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Federal prosecutors formally seek SCOTUS review of ruling tossing death penalty in Tsarnaev case

Yuri Gripas/Bloomberg

Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev.

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

It asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

The document also asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”

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The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection.

The appellate court ordered a new trial on the sentencing phase only, to determine whether Tsarnaev will be executed or spend the rest of his natural life behind bars.

“A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” wrote Judge O. Rogeriee Thompson, who also called the bombings “one of the worst domestic terrorist attacks since the 9/11 atrocities.”

The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others.

“Just to be crystal clear … Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him,” Thompson wrote.

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With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.

Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado.

The Justice Department had previously signaled its intent to take the matter to the Supreme Court.

Prosecutors last month said in a six-page filing with the US Court of Appeals for the First Circuit that they planned to file a writ of certiorari with the high court, which “under the extended deadline established by the Supreme Court’s order of March 19, 2020, is due December 28, 2020.”

"The Court vacated Tsarnaev’s death sentences based on the district court’s failure to ask prospective jurors about the content of the media coverage they had seen and heard about the case,” said the September filing from the Justice Department. “The Supreme Court has held that the Constitution does not require trial courts to question potential jurors about the specific contents of the news reports to which they had been exposed.’”

Globe correspondent Jeremy C. Fox contributed to this report.


Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.