Friday’s federal appeals court ruling vacating Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence raised one key question: what comes next in one of the most notorious criminal cases in the city’s history?
The Justice Department, led by US Attorney General William Barr, must choose among three options: Appeal the ruling in the hopes that a higher court will restore the sentence, return to court in an effort to convince a jury to sentence Tsarnaev to death again, or abandon the pursuit of capital punishment — secure in the knowledge that Tsarnaev will remain in prison for the rest of his life regardless of the latest ruling.
The office of Massachusetts US Attorney Andrew E. Lelling, whose predecessor oversaw the 2015 prosecution of Tsarnaev, said Friday that authorities were reviewing the ruling from the US Court of Appeals for the First Circuit and would have more to say in the coming weeks.
Neither Lelling’s office nor the DOJ immediately responded to e-mail messages seeking comment Monday.
Andrea D. Lyon, a prominent death penalty litigator and author whose books on the subject include “Angel of Death Row: My Life as a Death Penalty Defense Lawyer,” said Monday that prosecutors, if they decide to challenge the appellate ruling, can seek Supreme Court review or a hearing before the full panel of the First Circuit Appeals Court. Three of the judges on that panel issued Friday’s decision.
President Trump, who nominated Barr, weighed in over the weekend, tweeting Sunday, “Death penalty! He killed and badly wounded many. Justice!”
The weekend statements from Trump, who’s up for re-election in November amid lagging poll numbers, underscored the politically fraught nature of the decision.
Daniel S. Medwed, a Northeastern University law professor who specializes in criminal procedure and appeals, said Monday via e-mail he expects the government to decide “sooner rather than later, almost surely before the presidential election in November. That said, [it is] virtually impossible to envision that a new trial would occur until 2021 at the earliest, so if the Oval Office has a new occupant in January, that person might have to revisit the decision about whether to pursue a new sentencing trial.”
In federal court, where Tsarnaev was convicted, prosecutors normally consider whether such a ruling sets a broader precedent that “may engender a lot of new litigation” the government may be concerned about, Lyon said.
In the Tsarnaev case, she said, where the appeals court faulted the presiding judge for seating potentially biased jurors, “that’s not new law, it’s not breaking new ground,” so “they might not want to seek review.”
Tsarnaev, and his older brother, Tamerlan, set off two bombs at 2:49 p.m. on April 15, 2013, near the Boston Marathon finish line, killing 8-year-old Martin Richard of Dorchester, Lingzi Lu, a 23-year-old student from China, and Krystle Marie Campbell, 29, of Arlington. The Tsarnaevs also fatally shot MIT police Officer Sean Collier while they were on the run, prosecutors said.
The elder Tsarnaev died in a confrontation with police in Watertown days after the blasts. Boston police Officer Dennis Simmonds suffered a head injury during the Watertown firefight and died almost a year later following a medical emergency at the police academy gym in Hyde Park.
On Friday, the appeals court ruled the younger Tsarnaev was entitled to a new penalty phase trial in part because Judge George A. O’Toole Jr., who presided over Tsarnaev’s 2015 trial, “did not meet the standard” of fairness during jury selection and should have allowed the defense to tell jurors about Tamerlan’s alleged involvement in a 2011 triple homicide in Waltham.
Medwed said prosecutors have 90 days from the issuance of Friday’s ruling to seek Supreme Court review by filing what’s known as a writ of certiorari.
“Given that scores of cert petitions vie for the Court’s attention, and that it grants very few, it is statistically a long shot that the Supreme Court will take the case,” Medwed wrote. “But, of course, it is a high-profile case with some important legal issues, especially related to jury selection, so it’s not inconceivable that the Court would grant cert.”
Patricia Campbell, the mother of Krystle Campbell, told The Boston Globe after Friday’s ruling came down, “I don’t even know if I’d waste my time going” to another trial. “The government’s just wasting money. He should be dead by now for what he did.”
The family of Martin Richard wrote in a previously published Globe essay that they favored “the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.”