Judge moves to protect privacy of two jurors at center of bias probe involving trial of Boston Marathon bomber

A bouquet of flowers lies on the memorial in front of the former Forum Restaurant, the site of the second Boston Marathon bombing.John Tlumacki/Globe Staff

A federal judge on Wednesday ordered lawyers in the case of Boston Marathon bomber Dzhokhar Tsarnaev to submit all future filings under seal to protect the privacy of two jurors as he conducts an investigation into whether they were biased during the 2015 trial.

US District Judge George A. O’Toole Jr., who presided over the death penalty trial, said the investigation ordered by a federal appeals court “will involve some intrusion on the private lives of two jurors in question.”

He ordered the prosecution and defense team not to contact the two jurors while the review is underway.

“There should be no explanation to the wider world who they are,” O’Toole said during the brief hearing in US District Court in Boston. “They are citizens and they deserve to be respected.”

Tsarnaev, 31, was sentenced to death for detonating bombs, along with his brother, at the finish line of the Boston Marathon in April 2013 that killed three people and injured more than 260 others

In a 2-1 ruling in March, the US First Circuit Court of Appeals found that O’Toole failed to adequately investigate claims that two jurors were biased before denying a defense request to excuse them during jury selection. It sent the case back to O’Toole to conduct “an appropriate investigation” into potential bias by the two jurors who didn’t disclose social media posts they made about the case prior to being chosen for the jury.

If he concludes they were biased and should have been stricken from the jury, then, according to the appeals court, Tsarnaev is entitled to a new trial on whether he should be sentenced to death or life in prison.

Tsarnaev, 31, who remains on death row at a supermax federal penitentiary in Colorado, was not present at the hearing.

Tsarnaev’s lawyers told O’Toole they plan to file a motion urging him to recuse himself from the case, based on comments he made after the verdict during a podcast and at public events.

Attorney Deirdre von Dornum, who represents Tsarnaev, didn’t provide any details about the judge’s remarks, but said they may cause the public to question his “impartiality” in Tsarnaev’s case.

Assistant US Attorney Nadine Pellegrini said the government was unaware of any remarks made by O’Toole that would warrant his recusal and believes the defense’s request is “meritless.”

O’Toole indicated he wasn’t aware of what statements the defense was referring to. He gave the defense until Sept. 3 to file its recusal motion, and told the government to respond by Sept. 17. He said those motions should also be filed under seal.

“From here on out, all filings are to be done under seal unless otherwise noted,” O’Toole said. “It’s very important there be no external things happening that could disturb the integrity of the process.”

The proceedings mark the latest chapter in a legal saga that has involved a flurry of appeals that have already reached the US Supreme Court.

Mikey Borgard, who was a 21-year-old Suffolk University college student when the bombs exploded and suffered permanent hearing loss and PTSD, sat quietly in the court gallery yesterday with another survivor who declined to be identified.

After the hearing, Borgard, now 33 and living in West Roxbury, said, “It brings up a lot of memories I’d rather bury, but it’s important for me to be here.”

Borgard said he strongly opposes the death penalty and “I don’t want to see someone executed on my behalf.”

But, he said he respects the beliefs of other survivors who support the death penalty, and recognizes there are many people who suffered more severe injuries than he did.

Tsarnaev, the 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 older 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.

Evidence showed his older brother, Tamerlan Tsarnaev, placed the bomb that killed Krystle Campbell, 29, of Arlington. Tamerlan Tsarnaev, 26, later died in a firefight with police in Watertown.

In 2020, the First Circuit Court of Appeals cast aside the jury’s verdict and vacated his death sentence, ruling that he didn’t get a fair trial. But, two years later, the US Supreme Court reinstated Tsarnaev’s death sentence, ruling that he received a fair trial by an impartial jury. In January 2023, 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.

In the March ruling, the appeals court found the trial judge erred by denying a defense request to excuse the two jurors during jury selection without thoroughly investigating claims that they lied about social media posts.

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.”

The appeals court found that O’Toole should have questioned the jurors further to determine whether they misunderstood the questions, forgot about the social media posts, or answered the questions dishonestly because they believed it would increase their chances of getting on the jury.

“If the investigations establish that either juror suffered from a disqualifying bias, or that faded memories render the court unable to determine whether or not a juror suffered from such a bias, the court should at that point vacate Tsarnaev’s death sentence and only then conduct a new penalty-phase proceeding,” the appeals court wrote.