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.