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OPINION

Prosecutors’ excessive zeal during the Tsarnaev trial

Their overreach during the first trial may now require a second one.

Aloke Chakravarty delivered the prosecution's closing argument in the trial of Dzhokhar Tsarnaev.
Aloke Chakravarty delivered the prosecution's closing argument in the trial of Dzhokhar Tsarnaev.Art Lien

News reports following the First Circuit Court of Appeals’ decision granting convicted Boston Marathon bomber Dzhokhar Tsarnaev a new death penalty sentencing hearing rightly focused on the anguish of victims who may face another court proceeding and relive the trauma they experienced on April 15, 2013.

Law enforcement was quick to express disappointment, some going so far as to blame the appellate judges for the victims’ ordeal should there be a second trial. Rick DesLauriers, who led the FBI’s Boston office in 2013, called the ruling an “unfortunate example of judicial activism.”

The court’s careful 224-page opinion tells a different story.

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At two critical moments in the 2015 trial, Tsarnaev’s defense lawyers made requests to ensure that the jury would be fair, and that jurors be given all the facts needed to decide whether Tsarnaev should live or die.

Prosecutors objected to both. While their tactics may have helped win a death sentence, they also created a major risk that any death verdict would not stand on appeal, which is what happened last week.

The two issues? The first concerned questions Judge George A. O’Toole Jr. asked potential jurors. The defense requested that the judge ask jurors a simple, open-ended question: “[W]hat did you know about the facts of this case before you came to court today (if anything)?” The answer would let O’Toole decide whether the juror could be fair. Prosecutors objected because hearing jurors’ answers to that question “would take forever.”

O’Toole agreed, asking instead, “Whether as a result of what you have seen or read in the ... media you have formed an opinion” about Tsarnaev’s guilt or the penalty, and whether you can set that opinion aside? That question left it up to potential jurors to decide whether they could be objective; the court would never know the information or misinformation to which they had been exposed. Nearly 50 years of precedent shows that the prosecutor was wrong, for reasons the First Circuit called “obvious.”

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The second issue? In another high-wire tactical move, the prosecution refused to share evidence of the alleged role Tamerlan Tsarnaev, Dzhokhar Tsarnaev’s older brother, played in a triple homicide in Waltham in 2011. This was information the government was constitutionally obliged to provide. Prosecutors even opposed defense efforts to introduce the limited evidence they had about the crime to show that Tamerlan took the lead in the Marathon bombings as well, while Dzokhar — a college freshman with no known history of violence — had a lesser role. (Remember: This was not about Dzhokhar Tsarnaev’s innocence — though he pleaded not guilty, the defense admitted his guilt — but to help the jury decide whether he should receive the death penalty.) The prosecution argued that the information about Tamerlan’s alleged role in the Waltham killings was “unreliable,” never mentioning that FBI agents had relied on the same evidence in applying for a warrant before another judge to search Tamerlan Tsarnaev’s car.

The First Circuit’s opinion spells out why the government was wrong. A vote to impose the death penalty must be unanimous. Evidence of Tamerlan’s lead role in Waltham could “have persuaded at least one juror” that Dzhokhar “did what he did because he feared what his brother might do to him if he refused.”

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Of course, if the judge had followed the defense requests, the jury might still have voted for the death penalty. But because the government persuaded him to accept its aggressive and risky approach, there is now the possibility of a new sentencing trial — with all the burden that places on victims.

In December 2013, before the Department of Justice announced it would seek the death penalty for Tsarnaev, the Boston Bar Association published a report critiquing the death penalty. Its words seem prescient: “[W]hen federal death penalty advocates speak about achieving justice for victims … their statements should come with a clear and conspicuous disclaimer. A decision by federal prosecutors to seek the death penalty is almost certain to lead to years of expensive, time-consuming litigation.”

Sadly, that is what happened. The government’s decision to pursue the death penalty — despite Tsarnaev’s offer to plead guilty and serve the rest of his life in prison, without parole — made the 2015 trial necessary. And the prosecutors’ excessive zeal during that trial, not judicial activism, may now require a second one.

Nancy Gertner, a former US District Court judge, is a senior lecturer at Harvard Law School. Martin F. Murphy, a former state and federal prosecutor, is a partner at Foley Hoag. Michael Keating is a partner at Foley Hoag.