The three-judge panel for the 1st U.S. Circuit Court of Appeals didn’t render a decision on Dzhokhar Tsarnaev's sentence but devoted a significant amount of inquiry into how two jurors were allowed to remain on the case, even after their social media posts suggested they harbored strong opinions.
“You’ve got lots of qualifiable jurors in Boston,” Judge William Kayatta said in one lengthy exchange with prosecutors. “You just need to make sure the government doesn’t cause the court to pick the wrong ones. That’s what it sounds like you did.”
Tsarnaev was convicted of 30 charges, including conspiracy and use of a weapon of mass destruction, in the April 15, 2013, attack that killed three people and injured more than 260 others. Now 26, he is in a supermax prison in Colorado and didn't attend the hearing.
His lawyer Daniel Habib argued the 2015 trial should never have been held in Boston because of the intense local media coverage and the emotional toll the attack had on the region. “The marathon bombings targeted a beloved and iconic civil institution,” he said in his opening statement. “It traumatized an entire community whose members mourned the victims, sheltered in their homes behind locked doors during the manhunt, celebrated Tsarnaev’s capture in the streets and together began to heal in the Boston Strong movement.”
But Kayatta noted that polling submitted by the defense ahead of the trial suggested that almost two-thirds of Boston-area residents hadn't decided whether they thought Tsarnaev deserved the death penalty.
He also said the poll’s findings suggested there wasn’t a great disparity in public opinion of the case in Boston over other cities where the trial could have been held, such as New York. The appellate judges homed in on Habib’s argument that the trial’s process for vetting jurors was flawed.
Tsarnaev’s lawyers had sought to disqualify two jurors before the trial started after discovering comments on social media about the bombings and trial. One juror, who would go one to become the foreperson, published two dozen tweets after the bombings.
One of those was a retweet of a comment that called Tsarnaev a “piece of garbage.” The juror also tweeted about her family’s experience sheltering in place during the hunt for the bombers. Another juror posted on Facebook as he was going through the jury selection process. His friends encouraged him to “play the part” in order to get on the jury and make sure Tsarnaev was convicted.
Prosecutors at the time downplayed the posts, and Judge George O’Toole allowed the jurors to remain on the case. But under the Boston court’s longstanding rules, the trial judge was obligated to ask more detailed follow-up questions after the social media posts came to light, said Judge O. Rogeriee Thompson.
Federal prosecutor William Glaser acknowledged O’Toole never did. Instead, he said, the judge simply re-reviewed the transcripts of the jurors' prior interviews. But Glaser maintained the jury selection process was rigorous.
“At the end of the day, it’s not about what the jurors have heard or seen about the case,” he argued. “It’s whether they can set aside what they’ve heard or seen and decide the case on the evidence presented before them.”
The appellate judges asked relatively fewer questions about the third major argument raised by Tsarnaev’s lawyers: that O’Toole wrongly excluded evidence connecting Dzhokhar’s older brother, Tamerlan, to a 2011 triple murder in Waltham, Massachusetts.
During the 2015 trial, Dzhokhar Tsarnaev’s lawyers did not dispute that their client was involved in the marathon attack. But they had hoped to highlight the still-unsolved Waltham murders as proof that 26-year-old Tamerlan Tsarnaev was radicalized and violent and had masterminded the marathon attack.
Tamerlan was killed in a gun battle with police days after the brothers detonated two pressure cooker bombs near the marathon finish line. If the death sentence is overturned, prosecutors can seek a new sentencing trial or allow Tsarnaev to accept the life sentence his lawyers originally sought.
If the sentence is upheld, his lawyers have other options for appeal, including to the U.S. Supreme Court. Melida Arredondo, whose husband, Carlos, famously helped victims at the marathon finish line, was among those in the packed courtroom Thursday.
Afterward, she said the concerns over the jury foreman’s social media posts left an impression on her. But she hoped it wouldn’t be enough to overturn the case. “This should have been handled better,” she said of the jury selection as she left the courthouse bundled for the bitter cold. “I thought this was all over.”