Federal Appellate Court Ruling Requires Investigation into Jury Bias in Boston Marathon Case

On March 21, 2024, the 1^st U.S. Circuit Court of Appeals ordered the judge who presided over Dzhokhar Tsarnaev’s (pic­tured) tri­al to inves­ti­gate his defense attor­neys’ claims of juror bias and deter­mine whether Mr. Tsarnaev’s death sen­tence should be over­turned because of this bias. In a 2 – 1 deci­sion, the 1^st Circuit declined defense attor­ney requests to over­turn Mr. Tsarnaev’s death sen­tence for his par­tic­i­pa­tion in the April 2013 Boston Marathon bomb­ing but found that the tri­al judge ​“fell short of what was con­sti­tu­tion­al­ly required” in his inves­ti­ga­tion of poten­tial jury bias, remand­ing the case for a new inves­ti­ga­tion. If Mr. Tsarnaev’s tri­al judge deter­mines that either of the jurors in ques­tion should have been dis­qual­i­fied from serv­ing on the jury, he could vacate Mr. Tsarnaev’s death sen­tence and require a new penal­ty-phase tri­al. In the appel­late court’s rul­ing, the judges wrote that ​“even then, we once again empha­size that the only ques­tion in any such pro­ceed­ing will be whether [Mr.] Tsarnaev will face exe­cu­tion; regard­less of the out­come, he will spend the rest of his life in prison.”

In a 2020 rul­ing, the 1^st Circuit set Mr. Tsarnaev’s sen­tence aside when it deter­mined that the tri­al court erred in exclud­ing evi­dence sur­round­ing Mr. Tsarnaev’s brother’s influ­ence over him dur­ing the com­mis­sion of the crime and because ​“prospec­tive jurors were not ques­tioned enough about their expo­sure to news about the bomb­ings.” Two years lat­er, the United States Supreme Court restored Mr. Tsarnaev’s death sen­tence in a 6 – 3 rul­ing, where Justice Clarence Thomas wrote that the U.S. Constitution ​“guar­an­teed [Mr. Tsarnaev] a fair tri­al before an impar­tial jury. He received one.” After the Supreme Court’s rever­sal, Mr. Tsarnaev’s attor­neys returned to fed­er­al appeals court in January 2023, urg­ing the Court to con­sid­er addi­tion­al issues that the Supreme Court did not hear, includ­ing the issue of seat­ing jurors who may have lied dur­ing ques­tion­ing, as well as three oth­er claims per­tain­ing to venue of the tri­al, the erro­neous dis­missal of a qual­i­fied juror, and the mis­treat­ment of particular evidence.

During oral argu­ments in front of the appel­late court, attor­neys for Mr. Tsarnaev argued that one juror untruth­ful­ly told the judge she had not com­ment­ed about the case online but found she had retweet­ed a post that referred to Mr. Tsarnaev as a ​“piece of garbage.” The oth­er juror in ques­tion said his Facebook friends had not com­ment­ed on the case, despite one friend urg­ing him to ​“play the part” and get on the jury to send Mr. Tsarnaev to ​“jail where he will be tak­en care of,” accord­ing to defense attor­neys. These con­cerns were ini­tial­ly raised at tri­al, but the tri­al judge did not inves­ti­gate these claims fur­ther. William Glaser, a Justice Department lawyer, acknowl­edged the inac­cu­ra­cies of the jurors’ state­ments, but said addi­tion­al infor­ma­tion sug­gests the jurors mis­re­mem­bered but did not lie. 1^st Circuit Court Judge William Kayatta Jr., who deliv­ered the 2 – 1 opin­ion, ques­tioned Mr. Glaser on how the tri­al judge could have known this with­out inves­ti­gat­ing Mr. Tsarnaev’s claims.

The U.S. Justice Department (DOJ) has con­tin­ued to aggres­sive­ly defend Mr. Tsarnaev’s death sen­tence, despite Attorney General Merrick Garland’s 2021 announce­ment of a mora­to­ri­um on fed­er­al exe­cu­tions dur­ing a review of the government’s death penal­ty poli­cies and pro­ce­dures. AG Garland’s mora­to­ri­um came six months after for­mer President Donald Trump left office. 13 indi­vid­u­als were exe­cut­ed dur­ing the final six months of President Trump’s admin­is­tra­tion. During the 2020 pres­i­den­tial cam­paign, President Joseph Biden promised to end the fed­er­al death penal­ty, how­ev­er, his admin­is­tra­tion has tak­en no action towards abo­li­tion dur­ing his presidency. 

AG Garland’s mora­to­ri­um does not pre­vent the Department of Justice and its pros­e­cu­tors from seek­ing new fed­er­al death sen­tences. On January 12, 2024, the DOJ announced that it will seek a death sen­tence for Payton Gendron, the then-18-year-old who killed ten Black peo­ple at a Tops super­mar­ket in Buffalo, New York in 2022. Mr. Gendron’s case is the first cap­i­tal case autho­rized by AG Garland and the Biden Administration’s DOJ but is not expect­ed to pro­ceed to tri­al until 2025. Mr. Gendron has already pled guilty to state charges and has offered to plead guilty to fed­er­al charges in exchange for a life sen­tence with­out the pos­si­bil­i­ty of parole. The fed­er­al charges against Mr. Gendron include hate crimes, sim­i­lar to many of the 63 charges brought against Robert Bowers after he shot and killed eleven wor­ship­pers at the Pittsburgh Tree of Life Synagogue in 2018. Mr. Bowers was also charged fed­er­al­ly and received a death sen­tence on August 1, 2023. Mr. Bowers’ sen­tence was the first new fed­er­al death sen­tence since 2019 and the first secured by the Biden admin­is­tra­tion. Mr. Bowers and Sayfullo Saipov, for whom the DOJ also sought but failed to secure a death sen­tence, were ini­tial­ly charged under the Trump admin­is­tra­tion and Attorney General William Barr.