervisory rule  unaffected by the constitutional holding in movement indeed one of the other circuits that had a patriarchal rule prior to room to move in the th circuit reaffirmed that rule on supervisory grounds subsequent to moving and that's  requires for just the reason that identified that without asking the drawers what precisely they have seen but judge cannot make an independent assessment of impartiality otherwise the judge in effect social media and the jurors exposure to social media immersed them to all manner of opinion and fact and suggestion and innuendo about this case it wasn't only that the jurors were reading the boston globe were hearing from their family members their friends from complete strangers on twitter on facebook on instagram and on any other medium in which they participated facts about the case and beliefs about certain  patriarchal rule of anything is more important today when the sources of pretrial publicity are have multiplied and are less checked by for example journalistic standards although some opinions ple content questioning and that was denied to the government has also conceded that it is impermissible for the district judge to delegate to the juror b assessment of her own impartiality and the government impartiality inquiry was satisfied in this case because the jurors were asked whether they could set aside whatever they had heard that's not satisfactory vest this court's decision invest makes plain if that defect in that procedure is exactly what the government has conceded cannot be done the juror cannot self assess her own impartiality that is the duty of the district judge and in a case of this nature where the publi has been as the government told us tremendous word contained a wealth of inadmissible material constitutionally inadmissible material including the opinions of powerful and persuasive public figures elected on an  judge payout to let me clarify the district court ruled on these motions on the day of peremptory strikes the jurors were physically present in the court house because the parties were about to exercise their rectory strikes nothing prevented the district court from asking additional voir dire questions it's true the defense had at that point seven dollars cost challenges pending but contrary to the government under the most straightforward application of the contemporaneous objection rule they were lodged before the jury was selected nd the defense did exercise diligence i think that's dictated by the supreme court's decision in williams versus addition by this court's decision in french in which the motion for a new trial was made one month after the defense learned of the potential basis for the motion and this court said that that was sufficient diligence the defense was engaged in trial preparation for deer discovery review the litigation of multiple substantive motions and it asked for the tools to make the inquiry easier the screen names that had been turned down and still moved within days of finding the information and before the jury was selected this court is a forum for cause dismissals and as required inquiry when bias is raised trial i do your honor in our prior brief we cite the government's appellate brief in french which made the same point the government defended the inquiry in that case on just this ground that the district judge prior to ruling on the new trial motion had re read the voir dire transcripts and the moving papers french help that inquiry was inadequate and we know it's inadequate because it doesn't go to the new evidence of bias at the defense's motions brought to light the judge was not capable of ascertaining the effect of the shelter in place on the juror because he did not have her contemporaneous tweet he was not capable of ascertaining the effect of the piece of garbage tweet on her state of mind because she hadn't been asked so yes we agree that the inquiry was inadequate under french to us without evidence of the crimes themselves that statement would have been mean less it would've been meaningless to tell a jury that temple in that was involved in the murders and was and had committed jihad in waltham unless the jury knew let me finally turn to the venue question and make a few points judge thompson on the on the skilling question the you are quite right the th scaling factor weighs heavily in our favor here the government distinguishes or the government indicates that  and there's no evidence george would have had any idea that by acquitting skilling on a rd of the counts charge it would not have affected his bottom line sentence in contrast here the jury was explicitly instructed that any death sentence would override any other sentence so you're right the jury knew exactly what it was doing to take a step back this court has obviously grasped the unique impact of this crime on this community this court understands that the bombings targeted an entire city and city and attacked a beloved local and regional institution all the members of this community were affected in some way whether they were present knew someone who was present cared for the victims participated in a crowd sourced investigation of these crimes observe video of the brothers carrying out these crimes sheltered in place celebrated in the streets after sinai and was captured donated money to the one fund or participated in a collective catharsis and movement of unity that is no different from the oklahoma family church toria the boston strong movement having elected to try to scase in this damaged community it was incumbent on the district court to take every possible precaution to ensure that the extraordinary experience of this community suffered did not build or its way into the jury and prejudiced we  are static the effect of the crime on this community will not change the loss is rippling through this community will not change what the community went through in a time following the the court's purview to highlight as bearing on the venue question in any subsequent proceeding we do agree at the bottom line that the venue decision is best made on the which i'm sure the more sure it it seems to say that the more heinous a crime is with hands the more likely it is to generate publicity and strong feelings seriously harm people then the less likely city to allow the trial to be in a place that's convenient for the witnesses and victims to get to see justice done but the question is not just the heinousness of the crime the question is the impact of the crime on the community for example there is currently pending in the southern district of new york a terrorism prosecution in united states versus side of also a terrorist attack one that took eight lives in which a change of venue has not been  that crime was heinous but it did not did not preclude trial in that venue and it's because of the experience of this venue this crime and the aftermath of this crime that necessitated the venue