As Boston marks 10 years since the city’s deadliest terrorist attack, the legal battle drags on in federal court to determine the fate of the man who, alongside his brother, detonated bombs at the Boston Marathon finish line that killed three people and injured more than 260 others.
Dzhokhar Tsarnaev, 29, continues to sit on death row at a federal supermax prison in Colorado while waiting for a ruling by the US First Circuit Court of Appeals in Boston on his request for a new trial on whether he should be sentenced to death or life in prison. Whatever the outcome, legal experts say the decision will likely be appealed — again — to the Supreme Court.
“This case will go on for at least several more years . . . because it’s a big case and a complicated case,” said George Kendall, a New York lawyer who has handled hundreds of death penalty cases. “It’s important we not rush here. The important thing is to get it right no matter what the result is.”
Tsarnaev’s latest appeal centers on whether jurors were fair and impartial when they convicted him in 2015 of 30 counts related to the bombings and found he should be put to death.
The US Supreme Court reinstated Tsarnaev’s death sentence in March 2022, ruling that a federal appeals court had erred when it overturned that sentence on the grounds that he didn’t get a fair trial. But, in January, defense lawyers were back before the appeals court, where they argued about a number of issues — including claims that two jurors had lied during the panel’s selection and that the trial should not have been held in the same city as the bombings.
“You don’t have a right to a jury that is completely ignorant about the crime, but you do have the right to a jury that is disinterested” and will decide the case based on evidence presented in court, Kendall said.
Massachusetts does not have the death penalty, but Tsarnaev was charged with crimes in the federal court system, which allows for capital punishment.
Although Tsarnaev, a son of Chechen immigrants who was raised in Cambridge, admitted to his crimes during the trial, his lawyers argued against the death penalty, saying the then-19-year-old was influenced by his brother and therefore less responsible.
But jurors concluded he showed no remorse for his actions and should be sentenced to death for his role in the killings. He admittedly placed a bomb in a backpack in front of the Forum restaurant on Boylston Street that killed 8-year-old Martin Richard and Lingzi Lu, a 23-year-old Boston University graduate student from China.
Tsarnaev was also found responsible for killing MIT police Officer Sean Collier days after the blast while he and his brother were on the run.
Three years ago, the First Circuit Court of Appeals overturned Dzhokhar Tsarnaev’s death sentence, ruling the trial judge failed to thoroughly question jurors about their exposure to publicity about the bombings and had unfairly excluded evidence that bolstered defense claims that Tamerlan Tsarnaev controlled his younger brother.
Last May, the Supreme Court reversed that decision, ruling that the judge had thoroughly questioned 256 people during three weeks of jury selection.
In January, Tsarnaev’s lawyers argued that the judge deprived him of a fair trial by denying his request to try the case outside of Boston, and by refusing to excuse two jurors who allegedly lied during jury selection.
One juror said she had not commented about the case, but the defense found she had tweeted or retweeted 22 times about the bombings, including a retweet calling Tsarnaev a “piece of garbage,” according to court filings. Another juror said none of his Facebook friends had commented on the trial, yet one friend had urged him to “play the part” so he could get on the jury and send Tsarnaev “to jail where he will be taken care of.”
Tsarnaev’s attorney, Daniel Habib, told the appeals court, “It’s difficult to imagine a more poisonous suggestion made to someone who will sit as a juror in a capital case.”
The judge denied a defense request to question the two jurors about the online comments while jury selection was still underway.
Habib argued that the case was tried in Boston on a promise that there would be an impartial jury, “despite the extraordinary impact of the marathon bombings on this community.”
“That promise was not kept while jury selection was ongoing,” Habib said.
In court filings, government attorneys argued that the district court’s “meticulous jury selection process was fully capable of identifying 12 jurors untainted by pretrial publicity.”
In regard to the two jurors, Justice Department attorney William Glaser argued one did not take Facebook comments seriously and the other may have not recalled her tweets from nearly two years prior.
He argued there was no evidence the jurors were knowingly dishonest or biased even if their answers were inaccurate when questioned in court and while filling out their jury questionnaire.
Still, former federal judge Nancy Gertner said the question of whether Tsarnaev’s trial should have been held in Boston at a courthouse located only miles from where the bombs exploded remains a key issue.
“This was not a crime against one person, this was a crime against the city,” Gertner said. “This is a venue issue like no other.”
Tsarnaev is one of 43 people on federal death row, including seven who were convicted in the 1990s, according to the Death Penalty Information Center, a Washington, D.C., nonprofit that analyzes issues concerning capital punishment.
Historically, federal executions have been rare in the United States. Only 16 have been carried out since 2001, with 13 occurring in the final six months of the Trump administration. Gary Lee Sampson, who killed three people in 2001, was the only other person sentenced to death in federal court in Massachusetts. He died in 2021 while appealing his execution.
The Biden administration imposed a moratorium on federal executions two years ago pending a review of the Justice Department’s policies and procedures, but the government has continued to defend prior death penalty convictions.
“It’s really uncertain whether an execution will ever be carried out,” said Richard Dieter, executive director of the Death Penalty Information Center.
Meanwhile, Tsarnaev remains in isolation at the US Penitentiary Administrative Maximum facility in Florence, Colo., locked up 23 hours a day.