1st Circuit hears appeal of Boston Marathon bomber Dzhokhar Tsarnaev.

Byline: Kris Olson

The lack of questioning of potential jurors about the contents of media coverage they consumed rose to the fore as the 1st U.S. Circuit Court of Appeals heard arguments on Dec. 12 over whether to vacate the conviction of the Boston Marathon bomber Dzhokhar A. Tsarnaev.

Specifically, Tsarnaev's attorney, Daniel Habib, and the government's attorney, William A. Glaser, were questioned about the contours and viability of the directive in a 51-year-old 1st Circuit case,Patriarca v. United States, an issue on which Habib appeared to gain an upper hand.

After Glaser noted that U.S. District Court Judge George A. O'Toole had asked jurors "general questions" about how much they had heard and read and the sources from which they had gotten their information, Judge O. Rogeriee Thompson clarified that he had not asked specific questions about content.

If the court interpretsPatriarcaas requiring inquiry into content as well, "you've got a problem?" she asked.

Glaser seemingly agreed but attempted to pivot to the U.S. Supreme Court's 1991 decisionMu'min v. Virginia, in which the court held that the trial judge's refusal to question prospective jurors about the specific contents of the news reports to which they had been exposed did not violate the defendant's Sixth Amendment right to an impartial jury or his right to due process under the Fourteenth Amendment.

But Judge William J. Kayatta Jr. said that his reading was that individual courts were free to adopt more stringent supervisory rules,Mu'minnotwithstanding.

In his rebuttal, Habib began by saying that the court had correctly determined that Patriarca requires questions about content.

He reiterated a point from his brief that in 1988, the 1st Circuit inUnited States v. Vest "clarified that the deficiency Patriarca aimed to cure was delegating to prospective jurors the evaluation of their own impartiality a defect that only content questioning can address." O'Toole had not met his obligation in this respect, Habib suggested.

In particular, the court expressed concern that jurors had not been probed about the influence of having been subjected to inadmissible evidence, such as influential opinions like those of Boston Mayor Tom Menino and some of the victims' family members, who had expressed the belief that Tsarnaev should face the death penalty.

Habib had opened the oral arguments by saying he intended to focus on O'Toole's denial of three requests: to change of venue, to...