In a ruling which caused much anguish in Boston and Massachusetts, the United States Court of Appeals for the First Circuit overturned the death sentence of Dzhokhar Tsarnaev, the convicted Boston Marathon bomber. The Appeals Court determined that the trial judge did not adequately ensure that an unbiased jury was picked, and a new penalty phase has been ordered.
What does this mean? At trial, Tsarnaev was convicted on all 30 counts and he was sentenced to death on 6 of those counts. The bulk of his convictions will remain and he will not be set free. Three people were killed in the bombing and more than 260 were injured, many seriously. An MIT police officer was fatally shot by Tsarnaev and his brother while attempting to evade authorities in the days after the attack. Tsarnaev admitted to the charges and his guilt has not been overturned by the Appeals Court. As the Court noted: “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.”
Will he be sentenced to death? That is a possibility but remains to be seen. A new jury will be picked and there will be a repeat of the penalty phase of the trial. The government will again argue that the heinous nature of the crimes requires that Tsarnaev be put to death, and defense counsel will once again argue that his life should be spared.
The question posed by defense counsel before the trial began was whether Tsarnaev could receive a fair trial in Boston given the nature of the attack and the amount of negative local publicity the bombing created. Counsel claimed it was not possible to find an unbiased and untainted jury in Boston given the intense pre-trial publicity. Defense counsel therefore asked, prior to trial, that venue be changed and the case moved out of Boston. The trial judge denied the request, stating that the jury selection process would be very thorough and rigorous so those chosen would be able to render a fair and impartial verdict.
The Appeals Court issued a 224 page opinion in support of its decision. The Court did not find the Boston location of the trial to be a problem. Rather, it found the trial judge’s jury selection process did not adequately screen out potential biases in the selected jurors. It turned out that some jurors had social media posts indicating they had strong opinions about the case and had discussed it online before they were selected as jurors. The Appeals Court was concerned that jurors had been picked who had already made up their minds about the case and the punishment to be meted out. As the Court wrote:
“The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part — because they answered ‘yes’ to the question whether they could decide this high-profile case based on the evidence. The defense warned the judge that asking only general questions like that would wrongly ‘make’ the potential jurors ‘judge[s] of their own impartiality’ — the exact error that the Patriarca line of cases seeks to prevent. But the judge dismissed the defense’s objection, saying that ‘[t]o a large extent’ jurors must perform that function. Yet 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 (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint. This was an error of law and so an abuse of discretion.”
The penalty phase of the case will be re-tried. It is unknown at this point whether the case will proceed in Boston or be moved to another location. The remaining question is whether Tsarnaev will spend the rest of his life in jail for his crimes or be executed. If a second death penalty sentence is sought, which is likely, the jury selection process will be more thorough and seek information from prospective jurors about social media posts and pre-conceived notions concerning the case and the punishment to be handed out.