Federal Prosecutors Seek Supreme Court Review of Appeals Decision Overturning Death Sentence in Boston Marathon Bombing

Federal prosecutors have filed a petition in the U.S. Supreme Court asking the Court to review a federal appeals court ruling that overturned the death sentence imposed on Dzhokhar Tsarnaev (pictured) in the 2013 Boston Marathon bombing.

On October 6, 2020, the U.S. Department of Justice filed a petition for writ of certiorari challenging the July 31 ruling of the U.S. Court of Appeals for the First Circuit that Tsarnaev’s right to an impartial jury had been denied when the trial judge failed to question nine of the 12 impaneled jurors on the content of their exposure to the extensive pretrial publicity about the case. Prosecutors also challenged the appeals court’s decision that the trial court improperly excluded mitigating evidence relating to his brother Tamerlan’s involvement in a prior triple murder that would have supported Dzhokar Tsarnaev’s argument that Tamerlan was more culpable and that Dzhokhar was acting under the dominating influence of his older brother.

In August, Attorney General William Barr vowed to “do whatever’s necessary” to return Tsarnaev to the federal government’s death row. “We will take it up to the Supreme Court and we will continue to pursue the death penalty,” he said at that time.

In asking the Court to review and overturn the judgment of the First Circuit, federal prosecutors stressed the circumstances of the offense and the logistical consequences of having to retry the case. The petition states: “To reinstate the sentences that the jury and the district court found appropriate for respondent’s heinous acts, the government will have to retry the penalty phase of the case; the court will have to conduct (and prospective jurors will have to undergo) a voir dire that will presumably be much longer and more onerous than the original 21-day proceeding; and the victims will have to once again take the stand to describe the horrors that respondent inflicted on them.”

The prosecutors characterized the appeals court ruling as requiring that “a district court must always grant counsel’s request to ask every prospective juror in a ‘high profile case’ what they had ‘read and heard about the case,’” and called the appeals court’s rule “rigid” and “inflexible.” In its decision, the circuit court noted that the government had initially requested that the trial judge inquire into the substance of jurors’ exposure to publicity and that the trial court had planned to ask those questions until prosecutors changed their mind.

After the jury was impaneled, defense counsel learned that two of the jurors, including the one that eventually became foreman, had published several social media posts about Tsarnaev following the bombing. One juror tweeted that Tsarnaev was a piece of garbage and on the day of the sentencing changed her Facebook profile picture to an image that said ‘Boston strong.’

Federal prosecutors also argued that the trial court properly excluded evidence of Tamerlan’s lead role in a triple murder on the tenth anniversary of the 9-11 attacks. Such evidence, they said would “sidetrack the penalty-phase proceeding in this case by inviting the jurors to solve a different crime” and “had no significant probative value” on the extent and circumstances of Dzhokhar Tsarnaev’s involvement in the marathon bombing. In any event, the prosecutors said, any error in excluding the evidence was “harmless.”