Boston Marathon bomber Dzhokhar Tsarnaev wins death penalty appeal

A federal appeals court has thrown out Dzhokhar Tsarnaev’s death sentence in the 2013 Boston Marathon bombing, saying the judge who oversaw the case has not adequately screened jurors for potential biases.

A three-judge panel of the 1st US Circuit Court of Appeals ordered on Friday a new penalty-phase trial on whether the 27-year-old Tsarnaev should be executed for the attack that killed three people and wounded more than 260 others.

“But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution,” the judges said, more than six months after arguments were heard in the case.

Tsarnaev's lawyers acknowledged at the beginning of his trial that he and his older brother, Tamerlan Tsarnaev, set off the two bombs at the marathon finish line. But they argued that Dzhokar Tsarnaev is less culpable than his brother, who they said was the mastermind behind the attack.

Tamerlan Tsarnaev died in a gun battle with police a few days after the April 15, 2013, bombing.

Dzhokar Tsarnaev is now behind bars at a high-security super max prison in Florence, Colorado.

Tsarnaev was convicted on 30 charges, including conspiracy and use of a weapon of mass destruction.

Tsarnaev’s attorneys identified a slew of issues with his trial, but said in a brief filed with the court that the “first fundamental error” was the judge’s refusal to move the case out of Boston. They also pointed to social media posts from two jurors suggesting they harboured strong opinions even before the 2015 trial started.

One juror had said in Twitter posts that that she was “locked down” with her family during the manhunt and retweeted another post calling Tsarnaev a “piece of garbage,” but later told the court she had not commented on the case or been asked to shelter in place, the defence said. 

On the day of Tsarnaev’s sentencing, the juror changed her Facebook profile picture to an image that said “BOSTON STRONG,” a rallying cry used in the wake of the bombing, the attorneys said.

Tsarnaev's lawyers pushed several times to move the trial from Boston, arguing the intense media scrutiny and number of people touched by the bombings in the city would taint the jury pool.

But US District Judge George O’Toole refused, saying he believed a fair and impartial jury could be found in the city.

Jury selection

The 1st Circuit said the “pervasive” media coverage featuring “bone-chilling still shots and videos” of the bombing and dayslong manhunt required the judge to run a jury selection process “sufficient to identify prejudice."

But O'Toole fell short, the judges said.

They said O'Toole deemed jurors who had already formed the opinion that Tsarnaev was guilty qualified “because they answered ‘yes’ to the question whether they could decide this high-profile case based on the evidence.” Yet he didn't sufficiently dig into what jurors had read or heard about the case, the judges said.

"By not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (eg, whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint," the judges wrote.

President Donald Trump weighed in on the ruling during an address to supporters on the tarmac of Tampa International Airport.

"I see in Boston, where you have the animal that killed so many people during the Boston Marathon,” Trump said. “They just sent this conviction for the death penalty back to the lower courts so they’ll argue about that for a long time. It’s ridiculous.”

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