A federal appeals court in Massachusetts Friday vacated the death sentence of the surviving Boston Marathon bomber Dzhokhar Tsarnaev, ruling that a judge did not fully vet potential jury bias in a case that consumed the city.
The First Circuit Court of Appeals left the most serious death-eligible convictions in tact but ordered a new trial to decide whether Tsarnaev, 27, should be executed. Even if Tsarnaev avoids the death penalty, he will still remain in prison for life.
The appeals court said Tsarnaev did not receive a fair trial when he was sentenced by a jury to death in 2015 for his role in the April 15, 2013, twin bombings at the marathon’s finish-line that killed three people and injured 264 people more.
But although a win for Tsarnaev, the three-judge appeals court made clear the new hearing will only decide sentencing.
“Just to be crystal clear,” the appeals court said, “because we are affirming the convictions … and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”
Prior to his sentencing, attorneys for Tsarnaev, 19 at the time of the bombings, agreed their client was responsible for the deaths but contended he was less culpable than his accomplice, older brother Tamerlan Tsarnaev, who was killed by authorities following a four-day manhunt. A fourth victim, an MIT police officer, was shot and killed by the Tsarnaev brothers during the manhunt.
Dzhokhar Tsarnaev’s defense attorneys argued during a December appeal hearing he did not receive a fair trial in Boston before was sentenced to death, pointing to relentless media coverage in the city where the bombing occurred and city-wide trauma that “filtered” into the jury pool. They said two jurors lied by concealing prejudiced remarks made on social media about the case before the trial.
“Radical jihadists bent on killing Americans, the duo caused battlefield-like carnage,” Judge O. Rogeriee Thompson wrote in the ruling on behalf of the appeals court.
But she concluded: “A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished — a point forcefully made by the then-U.S. Attorney for Massachusetts during a presser at the trial’s end.”
“Despite a diligent effort, the judge did not meet the standard.”
A spokeswoman for the U.S. Attorney for the District of Massachusetts said they are “reviewing the opinion” but declined to comment further.
More: Boston bomber’s lawyers seek to overturn conviction, death sentence
President Donald Trump weighed in on the ruling during an address to supporters on the tarmac of Tampa International Airport.
“I see in Boston, where you have the animal that killed so many people during the Boston Marathon,” Trump said. “They just sent this conviction for the death penalty back to the lower courts so they’ll argue about that for a long time. It’s ridiculous.”
Daniel Habib, attorney for Dzhokhar Tsarnaev, did not immediately respond to a request for comment.
The three-judge appeals court said the judge who presided over Dzhokhar Tsarnaev’s 2015 trial, U.S. District Judge George A. O’Toole, should have more closely inspected bias during jury selection.
“By not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint,” the appeal court’s opinion said. “This was an error of law and so an abuse of discretion.”
During the December appeal hearing, Habib singled out the jury’s forewoman, who concealed 22 Twitter posts mourning the victims of the bombings, praising the law enforcement officers who captured Tsarnaev and calling him a “piece of garbage.” He said she also was among residents in Boston’s Dorchester neighborhood whose home was under a take-shelter order during the manhunt of the Tsarnaev brothers.
Habib said another juror disobeyed court instructions when he posted on Facebook that he was a potential juror. One of his friends, according to Habib, replied that he should “play the part,” “get on the jury,” and send Tsarnaev “to jail where he will be taken care of.”
The court did not decide whether the new trial would again take place in Boston. But two of the three appeals judges said O’Toole used proper discretion in choosing Boston as a venue. Before his conviction, Tsarnaev’s lawyers sought to move the trial to Washington, D.C.
Staff writer Kevin Johnson and the Associated Press contributed to this report. Reach Joey Garrison on Twitter @joeygarrison.