Court orders new review of possible juror bias in Tsarnaev case; says he will spend the rest of his life in prison regardless, but might be spared execution

A federal appeals court in Boston concluded today that a lower-court judge needs to consider whether two jurors in the trial of convicted Marathon murderer Dzhokhar Tsarnaev might have been biased - which could lead to a new sentence in which Tsarnaev spends the rest of his life in prison, rather than being executed for what he and his brother did.

The re-examination of the jurors will only affect the "penalty phase" of his 2015 trial, but not the underling guilty verdicts on more than two dozen counts, the Court of Appeals for the First Circuit in Boston said in its ruling today. The court had earlier lifted Tsarnaev's death sentence, but the Supreme Court ruled in 2022 that he should die.

In its ruling today, the appeals court said the judge in Tsarnaev's trial should have spent more time probing whether two jurors might have had reasons to deny they had posted anything untoward about Tsarnaev or the trial on social media while jury selection was still going on:

When Tsarnaev presented the district court with plausible claims of juror bias, the court was obliged to investigate those claims. And we conclude that the district court's investigation fell short of what was constitutionally required. This conclusion on its own does not require vacatur of Tsarnaev's death sentence and a new penalty- phase proceeding. Rather, we remand this case to the district court to determine whether either juror should have been stricken for cause on account of bias. If and only if the district court's investigation reveals that either juror should have been stricken for cause on account of bias, Tsarnaev will be entitled to a new penalty-phase proceeding. 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.

The court rejected his lawyers' arguments that the trial should never have been held in the city where he and his brother set bombs that killed three and injured scores during the 2013 Boston Marathon and across the river from where the two murdered an MIT police officer in their escape attempt that ultimately ended with one brother running over the other before being discovered hiding in a boat in Watertown, saying pre-trial surveys had shown the Boston area had "several million people" who remained open to not simply demanding death for the remaining brother.

That same data also showed that public awareness of the case and attitudes concerning it in, for example, Western Massachusetts, or even New York City, were not materially different than they were in Boston.

Also:

Tsarnaev's contention that Boston jurors would view the bombings as an attack of Boston qua Boston overlooked the fact that, as he himself wrote, his intended victim was America; i.e., jurors in any venue in the United States could view the bombings as an attack on their polity.

At issue for the appeals court were two specific jurors:

After the district court provisionally qualified Jurors 138 and 286, but before the parties exercised their peremptory strikes, Tsarnaev's counsel discovered postings on those jurors' social media pages regarding the bombings and the district court proceedings. Tsarnaev's counsel moved to strike the jurors for cause. In the alternative, his counsel asked that the district court permit further questioning of the jurors in light of the discovery of their social media postings. The district court denied these requests. In so doing, it did not adequately explore Tsarnaev's claims of juror bias. We therefore remand to the district court to conduct such an investigation.

It turns out that Juror 138 had posted on Facebook he was going in for jury selection in the case, filled out a lengthy questionnaire on his views, was told in very clear terms not to discuss the case with anybody while he was under consideration and then discussed jury selection with his friends in that Facebook discussion. Some 18 days later, the judge questioned him on whether he used Facebook:

THE COURT: Do you comment on public affairs or anything like that?
[JUROR 138]: Yeah, I see what my friends are doing and comment on that.
THE COURT: Anybody commenting about this trial?
[JUROR 138]: No.

The justices concluded the judge should have probed the man's online activity more carefully for possible bias:

It is one thing to have friends who say how to decide a case. It is quite another to engage in communication about the case after being instructed not to do so, and then feel compelled to cover up those communications when asked point-blank by the court.

Juror 286, meanwhile, had tweeted and re-tweeted extensively on the day of the bombings and for several days and months after, posting the sort of things lots of Bostonians were tweeting - the pain and anguish, the joy at Tsarnaev's capture and, later, over Martin Richard's sister singing the national anthem at Fenway.

On January 5, 2015, Juror 286 showed up at the courthouse and completed her juror questionnaire. She disclosed that she used Facebook, Instagram, and Twitter. In response to the question asking "[i]f you have commented on this case in a letter to the editor, in an online comment or post, or on a radio talk show, please describe," she answered "don't believe I have."

The court continued:

The posts themselves are not particularly strong indicators of bias. Many of them were not Juror 286's own words but rather retweets of what others have said. And it would be natural for Juror 286 -- like many others whose city had been the location of such a horrific event as the marathon bombings -- to feel scared while the situation was developing, to stay abreast of the activities during the aftermath, and to share in a sense of community pride and resilience in the years following. Again, the critical issue here is not the posts themselves but instead the reason for their nondisclosure. If Juror 286 intentionally answered the question dishonestly, thinking that discovery of her posts referring to Tsarnaev as a "piece of garbage" and repeatedly invoking the "Boston Strong" spirit could disqualify her from serving as a juror, then that would be a powerful indicator of bias.