affiliations expressions of solidarity through which many were injured there was a shelter in place lockdown in seven communities suspension of public transit during the search for the perpetrator this attack was viewed as an attack on the marathon itself and the event to which many people have connections and an attack on the city of boston which is illustrated by the widespread boston strong reaction that began shortly after and the transfer from an individual back and forth between massachusetts and the soda and a footnote in one of the ecker cases this court suggested that the government should the site mandamus if it had an objection to one of the transfers and i think this really is required here for the same reason that it was required in badger justice hester you have the appearance of justice and there's a need to secure public confidence through for change of venue in question voter that is to say if there is not changed now if there is a trial and if there is a conviction  it's a little difficult to see what beat the rap republican injury is to the petitioner or so the government argues yes but then alter this court also said we don't have to even look at whether additional publicity in exposure but the main reason for reviewing it at this point in time would be the public confidence in the judicial system and the public perception in terms granting of a motion to transfer a criminal or civil case maybe challenge by mandamus well the government has cited cases to the contrary it's not a one sided question  can i ask you one more question about the standard of review you you've acknowledged that there has to be clear entitlement to relief and we look at whether there is a reparable harm the government says here there is sort of a two level layer of relief review having to do with abuse of discretion because there's a the request was under twenty one a i can't find in your papers what you think whether you think that's accurate you know accurate you have a position on that well i agree that this court has said that motions that the denial of motions for change of venue are reviewed for abuse of discretion but when there is a clear abuse of discretion as we maintain there is here i suggest that that rises to the level of clear entitle me to relief that where it is clear that the district court has abused its discretion then we're entitled to relief because this is for a finish it's not a routine trial management issue like setting the hours of the going to go out for lunch these are the change of venue in this case is it's at the heart of the sixth amendment sixth amendment requires a trial by an has been a challenge to any professionally qualified juror and in addition to not based on your allegations that there's a presumption of prejudice yes then you should have been changed then you should have been granted and there's a presumption of you even though they may be acting in the utmost of good faith when you're talking about the kind of saturation that has occurred here any six degrees of connections that have been expressed  questionnaires that this court has access to and the one juror that may not know at this point in time what is going to impact that person when the when trial evidence explanation of why winning is not appropriate and why reviewing the void here will not yet at whether people who have been exposed to this kind of dressing potential prejudice where it has been yes expensive and so pervasive the city in this case has not simply been factual report of the emotional connection might be the the picture of the man shuffling off the finish line at the marathon recently shuffling off the snow been sporadic and erratic there's been some questioning as to whether jurors had seen publicity anything about events in europe and some people said they had others had not but it was not focused or consistent and the jury has been instructed the potential jurors have been instructed not to watch the publicity  watch any news and i'm sorry i don't understand me not consistent john that you have the opportunity to ask whether they are aware of recent events france or europe and if you chose not to ask question has been cut off in terms of content i bet that's a different question isn't it question well some have said that they have the opportunity to ask that question of what has your asking yeah i asked ok the court has been also cutting off efforts to get at what has been called the schooling question what is the content of what you have been exposed to so which makes it somewhat difficult to get a good handle on whether someone is been exposed to something that will present them with with bias was that question that you're now referring to a matter of negotiation before the jury questionnaires answer the question questions that the defense requested that were kept out upon government objection and questions that were included at the government's request over the defense objection so it was not and agreed to questionnaire and that question was not included by the court in the questionnaire and over your objection yes in the question yes thank  refused to carry out the duty that the law commands him to carry out that is not the situation in this case the district court judge in this case has written three very thoughtful opinions explaining his reasons for his discretionary decision not to transfer venue to another district in those opinions he's made it clear that he has reviewed all of the evidence in the court and voluminous record that the defense has prepared below that he has read all the p cases that he understands the law and that is need a reasoned decision based on the facts on the law under those circumstances there is simply no grounds for  abdicated his responsibility to exercise his discretion in this case and you know then that would presuppose that even a decision could ever be reviewed on mandamus which is something this court has never decided and need not decide in this case  if you're asking a merits of the decision and whether there's anything on the merits that would make this an appropriate case for a change of venue i think that the answer can be found in the supreme court's cases in particular the three district court had found that there was a presumption of prejudice that he wouldn't necessarily be sitting by his jersey regardless of how thorough and careful the questionnaire and board your process had become and yet he refused to transfer the case for some reason whol authorized by the law that that might be an appropriate case for mandamus assuming that the defense could show irreparable harm i fetched a separate question and i don't believe that in your view over one hundred years ago in the reynolds case the supreme court wrote that when the sensational crime occurs virtually every member of the community who is well suited to be a juror will necessarily have heard about the case and will have an opinion about the defendant's guilt or innocence for that reason the supreme court has never established a numeric threshold yonder which prejudice must be presume this but i'm asking you  supreme court held that that factor was not an important factor in light of others that it had identified in that case and in others as being more important to the venue analysis of for example the amount of time that elapsed between the time of events in the trial the nature of the public city and most importantly in skilling the court identified the size of the jury pool as being among the most important if the last of the question is do you have i believe that the under the law it see factor in the venue calculus and in that case we are one hundred percent of jurors believe the defendant was guilty and one could be confident that that would not be true in other jurisdictions that would be a  what about ninety five percent again the same answer your honor i think though that this case as i understand the  agree with that the allegations of the of the defense or is there another reason i don't believe that correctly states the allegations of the defendant's i believe ok defendant alleged was that the public opinion polls that his expert conducted in advance of trial showed that ninety five percent of individuals in this district and for that matter in virtually every district hold had a prejudgment of the defendant's guilt i think what the defense has alleged is that sixty seven percent or that that number of jurors had carried their opinion into the jury box and yet that alone was insufficient to give rise to a presumption of prejudice in light of other factors that the court the more important  three options for answering yes no and unsure and the scimitar sent figure relates to the numbers who say yes i believe the defense may be counting those who say unsure their premise is that someone who says they are unsure has sure means they are unsure because they simply don't have enough facts to form an opinion well infested in fact doesn't the petitioner say in his briefing that the figure five percent are conclude who had formed an opinion that the defendant was not guilty that's correct and then the others there's a breakdown the others are either one and yes or unsure what ever they said is in writing so nature of being questioned individually well the wrong impression i don't get that is out of the experience of district court judges as they have described it in their own opinions about for d the view that is reflected in decisions of the supreme court or this court which have emphasized the importance of a judge's ability to question your face to face evaluate the jurors after body are very blunt instrument their only basis for obtaining information that might be sufficient to excuse a juror on grounds of hardship as a starting point for further questioning to really get to the heart of what the case during its time and i do agree that there was the media environment was very different than what i draw a different inference from that that the case along with the o venue case is decided by the supreme court shepard estes and rebel were all decided at the dawn of the media age when widespread publicity through television and radio  blanketing a small community was a new thing by nineteen eighty four already had national newspapers and national news channels and the fact that a sensational case was going to receive however i would suggest that quotes that are drawn in that manner which the district court below found were selective and misleading because they purport to characterize what the answers to the questionnaires were as a whole and do not fairly do so are not to be says on which to make a decision moreover the the problem with the case will decide the nineteenth right o de jailhouse confessing to the crime and that was broadcast to a tiny community over and over in the days immediately leading up to the trial so that the supreme court found that his trial had essentially already taken place in that jailhouse and that any proceeding would be a kangaroo court proceeding but is this case similar at least in the sense of that the defendant was televised allegedly placing a package that at the place where the the time the trial takes place will have been broadcast nearly two years earlier it was not broadcast to a population a small population of a little louisiana parish but a in a district with five million residents many of whom have told us during board year that they don't watch television they don't pay much attention to the news they look busy rives that they understand that what you see in the media is only one little piece of what happens  the exact opposite view that and one that has been appeared in many supreme court opinions that jurors are presumed to follow their instructions presume to follow the law that they take their oath seriously one of the owners they've repeatedly taken in this case is an oath to tell the truth about their exposure to pretrial publicity about their prejudices to the extent they have any and i believe the quotes that the court read are actually came from that that is taking place in the court below that people who have strong opinions about this case are unhesitatingly admitting them and if they feel that they can set them aside even though they understand that that is what is required of them as a jerk if they were to sit in this case they have i think it is a basic principle of statutory construction or russians or statutory construction but of the understanding of cases that more recent ones supercede earlier ones first i'd like to say it's not only the prejudicial pretrial publicity although there is a saturation level of that but it's that coupled with the connection it's there and said during the four years between the enron bankruptcy and the trial the decibel level of the media attention diminished somewhat here we have had a continual on influx of news of course you're going to cover that so that the true and anywhere in the country that this trial was set this trial has not the publicity that has been in the local news the stories about the victims struggles to recover the it's not something that is in the nationwide news it sets the road the w ongoing efforts to people to recover from that that you just don't have in another community you're not going to have people in washington who say my best friend was  standing near the finish line or my wife was a nurse and treated patients in the i c u you just don't get that kind of involvement that in other set of emotions and feelings in another jurisdiction that they have and there's nothing wrong with that it just means that it is not an appropriate place to try this case in yes you ha in the minutes of the change of venue in that case and we don't have that same kind of passage of time and we don't have any publicity about the crime which is what they had there but  the as i said the kind of view of these events is an assault on the city and the marathon and that takes this out of the realm of even cases like where you're talking a hearing you said that there is an important issue in this case involving whether if there is a presumption of prejudice based on pretrial publicity it is rebuttable or not but you don't argue that anywhere in your papers to us is that issue that well there's been exposure to prejudicial publicity this is during trial week required reversal because the effect cannot be ascertained and we believe that's the same here thank you very much