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.”