A federal appeals court Friday threw out Dzhokhar Tsarnaev’s death sentence in the 2013 Boston Marathon bombing, saying the judge who oversaw the case did not adequately screen jurors for potential biases.
A three-judge panel of the 1st U.S. Circuit Court of Appeals ordered a new penalty-phase trial on whether the 27-year-old Tsarnaev should be executed for the attack that killed three people and wounded more than 260 others.
“But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution,” the judges said, more than six month after arguments were heard in the case.
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"The death penalty always invites errors," said high-profile defense attorney J.W. Carney Jr., who is not affiliated with the Tsarnaev case. "We should finally accept that life imprisonment without the possibility of parole is a better result than the sentence of putting the person to death."
"We are grateful for the Court's straightforward and fair decision: if the government wishes to put someone to death, it must make its case to a fairly selected jury that is provided all relevant information," the Federal Defenders of New York, representing Tsarnaev, said in a statement. "The Court rightly acknowledges, as do we, the extraordinary harm done to the victims of the bombing. It is now up to the government to determine whether to put the victims and Boston through a second trial, or to allow closure to this terrible tragedy by permitting a sentence of life without the possibility of release."
Tsarnaev’s lawyers acknowledged at the beginning of his trial that he and his older brother, Tamerlan Tsarnaev, set off the two bombs at the marathon finish line. But they argued that Dzhokar Tsarnaev is less culpable than his brother, who they said was the mastermind behind the attack.
Tamerlan Tsarnaev died in a gunbattle with police a few days after the April 15, 2013, bombing. Dzhokar Tsarnaev is now behind bars at a high-security supermax prison in Florence, Colorado.
Tsarnaev’s attorneys identified a slew of issues with his trial, but said in a brief filed with the court that the “first fundamental error” was the judge’s refusal to move the case out of Boston. They also pointed to social media posts from two jurors suggesting they harbored strong opinions even before the 2015 trial started.
The appeals judges, in a hearing on the case in early December, devoted a significant number of questions to the juror bias argument.
They asked why the two jurors had not been dismissed, or at least why the trial judge had not asked them follow-up questions after the posts came to light on the eve of the trial.
The judges noted that the Boston court has a longstanding rule obligating such an inquiry.
Tsarnaev’s lawyers say one of the jurors — who would go one to become the jury’s foreperson, or chief spokesperson — published two dozen tweets in the wake of the bombings. One post after Tsarnaev’s capture called him a “piece of garbage.”
"The main mistakes were not ferreting out that the jurors either expressed opinions prior to the trial about Tsarnaev or offered opinions and received other people's opinions during the trial," Carney said. "Despite the judge conscientiously informing jurors that they are not to use social media during this time period, the jurors apparently could not resist."
"The Boston Marathon bombing was an act of terrorism that devastated families and residents across the Commonwealth and beyond," Gov. Charlie Baker tweeted Friday. "Victims and their families deserve justice and I hope this case is prosecuted to the fullest extent of the law."
"The Boston community will never forget the tragic events of April 15, 2013. Precious souls were lost, and countless lives were changed forever," Mayor Marty Walsh said in a statement Friday. "Since the first trial, we have always known that the perpetrator of that horrific violence would never leave the four corners of a prison cell."
"I have always supported the judicial process, and regardless of the ultimate outcome in this case, my focus will always be on supporting the families, the survivors, and all the people of our great city," Walsh added. "Nothing will ever replace what we lost in 2013. But with each new day, the Boston community continues to find new strength and healing in one another. That’s something that no one can ever take from us."
Tsarnaev was convicted on 30 charges, including conspiracy and use of a weapon of mass destruction.
A spokesperson for the U.S. Attorney’s office in Boston said they are currently reviewing the opinion and declined further comment at this time.