Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev said Thursday that the case was tainted when the presiding judge refused to change the trial venue and allowed jurors to serve who appeared to have lied during the selection process.
Those were two key arguments put forward in an approximately 500-page brief that Tsarnaev’s taxpayer-funded legal team filed in the US Court of Appeals for the First Circuit, where Tsarnaev is challenging his death sentence.
“This case should not have been tried in Boston,” the brief said. “Forcing this case to trial [in 2015] in a venue still suffering from the bombings was the District Court’s first fundamental error, and it deprived Tsarnaev of an impartial jury and a reliable verdict, in violation of the Fifth, Sixth, and Eighth Amendments.”
Tsarnaev’s due process rights were further eroded, the brief said, by two problem jurors.
“Juror 286, the foreperson, had published two dozen Twitter posts about the bombings, including one that called Tsarnaev a ‘piece of garbage’ and another that described being ‘locked down’ with her family” during the manhunt, the filing said. “Yet during voir dire, she swore that she had neither ‘commented on this case’ online nor been asked to ‘shelter in place.’ ”
Juror 138 also wasn’t truthful, according to Tsarnaev’s appellate lawyers.
“Likewise, Juror 138 disobeyed the Court’s instructions by starting and contributing to a Facebook discussion about this case, where one of his friends urged him to ‘play the part,’ ‘get on the jury,’ and ‘send’ Tsarnaev ‘to jail where he will be taken care of,’ ” the brief said. “Yet this juror swore that he had not ‘talked to anybody’ about this case and that none of his Facebook friends were ‘commenting about this trial.’ ”
The court, the brief said, “ignored uncontroverted evidence” that the two jurors had lied during the selection process and allowed them to remain on the panel.
Tsarnaev’s attorneys further cast blame for the April 15, 2013, bombings, which killed three people and wounded hundreds more, on Tsarnaev’s older brother and co-assailant, Tamerlan, who died in a confrontation with police days after the blasts.
The brothers also killed an MIT police officer.
Tsarnaev’s lawyers wrote in Thursday’s brief that the trial judge committed a “grave error” by barring the defense from telling jurors that Tamerlan was linked to a 2011 Waltham triple murder before enlisting Dzhokhar Tsarnaev into his plan to bomb the race.
“This proof went to the heart of [Tsarnaev’s] defense: that Tamerlan was a killer, an angry and violent man; that he conceived and led this conspiracy,” the brief said. “The exclusion of this mitigating evidence violated the Eighth Amendment and yielded a verdict unworthy of confidence.”
Tsarnaev, 25, was convicted during a high-profile trial in federal court in Boston in 2015 and sentenced to death for his role in the bombings. He’s currently incarcerated at a federal supermax prison in Colorado.
The government will file its formal reply to the brief from Tsarnaev’s attorneys before oral arguments are held at the appellate court in Boston. A date for that hearing hasn’t been set.
Regarding issues of trial venue, alleged juror lies, and Tamerlan’s culpability, Tsarnaev’s lawyers wrote that “these three errors resulted in a fundamentally unfair proceeding that ‘damages the credibility of the American judicial system.’ So do the dozen other errors set forth in this brief.”
The attorneys conceded that their client “admitted heinous crimes, but even so — perhaps especially so — this trial demanded scrupulous adherence to the requirements of the Constitution and federal law. Again and again this trial fell short. Tsarnaev is entitled to relief.”