The Justice Department will again seek the death penalty for Dzhokhar Tsarnaev, who was convicted of carrying out the 2013 Boston Marathon bombing, Attorney General William Barr said Thursday, leaving some survivors of the devastating attack reeling at the specter of a painful new trial.
Prosecutors said they would ask the US Supreme Court to review a federal court ruling from July that tossed Tsarnaev’s death sentence and ordered a new trial to determine if he should be executed for a series of violent attacks that led to the deaths of five people and wounded more than 260 others.
“We will do whatever’s necessary,” US Attorney General William Barr said in an interview with the Associated Press. “We will take it up to the Supreme Court and we will continue to pursue the death penalty.”
The decision means the Tsarnaev case could drag on for years, legal observers said. Survivors and families of the victims had been divided over pushing for the death penalty. And the prospect of an possible second trial to decide Tsarnaev’s fate concerned even some who supported the decision.
Patricia Campbell, whose 29-year-old daughter, Krystle, was killed near the finish line, said she wasn’t sure how to respond.
“I just hope they get it over and done with quickly, and that he doesn’t keep re-appealing,” said Campbell, 61, of Medford. “Ultimately, I hope he gets what he deserves.”
Campbell said she wasn’t sure she could attend a new trial. “I went through a lot of depression, and lost a lot of sleep from this,” she said.
Survivor Laurie Scher said she was “shocked and sickened” by Barr’s announcement. She has thought about the bombings every day since a circuit court overturned the death sentence.
“PTSD has reared its ugly head again,” said Scher, 70, of Boston. “This is actually pretty devastating.”
Scher was among several survivors who spoke with US Attorney Andrew Lelling of Massachusetts earlier this month. She said most didn’t support taking the case back to court, and Lelling told them that he would take their feelings into consideration as he planned the next step in the case.
Lelling said in a statement Thursday night that despite the concerns raised by some survivors, prosecutors will pursue an appeal because of “the severity of Tsarnaev’s crimes place him in that narrow category of criminals for whom death is a proportional punishment.”
“Our hope is that this will result in reinstatement of the original sentence and avoid a retrial of the death penalty phase,” Lelling said.
Liz Norden, whose two sons each lost their right leg in the bombing, said she was “shocked” to hear of Barr’s decision. She had been in favor of reinstating the death sentence, but thought prosecutors would decline to appeal.
“I don’t know if happy about it is the best way to express it, but I think this is the right outcome,” said Norden, 57, of Melrose, who has long supported the death penalty. “I believe this is the right punishment. As hard as it will be, I plan to attend the trial.”
Lawyers who have followed the case appeared unsurprised by Barr’s announcement.
“The DOJ deciding to pursue the death penalty against Tsarnaev, whether through a Supreme Court appeal or a retrial, is the correct path to take,” said Robert Fisher, a former federal prosecutor. “This man committed an absolutely horrific crime, and jurors selected with excruciating care heard overwhelming evidence against the defendant and unanimously decided he should be put to death.”
But whether that would ever lead to a new trial hinges on a political question, as much as a legal one.
“It seems virtually impossible that a new trial could actually take place until well after the November presidential election,” said Carol S. Steiker, director of the criminal justice policy program at Harvard Law School. “Given that inevitable delay, the divisions and ambivalence among the victims, and the tremendous costs — both emotional and financial — that a new sentencing would entail, it is hard to see this decision as anything other than a gesture of symbolic politics.”
Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said it was unclear how a Biden administration, if elected, would proceed, noting that President Obama’s attorney general at the time, Eric Holder, initially sought the death penalty.
”In my judgment, there’s virtually no chance that the Supreme Court would take this case, based on the distinct facts of the case,” she said. “There are no larger questions. That makes this an empty gesture — an announcement for the benefit of the election.”
Under Barr, the Justice Department has again begun carrying out federal executions, putting three men to death so far and scheduling at least three others next week and in September.
A three-judge panel of the 1st US Circuit court ruled on July 31 that the judge who oversaw the 2015 trial did not adequately question potential jurors about what they had read or heard about the highly publicized case.
The defense acknowledged that Dzhokhar Tsarnaev and his older brother, Tamerlan, carried out the attack on April 15, 2013, but sought to portray the elder Tsarnaev as the radicalized mastermind who lured his impressionable younger brother into violence.
Tamerlan Tsarnaev, 26, died following a gunfight with police in Watertown and being run over by his brother as he fled. Police captured a bloodied and wounded Dzhokhar Tsarnaev hours later hiding in a boat parked in a nearby backyard.
The younger Tsarnaev, now 27, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the death of the MIT police officer during the brothers’ getaway attempt. The appeals court upheld all but a few of his convictions.
Killed in the bombing were Campbell; Lingzi Lu, a 23-year-old Boston University graduate student from China; and 8-year-old Martin Richard, watching the Marathon with his family. Massachusetts Institute of Technology police Officer Sean Collier was shot to death in his cruiser days later, and a Boston police officer died a year later of head injuries sustained during the Watertown confrontation.
Describing media attention in the case as “unrivaled in American legal history,” the appeals court said US District Judge George O’Toole fell short in running a jury selection process “sufficient to identify prejudice.”
The panel also found that O’Toole erred in refusing to let the defense tell jurors about evidence in an earlier crime tying Tamerlan Tsarnaev to the killings of three people in Waltham in 2011.
“If the judge had admitted the Waltham evidence — evidence that shows (like no other) that Tamerlan was predisposed to religiously-inspired brutality before the bombings and before Dzhokhar’s radicalization — the defense could have more forcefully rebutted the government’s claim that the brothers had a ‘partnership of equals,’” Judge O. Rogeriee Thompson wrote in the ruling.
John Pucci, a former federal prosecutor in the Springfield area, said Barr’s decision comes as no surprise.
“They are bloodthirsty,” Pucci said, pointing to the decision to resume federal executions after 17 years. “They’re not in a million years, in this politically charged time, going to walk away from executing Dzhokhar. They would consider that a triumph.”
More appeals are now likely, Pucci said, meaning the process could drag on for years.
"It's an appeal to the Supreme Court," he said. "I mean we're talking about five to seven years, easy."
For some survivors, that makes the road ahead seem very long.
Beth Bourgault, 65, of Lynn, who suffered severe leg injuries from bomb shrapnel, was deeply disappointed — though not surprised — by the decision.
“It’s very unsettling,” Bourgault said. “My heart just breaks for the families who lost so much, and that they have to keep going through this. We’re looking at years of this not going away. I’m very unhappy.”
Milton Valencia of the Globe staff contributed to this report. Material from the Associated Press was used in this report.
Correction: Due to an editing error, an earlier version of this story incorrectly attributed a phrase to Massachusetts US Attorney Andrew Lelling.
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