Lawyers for admitted Boston Marathon bomber Dzhokhar Tsarnaev will have one hour in December to try to convince a federal appellate court that their client’s conviction and death sentence should be thrown out.
Judge Juan R. Torruella of the US Court of Appeals for the First Circuit issued a brief order this week setting oral arguments in Tsarnaev’s appeal for Dec. 12 at 9:30 a.m.
“Each side shall be afforded one hour of argument,” the order said. But Tsarnaev, who is incarcerated at a federal supermax prison in Colorado, probably will not return to Boston for the proceeding.
Defendants typically aren’t present for appellate hearings before the First Circuit, said Daniel S. Medwed, a professor at Northeastern University School of Law and former associate appellate counsel at the Legal Aid Society Criminal Appeals Bureau in New York City.
“It typically takes at least several months to get an opinion [after oral arguments], but it can vary,” Medwed said.
And even after the ruling is issued, the case could take many more years to be resolved if Tsarnaev’s current appeal fails.
The taxpayer-funded legal team for Tsarnaev, 26, has already filed hundreds of pages of written arguments in the appeal, asserting the case should not have been tried in Boston and that two jurors lied during jury selection, among other claims.
In their reply brief, prosecutors said: “Tsarnaev received a fair trial in Boston, and the district court did not abuse its discretion by refusing to move the trial elsewhere. The jury was selected after a careful and searching voir dire, and the jurors who tried and sentenced Tsarnaev were unbiased.”
Tsarnaev was convicted in 2015 and sentenced to death for his role in the April 15, 2013 bombings that killed Martin Richard, an 8-year-old third-grader from Dorchester; Lingzi Lu, a 23-year-old Boston University graduate student from China; and Krystle Campbell, a 29-year-old restaurant manager from Medford. Hundreds of others were injured in the blasts. Tsarnaev and his older brother, Tamerlan, also killed a Massachusetts Institute of Technology police officer, Sean Collier, while they were on the run.
Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the bombings.
Dzhokhar Tsarnaev’s lawyers don’t dispute his involvement in the bombings but maintain he fell under the sway of his domineering older brother. Tsarnaev’s lawyers wrote in a December brief that the trial judge committed a “grave error” by barring the defense from telling jurors that Tamerlan was linked to a Waltham triple murder in 2011 before enlisting his younger brother in his plan to bomb the Marathon.
“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,” Tsarnaev’s lawyers wrote. “The exclusion of this mitigating evidence violated the Eighth Amendment and yielded a verdict unworthy of confidence.”
But prosecutors said in their reply brief filed in June that Dzhokhar Tsarnaev “quietly adopted a radical Islamic ideology” while a student at the University of Massachusetts Dartmouth. “While projecting an image of a laid-back partier, he was reading and watching radical Islamic propaganda,” the government wrote.
And, prosecutors said, any judicial error in excluding the Waltham evidence was “harmless.”
“Tsarnaev was unable to muster any evidence suggesting that Tamerlan intimidated or coerced him into bombing the Boston Marathon, much less that the Waltham murders somehow contributed to that coercion,” prosecutors wrote.
If Tsarnaev’s First Circuit appeal fails, he “would have 90 days to submit a ‘writ of certiorari’ asking the Supreme Court to take the case,” Medwed said in an e-mail. “Cert petitions are longshots, statistically at least, because the court receives thousands annually and only takes 80 or fewer.”
If the high court declines to consider the case, Tsarnaev would have one year to “file a federal habeas corpus petition in [federal] district court,” Medwed said. “The upshot is that this case has many miles to go before a final resolution.”
The scheduling of oral arguments before the First Circuit came days after US Attorney General William Barr announced a Justice Department review of death penalty policy had been completed, clearing the way for executions of federal death row inmates to resume.
Since the federal death penalty was restored in 1988, the government has put to death only three defendants, with the last one being executed in 2003.
Barr told the Bureau of Prisons to schedule executions starting in December for five men, all convicted of murdering children. Legal specialists told the Globe last week that Barr’s action will have little immediate bearing on the case against Tsarnaev, who, if unsuccessful in his appeals, would be years away from an execution date.