A federal appeals court judge questioned Thursday whether the jurors who condemned Boston Marathon bomber Dzhokhar Tsarnaev to death were correctly screened for bias against the defendant, raising a possible flaw in the proceedings that could force the court to vacate Tsarnaev’s sentence and order a new trial.
Tsarnaev’s lawyers charge that at least two jurors withheld social media posts about the case — including one in which the juror foreperson called Tsarnaev “a piece of garbage” — and that trial Judge George A. O’Toole Jr. was too quick to dismiss the lawyers’ concerns.
“You’ve got lots of qualified jurors, the government’s own data shows it . . . you just have to make sure you don’t pick the wrong ones, and that’s what it sounds like you did,” Appeals Court Judge William J. Kayatta Jr. told a government prosecutor.
If Kayatta and the two other judges who heard oral arguments in Tsarnaev’s appeal Thursday overturn the death sentence, federal prosecutors would have to decide whether to retry the case or allow Tsarnaev to serve life in prison. He has confessed to the crimes.
It could take several months before the appeals court renders a decision.
The judges who sit on the three-member panel of the US Court of Appeals for the First Circuit did not directly weigh in on whether the trial should have been held in Boston, one of the questions that was raised early on in the case in a series of unsuccessful motions for a change of venue.
At times, the judges suggested it could have been appropriate to keep the trial in the city where the deadly attacks occurred. Instead, their questions centered on whether O’Toole and prosecutors followed the proper process for picking a jury once that decision was made, and whether they picked an impartial jury.
Lawyers for Tsarnaev argued that it was critical that prospective jurors, who all came from Eastern Massachusetts, were scrupulously screened in such a high-stakes case about who was responsible for an act of terrorism on an iconic Boston sporting event.
“It was the extraordinary effect of this crime on this community,” said Daniel Habib, one of Tsarnaev’s lawyers, adding, “The effect of the crime on this community will not change.”
Thursday’s hearing involved the first outside review of Tsarnaev’s case since he was sentenced in 2015 for his role in the 2013 bombing, which killed three and injured more than 260 people, including 17 who lost limbs. He and his older brother, Tamerlan, also killed MIT police officer Sean Collier during an attempt to flee from the area days later. Tamerlan was killed in a firefight with police in Watertown, and the younger Tsarnaev was found hiding in a boat.
The three people killed in the attacks were: Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, 29, of Arlington; and Martin Richard, an 8-year-old from Dorchester.
The trial in the federal courthouse in South Boston lasted five months and revived a horrific week for the city.
Throughout the trial, Dzhokhar Tsarnaev’s lawyers sought to paint Tamerlan as the dominating older brother, who coerced his brother into adopting the radical Islamic views that motivated the attack.
At Thursday’s hearing, the lawyers argued that O’Toole also erred when he refused to allow them to present evidence that Tamerlan had brutally killed three people in Waltham just two years before the attacks, and that his brother knew of the crime. The lawyers claimed that the evidence would have bolstered their arguments that Tamerlan was the true mastermind of the Marathon bombing and, had he survived, the only one deserving of death.
But the focus of Thursday’s oral arguments was on whether it was ever possible to empanel a fair jury in Eastern Massachusetts — and whether the two jurors’ concealing their social media posts showed that it wasn’t.
Tsarnaev’s lawyers argued that O’Toole should have adopted a “presumption of prejudice” that would have forced him to relocate the trial to another venue, where the juror pool would have been exposed to less pretrial publicity.
Instead, O’Toole vowed that he could establish a proper screening process that would filter out juror bias, holding steady to the belief that Tsarnaev should be tried in the same city where the bombs went off.
William A. Glaser, a government prosecutor with the US Department of Justice, argued that jurors who had known about the bombing before the trial could still be qualified to serve, as long as they could put any prejudice aside and solely consider the merits of the case.
“It’s not what jurors have heard, or what they’ve seen, it’s whether they can put that aside, and decide the case without any bias,” Glaser said.
But Habib argued that the effort proved “hollow,” after Tsarnaev’s trial attorneys showed during the end-stages of the jury selection process that two of the jurors had concealed posts on social media about the case.
One of the jurors, the foreperson, hid that she had posted on Twitter about being “locked down” during the manhunt for Tsarnaev, and that she called him a “piece of garbage” after the attacks.
Another juror posted about the jury selection process on Facebook, sparking a discussion in which his friends urged him to “play the part,” “get on the jury,” and send Tsarnaev “to jail where he will be taken care of.” And yet the juror swore that he had not talked to anybody about the case.
O’Toole dismissed the social media posts as “speculation,” and noted that the jurors had already sworn that they could put what they knew about the case aside. But he never directly questioned the jurors about the posts, and the appeals court judges wondered whether he had a duty to probe further.
“Why wouldn’t a judge want to know how a juror explains that difference? Wouldn’t you want to ask the juror?” Kayatta asked. “You ask the jurors, ‘What do you know about this case, and where did you learn it from,’ and the jurors weren’t asked that.”
Judge O. Rogeriee Thompson asked where the trial would be held if the court did decide to vacate the death sentence, and whether it could happen in Boston.
Habib said that determination would have to be made by the trial judge.