BOSTON (CBS/AP) — 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.
“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.
An email seeking comment was sent to an attorney for Tsarnaev. A spokesperson for the U.S. Attorney’s office in Boston said they were reviewing the opinion and had no immediate comment.
The April 15, 2013, attack killed three people and injured more than 260 others.
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 Dzhokhar 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 bombing. Dzhokhar Tsarnaev is now behind bars at a high-security supermax prison in Florence, Colorado.
Tsarnaev was convicted on 30 charges, including conspiracy and use of a weapon of mass destruction.
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.
“What the appeals court has attacked is not the venue but the fact the judge himself if not do sufficient questions, questioning of the jury pool to make sure they didn’t, in fact, harbor some type of bias,” said Jennifer Roman, WBZ-TV legal expert.
One juror had said in Twitter posts that that she was “locked down” with her family during the manhunt and retweeted another post calling Tsarnaev a “piece of garbage,” but later told the court she had not commented on the case or been asked to shelter in place, the defense said. On the day of Tsarnaev’s sentencing, the juror changed her Facebook profile picture to an image that said “BOSTON STRONG,” a rallying cry used in the wake of the bombing, the attorneys said.
Tsarnaev’s lawyers pushed several times to move the trial from Boston, arguing the intense media scrutiny and number of people touched by the bombings in the city would taint the jury pool. But U.S. District Judge George O’Toole refused, saying he believed a fair and impartial jury could be found in the city.
The 1st Circuit said the “pervasive” media coverage featuring “bone-chilling still shots and videos” of the bombing and dayslong manhunt required the judge to run a jury selection process “sufficient to identify prejudice.”
But O’Toole fell short, the judges said.
They said O’Toole deemed jurors who had already formed the opinion that Tsarnaev was guilty qualified “because they answered ‘yes’ to the question whether they could decide this high-profile case based on the evidence.” Yet he didn’t sufficiently dig into what jurors had read or heard about the case, the judges said.
“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 judges wrote.
“I’m not surprised,” said WBZ-TV Security Analyst Ed Davis, who was the Boston Police Commissioner at the time of the bombings, about the ruling. “I am concerned though that the victims have to relive this incident by this ruling.”
Boston Mayor Marty Walsh released a statement on the ruling Friday, saying “no one can ever take” the strength and healing the city found in the wake of the bombings.
“The Boston community will never forget the tragic events of April 15, 2013. Precious souls were lost, and countless lives were changed forever,” he said. “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.”
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.”
Stay with WBZ-TV, CBSN Boston and CBSBoston.com for more on this breaking story.
(© Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. Associated Press reporter Alanna Durkin Richer contributed to this report.)