On March 21, 2024, the 1st 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 1st 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 1st 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. 1st 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.

Citation Guide
Sources

Alanna Durkin Richer, Appeals court orders judge to probe claims of juror bias in Boston Marathon bomber’s case, Associated Press, March 21, 2024; Nate Raymond, US appeals court directs probe of juror bias in Boston Marathon bomber’s case, Reuters, March 21, 2024; Alanna Durkin Richer, Court weighs toss­ing Boston marathon bomber’s death sen­tence, Associated Press, January 102023.

See the 1st Circuit Court’s rul­ing, here.