Federal Appeals Court Hears Argument in Boston Marathon Bombing Case

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev (pictured) sought to overturn his conviction and federal death sentence on Thursday, arguing in a federal appeals court that he could not get a fair trial in a city still traumatized by the attack. During the two-hour argument before the U.S. Court of Appeals for the First Circuit in Boston on December 12, 2019, they also claimed Tsarnaev was denied an impartial jury when the trial court prohibited him from asking jurors about their exposure to pretrial publicity that may have affected their views and permitted jurors to serve whose pretrial social media posts expressed bias against him.

Tsarnaev’s appeal lawyer, Daniel Habib, argued to the appeals court that U.S. District Court Judge George A. O’Toole erred when he denied defense motion to move the trial out of Boston. “The marathon bombings targeted a beloved and iconic civil institution,” he said. “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.” In that environment, Habib argued, it was impossible to empanel an impartial jury. “This case should not have been tried in Boston,” he said.

News reports of the argument said the three-judge panel appeared skeptical of that claim, but seemed deeply troubled by the government’s efforts to prevent the defense from asking jurors about their experiences during the attack and by the empaneling of a jury forewoman who had called Tsarnaev a “piece of garbage.” Although the forewoman had tweeted or retweeted about the bombing 22 times — including commenting on the psychological impact of being at work while her family was “locked down” during the manhunt for Tsarnaev — she had concealed that information during jury selection when asked about her social media activity. A second juror had violated the court’s order to stay off social media, posting on Facebook that he was in the jury pool for the case. One friend urged him to “play the part so u get on the jury then send him to jail where he will be taken care of,” and another wrote, “if you’re really on jury duty, this guys [sic] got no shot in hell.” When the defense learned of those posts, Judge O’Toole refused to question the jurors about it and refused to remove them from the jury.

Judge William J. Kayatta, Jr. told federal prosecutor William Glaser, “You’ve got lots of qualified jurors, the government’s own data shows it …. [Y]ou just have to make sure you don’t pick the wrong ones, and that’s what it sounds like you did.”

Kayatta also expressed concern over the court’s refusal to permit questioning of the jurors about their exposure to pretrial publicity, as required by a 1960s First Circuit case, Patriarca v. United States. “You have a Patriarca problem,” Kayatta said, to which Glaser replied, “Yes, we do.” Judge Ojetta Rogeriee Thompson also questioned the trial court’s failure conduct a detailed inquiry into where the jurors got their information about Tsarnaev. “Why isn’t this the kind of case that would require probing that kind of information?,” she asked.

Kayatta described the government’s conduct in the case as “very puzzling.” “You have a defendant who is clearly guilty of this heinous crime and you then stretch and don’t try to follow the rules that we’ve laid down for a trial,” he said.

Habib also argued that Judge O’Toole had improperly excluded evidence of that Tsarnaev’s older brother, Tamerlan had committed a prior triple murder. That evidence, he said, was important to Dzhokhar Tsarnaev’s claim that Tamerlan was the more culpable of the two and that Dzhokhar had acted under his domination. The court asked few questions about that issue.