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July 31, 2020

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "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," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

July 31, 2020 at 07:51 PM | Permalink


This represents a first baby step in reversing this fake conviction. At least this may allow him too challenge the entire corrupt conviction. We can only hope and pray that he does challenge it and that his case and the cases of others utterly destroy the evil that is federal and state prosecutors who have no desire for justice but only want to convict convict convict.

Let's hope that this is one of the first steps to the destruction the evil that is US Jurisprudence.

Posted by: restless94110 | Aug 1, 2020 6:31:31 PM

So stupid. A terrorist mass murderer is so hopelessly irredeemable that the only grounds for not putting them to death should be doubt about their guilt. In this case, there isn't any, regardless of what the first commenter says.

Courts have found so many things in the Constitution. Couldn't they find a right to freedom from endless appeals of death sentences of mass murderers? For example, it would not be difficult to read such meaning into the phrase "he shall take Care that the Laws be faithfully executed . . ."

Posted by: William C Jockusch | Aug 1, 2020 10:46:42 PM

Given that the First has six judgeships, seeking en banc review on a 3-0 decision by three non-visiting, non-senior circuit judges seems pointless. Also, the panel said it would have reversed on exclusion of some proferred mitigating evidence as well, so the government would have to win on that too. Nothing about the decision strikes me as certworthy, but maybe the government will try anyway for political reasons because the case is so high profile.

Posted by: Jason | Aug 1, 2020 11:48:40 PM

I further note that the various governing opinions have built layer upon layer of castles in the air.

First off, the rule now is apparently that a death penalty require an "aggravating factor." Where does the Constitution say that?

Then, according to Ring v. Arizona, the aggravating factor is supposed to be found by a jury.

But next, one juror the opinion objects to appears to believe that someone who carries out the Marathon bombing is a "piece of garbage". But wait a minute. Wouldn't terrorism, mass murder, murder of a child, indiscriminate murder, the mass disfigurement of surviving victims, and the lockdown of a large city all be aggravating factors? In other words, a requirement that a jury find aggravating factors has been upgraded to a requirement that no juror believe that a particularly outrageous set of factors cannot be sufficiently aggravating that no amount of mitigation could matter.

If the requirement is to find aggravating factors, then a belief that at least 50% of all murders are not sufficiently aggravated should be enough. A requirement that a particularly outrageous set of murders not be sufficiently aggravated is unreasonable.

Posted by: William C Jockusch | Aug 1, 2020 11:58:19 PM

So what's the lesson? To prevent this type of insanity, we need a President whose judicial appointees are to the right of Reagan's?

There is nothing in the Constitution that says one can't have a juror who considers some crimes so outrageous that no amount of mitigation could possibly matter. But that's what the ruling says.

Posted by: William C Jockusch | Aug 2, 2020 1:27:32 PM

I am always troubled when I see victims relying on the justice system, most particularly the death penalty, to reach closure or other psychological aid in a traumatic crime.

I cannot imagine being a victim of something like the Boston bombing, but I am quite certain that the event of execution of Tsarnaev will change nothing about the trauma or suffering of the victim.

I can see that a trial that exposes the events and the defendant's responsibility for them and that culminates in conviction and the formal and indisputable (once appeals are exhausted in any event) leveling of blame serves some purpose of closure. But attaching some sort of psychological benefit to the death penalty, or any particular penalty at all just has to be unhealthy.

To quote a great film, "deserve's got nothin to do with it."

Posted by: fat bastard | Aug 2, 2020 11:33:17 PM

I could see the Supreme Court granting certiorari on the issue of pre-trial publicity voir dire. I could also see the potential for a summary reversal. The most recent case that I can recall on pre-trial publicity voir dire was the Skilling (Enron CEO) case in which the Supreme Court affirmed the adequacy of voir dire. From a quick glance, the First Circuit precedent appears to require much more than the Skilling case (or the earlier Mu'Min case does). In justifying this difference, the First Circuit seems to say that those cases involved the constitutional minimum but this case involves it exercising its supervisory authority over the district courts in that Circuit. Of course, the Supreme Court has supervising authority over the First Circuit and could determine the appropriate scope of such voir dire for all federal courts.

On the other hand, the Supreme Court could see the issues in this case as too fact-specific. Of course, every case has its fact-specific component, but -- if the Supreme Court wants to take a pass, it could.

If I were in the U.S. Attorney's Office in Boston or the Solictor General's Office, I would seriously consider filing for certiorari. While I am not sure where the Supreme Court will draw the line, I think that it is unlikely that they would adopt the First Circuit's rules. The argument against certiorari is the possibility that the bottom-line result (a new penalty trial) might be the same and the extra year involved in seeking Supreme Court review would delay that new trial.

Posted by: tmm | Aug 3, 2020 12:52:33 PM

Fat Bastard, for me the bottom line is that executing him would bring so many benefits. Yes, closure to the victims. It does not bother me in the slightest that it won't make them whole. It's still something and they deserve it. Tax savings for you and me. No more opportunities for the perp to convey his ideology to other inmates . . . or to anyone. No more appeals. All of these things are good.

Posted by: William C Jockusch | Aug 3, 2020 1:30:18 PM

You are incorrect about tax savings. By almost all accounts, executing someone, with the attendant prosecution costs and appeals, is more expensive than imprisoning them for life.

Posted by: Fat Bastard | Aug 5, 2020 1:34:51 PM

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