The Fraternal Order of Police this week urged the US Supreme Court to reverse a lower court ruling that vacated Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence, writing in court papers that leaving the appellate decision intact will “impede efforts” to secure justice for slain law enforcement officers in future cases.
The organization, which has 356,000 members nationwide, advanced the argument in an amicus brief filed Monday, which is weighing whether or not to reverse the lower court ruling. That lower court ruling, while tossing the death penalty, didn’t change the fact that Tsarnaev won’t ever be released from custody.
The “erroneous decision of the court of appeals [in Boston] will impede efforts to secure justice for law enforcement officers injured or killed in the line of duty,” the brief said.
In its ruling last year, the US Court of Appeals for the First Circuit ruled that George A. O’Toole Jr., the judge in Tsarnaev’s 2015 trial, “did not meet the standard” of fairness while presiding over jury selection.
In ordering that Tsarnaev’s sentence be considered anew, the court found that at least two of the 12 jurors did not fully disclose what they knew about the high-profile case, or discussed it on social media before they were chosen to decide Tsarnaev’s fate.
Tsarnaev’s attorneys showed during the final stages of the jury selection process that 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.
The court held that O’Toole erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially.
The police organization said in its brief that the appellate ruling requires judges in high-profile cases to grant defense requests to ask “each prospective juror” about the pretrial publicity they’ve seen.
“Many cases in which the defendant is prosecuted for murdering a law-enforcement officer will naturally fit the court of appeals’ concept of a ‘high-profile’ case,” the brief said. “If left uncorrected, the categorical rule announced by the court of appeals will become mandatory in virtually every case tried in federal court in the First Circuit where, as here, the United States seeks to hold a criminal defendant responsible for the murder and maiming of federal or state law enforcement personnel.”
Tsarnaev and his older brother, Tamerlan, set off pressure cooker bombs near the finish line on April 15, 2013, that killed three people and wounded hundreds more. The brothers also fatally shot Sean Collier, MIT police officer, while they were on the run in Cambridge. Tamerlan Tsarnaev was killed in a confrontation with police in Watertown days after the blasts.
Also Monday, the American Bar Association filed a separate amicus brief with the Supreme Court that the lawyers’ group said was in favor of neither Tsarnaev nor the government.
But the ABA said in the filing that a juror’s positive response to the question of whether they can serve impartially in a high-profile case isn’t reliable.
“In light of the extraordinary pretrial publicity in this particular case, it would have aided the court and parties to question jurors about the specific content of whatever media they read, saw, or heard,” the ABA said. “Where a questionnaire is used to facilitate voir dire (as was done here), it is particularly helpful to include initial content questions to facilitate individual follow-up questions. Such questioning would have been helpful in providing the court with the foundation for determining whether each juror actually retained an open mind notwithstanding exposure to pretrial publicity.”