A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.
The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.
"A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 224-page opinion.
The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.
Jurors across the country — but especially Boston — were inundated by graphic photos, commentary about the crimes, even articles featuring city leaders saying the death penalty might be right in this case.
By keeping the trial in Boston, O’Toole was obligated to question each juror explicitly about what jurors had read and heard about the case.
"But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."
But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve.
The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.
Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later.
Tamerlan was killed during the manhunt for the brothers.
In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.
Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again.
“It’s been seven years, and we live it every day," Norden said. "But somewhat of normalcy has set in. And if you kind of move on and move forward, and then have to go through it all over again? Really, it just sucks."
Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision.
"We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."
The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced.
"To end the anguish, drop the death penalty," they wrote.
Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury.
Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial.
It would be the second, recent high-profile death penalty retrial in Massachusetts. Gary Lee Sampson pleaded guilty to the 2001 carjack killings of two Massachusetts men and the strangulation of a third man, and was then sentenced to death by a jury. But that death penalty sentence was overturned after a federal judge found that one of the jurors at his first trial had lied about her background.
Sampson was sentenced to death in a new trial in 2017.
Among the factors at play in what happens next is a new U.S. Attorney. Andrew Lelling has replaced U.S. Attorney Carmen Ortiz, who oversaw the prosecution in the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision.
Ortiz, now a partner with the law firm Anderson & Kreiger, said Friday that the decision is unfortunate and disappointing.
"In every single case you strive to get a jury that's going to be fair and impartial," she said. "In particular, when you're thinking about a death penalty case and someone's life is at stake, you strive to do that even more so."
Ortiz said she's thinking of the victims and their families, and the emotion of the trial in 2015.
Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision.
"The court rightly acknowledges, as do we, the extraordinary harm done to the victims of the bombing," the statement said. "It is now up to the government to determine whether to put the victims and Boston through a second trial, or to allow closure to this terrible tragedy by permitting a sentence of life without the possibility of release."
Lelling hasn't shied away from controversial cases. He pursued federal charges against a Massachusetts state court judge accused of helping a defendant in her courtroom avoid arrest by an immigration officer. And he pursued a corruption case initially filed under Ortiz against two Boston mayoral aides charged with extortion.
Former federal prosecutor and criminal defense attorney Brad Bailey expects the U.S. Attorney's office will retry the death penalty portion of the case, as it did in the case of Sampson.
"Having gone through the approval process and having gotten it once, I would be surprised if they didn't retry the death penalty phase and try to get it reinstated," Bailey said. "The issue of whether they can get a fair trial will likely again be an issue raised by the defense team. It's going to be a while before we know, but I ultimately think that we're going back to the death penalty phase and doing it all over again."
Former U.S. Attorney Carmen Ortiz oversaw the prosecution of Tsarnaev. She says the decision on whether the federal government will seek the death penalty in a new penalty phase of the trial will be considered in the highest levels of government.
"The reality is that this will really be weighed heavily by the U.S. Department of Justice ... The United States Attorney General ... makes the ultimate decision as to whether or not the death penalty is going to be sought," Ortiz said. "This will be a long, involved process. There will be a lot of different individuals, including the current U.S. attorney, and depending upon what happens in the November election, you could have a different administration, possibly, considering those options and that question."
Gov. Charlie Baker, who supported the death penalty against Tsarnaev, said in a statement that the bombing devastated people across the state.
"Victims and their families deserve justice and I hope this case is prosecuted to the fullest extent of the law," he said.
Boston Mayor Marty Walsh said he reached out to the families of the victims, and didn't want to comment on the judges' ruling until he had spoken to all of them.
"I think the concern that some families had in the very beginning [was] that this day was going to come where they were going to have to relive another trial," he said. "They shouldn't have to relive a trial."
Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison.
"Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote.
With another trial, however, he will be back in a Massachusetts courtroom.
With reporting from WBUR reporter Deborah Becker and the WBUR newsroom.