Prosecutors were “courting Islamophobia” during the trial of Boston Marathon bomber Dzhokhar Tsarnaev, a proceeding tainted by two lying jurors and the wrongful concealment from the jury of evidence that Tsarnaev’s older brother and co-assailant previously committed a triple murder, Tsarnaev’s legal team argued Thursday.
Those assertions were among the key arguments in a legal brief that Tsarnaev’s lawyers submitted to the US First Circuit Court of Appeals, which will ultimately decide whether to uphold or vacate Tsarnaev’s conviction and death sentence for his role in the April 2013 bombings.
The blasts, set off by Tsarnaev and his now-dead brother, Tamerlan, killed 8-year-old Martin Richard of Dorchester; Lingzi Lu, a 23-year-old Boston University graduate student from China; and Krystle Campbell, a 29-year-old restaurant manager from Medford.
The brothers also killed MIT police Officer Sean Collier during their time on the run. Tamerlan Tsarnaev was killed in a clash with police in Watertown days after the bombings.
Thursday’s document came in response to prosecutors’ rebuttal to the initial appellate brief that Dzhokhar Tsarnaev’s lawyers filed in December.
Dzhokhar Tsarnaev, now 26, is incarcerated at a federal supermax prison in Colorado. Oral arguments in the appeal are scheduled for Dec. 12.
In Thursday’s brief, which stretched to more than 200 pages, Tsarnaev’s lawyers accused prosecutors of laying the groundwork “for a death sentence fueled by passion and prejudice by courting Islamophobia during the guilt phase.”
That was done, Tsarnaev’s lawyers wrote, by eliciting expert testimony about ISIS, a terror group that didn’t meaningfully exist at the time of the bombings. In addition, Tsarnaev’s team wrote, prosecutors improperly showed jurors a slideshow during guilt-phase closing arguments of “gruesome images” of the Marathon victims, which the government juxtaposed “with an unrelated Islamic song” that investigators took off Dzhokhar Tsarnaev’s computer.
There was no evidence the song had been accessed on the computer after January 2012, said Tsarnaev’s lawyers, who wrote that prosecutors “chose a foreign-sounding Islamic song, juxtaposed with horrific images of the dead and dying, to unnerve the jurors. Exploiting religious bias in this way was unconstitutional.”
Prosecutors defended their use of the song in their June filing.
“The government did not commit prosecutorial misconduct by using during the guilt-phase closing argument a PowerPoint presentation that played a 19-second audio clip of a nasheed (a type of Islamic song) over photos of Tsarnaev and the bombing’s aftermath,” prosecutors wrote. “The nasheed and the photos were already in evidence. The presentation was not designed to appeal to anti-Islamic prejudices, but was tied specifically to the trial evidence regarding Tsarnaev’s inspiration for the bombing.”
On Thursday, Tsarnaev’s attorneys also reiterated their argument in the initial appellate brief that the verdict and sentence were tainted because two jurors, including the foreperson, allegedly lied during jury selection.
Asked during the selection process whether she had commented on the case, the foreperson, a Dorchester resident identified as Juror 286, “hid 22 Twitter posts in which she had mourned the victims, praised police officers who would testify at trial, and called Tsarnaev a ‘piece of garbage,’ ” Tsarnaev’s attorneys wrote.
And a second juror, identified as Juror 138, “started a Facebook discussion about the jury selection process, during which a friend urged him to ‘play the part,’ ‘get on the jury,’ and ‘send’ Tsarnaev ‘to jail where he will be taken care of,’ ” Tsarnaev’s lawyers wrote.
But when the prospective juror was questioned about his background and potential biases, “. . . he falsely swore that he had followed the District Court’s instructions not to ‘allow yourself to be exposed to any discussions of this case in any manner,’ and falsely denied that his Facebook friends had been ‘commenting about this trial,’ ” the lawyers wrote.
Prosecutors had addressed the issues surrounding the two jurors in their June filing, as well.
“Because Juror 286 had not tweeted about Tsarnaev’s criminal proceedings, she had not tweeted about the ‘case’ in that sense,” prosecutors wrote. “Moreover, she might have understood the question’s reference to ‘a letter to the editor, in an online comment or post, or on a radio talk show’ . . . as referring to something more formal than a tweet or retweet.”
Regarding Juror 138, prosecutors wrote, “The district court asked whether Juror 138 had ‘been able’ to ‘avoid any discussion of the subject matter of the case with anybody,’ and he replied, ‘I haven’t talked to anybody about it.’ . . . That was not dishonest.”
Prosecutors said Juror 138 “never endorsed” the “flippant and joking remarks” left by other commenters on his Facebook page, and he also said during jury selection that “ ‘I wasn’t going to make any decisions until I’d seen everything that was presented . . . in front of me.’ ”
Also Thursday, Tsarnaev’s attorneys reiterated their contention that the trial judge improperly barred the defense from telling jurors that Tamerlan Tsarnaev allegedly committed a triple murder in Waltham in 2011 in the name of “jihad,” or holy war.
“At trial, the jurors heard evidence that [Dzhokhar] was inspired by jihad and voluntarily caused horrific suffering,” Tsarnaev’s attorneys wrote. “But the aggravating effect of those facts would have been muted had the jurors known that the older brother who radicalized and led [Dzhokhar] to participate in the bombings had himself already committed murder in the name of jihad.”