A federal appeals court on Thursday ordered the judge who oversaw Boston Marathon bomber Dzhokhar Tsarnaev’s trial to investigate the defense’s claims of juror bias and determine whether his death sentence should stand.
A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals did not throw out Tsarnaev’s death sentence. Defense lawyers had pushed for that while claiming bias by two people who sat on the jury that convicted him for his role in the bombing that killed three people and injured hundreds near the marathon’s finish line in 2013.
But the appeals court found that the trial judge did not adequately probe Tsarnaev’s allegations, and sent the case back to the judge for a new investigation. If the judge finds that either juror should have been disqualified, he should vacate Tsarnaev’s sentence and hold a new penalty-phase trial to determine whether Tsarnaev should be sentenced to death, the appeals court said.
“And even then, we once again emphasize that the only question in any such proceeding will be whether Tsarnaev will face execution; regardless of the outcome, he will spend the rest of his life in prison,” it said.
The U.S. Attorney’s office in Massachusetts declined to comment Thursday. The Justice Department can either ask the full 1st Circuit to hear the matter or go to the U.S. Supreme Court. Lawyers for Tsarnaev didn’t immediately respond to emails seeking comment on the decision.
It’s the latest twist in the long-running case that has already been argued in front of the U.S. Supreme Court once. The high court in 2022 reinstated the death sentence imposed on 30-year-old Tsarnaev after the 1st Circuit threw out the sentence in 2020. The circuit court found then that the trial judge did not sufficiently question jurors about their exposure to extensive news coverage of the bombing. The Supreme Court justices voted 6-3 in 2022 when they ruled that the 1st Circuit’s decision was wrong.
The 1st Circuit took another look at the case after Tsarnaev’s lawyers urged it to examine issues the Supreme Court didn’t consider. Among them was whether the trial judge wrongly forced the trial to be held in Boston and wrongly denied defense challenges to seating two jurors they say lied during questioning.
Despite a moratorium on federal executions imposed by Attorney General Merrick Garland, the Justice Department has continued to push to uphold the death sentence in Tsarnaev’s case. The moratorium came after former President Donald Trump’s administration put to death 13 inmates in its final six months.
Oral arguments before the three-judge 1st Circuit panel more than a year ago focused on two jurors Tsarnaev’s lawyers say were dishonest during the lengthy jury selection process.
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