Tsarnaev is accused of setting off the bombs at the April 2013 Boston Marathon that killed three people and injured hundreds of others.

“I think it breathes some hope into their persistent efforts to get this trial moved out of Boston,” said David Hoose, a lawyer with the Northhampton-based firm Sasson, Turbull, Ryan & Hoose, who specializes in death penalty cases.

A federal appeals court agreed Thursday to hear arguments in Dzhokhar Tsarnaev’s latest request to relocate his trial, providing a rare chance for Tsarnaev’s lawyers to make the case that the presiding judge cannot impanel a fair jury in Boston.


His lawyers have argued — in three requests to the trial judge and two requests to the federal appeals court — that too many people in Eastern Massachusetts have a connection to the Marathon or already believe that Tsarnaev is guilty for him to receive a fair trial in the same city where the bombs went off.

US District Judge George A. O’Toole Jr., who is overseeing Tsarnaev’s trial has rejected the request to relocate the trial three times, and prosecutors have supported the decision, saying the judge is well into the process of picking a fair jury.

In the most recent request to the appeals court, two judges on a three-member appeals court panel still oppose the defense’s request to intervene, and they refused to suspend ongoing jury deliberations.

But a request for oral arguments can be granted by a single judge of the US Court of Appeals, and Judge Juan R. Torruella has said before that he believes Tsarnaev’s request to relocate the trial “is compelling.”

Torruella did not elaborate on his thoughts Thursday. He said that the refusal of fellow panel members Chief Judge Sandra L. Lynch and Judge Jeffrey R. Howard to suspend jury selection until the oral arguments hearing was contrary to the court’s past practices “and the principles of due process.”


The appeals court hearing is scheduled for 10 a.m. Thursday, and defense lawyers and prosecutors each will have 20 minutes to make their arguments. Each side can also file written briefs before Tuesday.

The arguments will be public, though the appeals court advised the lawyers not to discuss any sealed material related to ongoing jury discussions that have been confidential.

Torruella argued in the court’s decision Thursday that “it will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the defendant to receive a fair trial.”

But legal analysts argued that the hearing — a rare consideration of a petition for mandamus, or immediate intervention — will give Tsarnaev’s lawyers an extended opportunity to state their concerns.

“It seems to me that [Torruella] is concerned with the issues that are raised, and he’s hopeful that a full hearing will flesh out the issues, so that his colleagues will have fully heard the issues,” said Anthony Fuller, a former federal prosecutor and a lawyer with Collora LLP.

Even if Howard or Lynch are not swayed, the defense team could pitch a strong enough argument that the full bench of the US Court of Appeals for the First Circuit could want to consider the case in what is known as an “en banc” hearing, Hoose said.


The continuing legal wrangling over the trial’s location also shows the difficulties that the judge and prosecutors face in choosing a jury for a death penalty trial, known as a “death qualified” jury.

In Colorado, for instance, a judge summoned 9,000 prospective jurors for the death penalty trial of James E. Holmes.

Holmes is accused of killing 12 people and wounding 70 during a showing of a Batman film at a movie theater in 2012. Jury selection in that case began in January and is ongoing.

In Tsarnaev’s case, O’Toole summoned 1,373 prospective jurors who filled out questionnaires.

Of those, 183 of them have been interviewed by the judge in person. O’Toole has not said how many have been deemed eligible for the jury.

The interviewing process, known as voir dire, began on Jan. 15, though it has been suspended six times because of snow storms.

Hoose, who defended convicted murderer Kristen Gilbert from the death penalty in a 2001 trial in Springfield, said the jury selection process in Tsarnaev’s case could still be in the early stages.

He added that 14 days of questioning would be “a quick process.”

“It feels a lot longer than it really has been,” he said.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.