Lawyer for Boston Marathon bomber Dzhokhar Tsarnaev on Tuesday asked a federal appeals court to overturn the 29-year-old’s death sentence on jury misconduct charges, just months after it was revived by the country’s highest court.
Tsarnaev is making renewed efforts to avoid execution after the Supreme Court last year reversed his death sentence for his role in the bombing that killed three people and injured hundreds near the finish line of the marathon in 2013 had set power.
His attorneys are now questioning issues not considered by the Supreme Court, including whether the trial judge wrongly denied his challenge from two jurors who defense attorneys say lied during the jury questioning.
A juror said she had not commented on the case online but retweeted a post calling Tsarnaev a “piece of junk.” Another juror said none of his Facebook friends had commented on the trial, although one urged him to “act the role” so that he could be included on the jury and Tsarnaev be sent to “jail where he will be taken away,” they say defender . Tsarnaev’s lawyers raised those concerns when selecting the jury, but the judge decided not to investigate them further, they say.
“This case was heard in Boston with the promise that despite the extraordinary impact of the Marathon bombing on this community,” a jury poll would remove any unqualified, Tsarnaev’s attorney Daniel Habib told judges at the 1st US Circuit Court of Appeal. “That promise was not kept.”
The Justice Department has continued to push to uphold Tsarnaev’s sentence, even after Attorney General Merrick Garland imposed a federal moratorium on executions last year while the department reviews its policies and procedures. The department has not said how long it could maintain the hold after former President Donald Trump’s administration executed 13 inmates over the past six months.
President Joe Biden has said he opposes the death penalty and will work to end its use, but he has done nothing about it during his tenure. And the moratorium isn’t stopping federal prosecutors from seeking the death penalty, as they are in the case of a man currently on trial for killing eight people on a New York City bike lane in 2017.
William Glaser, a Justice Department attorney, told the appeals court that the trial judge did nothing wrong in dealing with the jury. Glaser acknowledged that the jury made inaccurate testimonies, but said other information the jury gave the court indicated they just didn’t remember everything perfectly.
“There is no indication in this record that the inaccuracies were the kind of knowing dishonesty that would result in disqualification,” Glaser said.
But Judge William Kayatta Jr. asked how the trial judge could know without further examining Tsarnaev’s claims. And Judge O. Rogeriee Thompson told the Justice Department attorney she found it hard to see why Tsarnaev couldn’t at least plausibly claim that the juror who was told to “play the part” knowingly lied.
“If, for example, the Facebook friend had said, ‘Come on the jury and make sure the death penalty doesn’t get passed,’ I can’t believe you wouldn’t be arguing here the opposite of what you’re arguing now'” , she said to Glaser.
Some of the bombing survivors who attended the hearing met briefly with Massachusetts Attorney Rachael Rollins outside the courtroom afterwards. Marc Fucarile, who lost a leg in the blast and suffered other serious injuries, said he came to the arguments to let judges know survivors were “still watching what they’re doing”.
“At a certain point we have to draw a line in the sand and say enough is enough. There’s no question what he did,” Fucarile told The Associated Press.
Tsarnaev’s lawyers admitted early in his trial that he and his older brother Tamerlan Tsarnaev detonated the two bombs that killed Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford, Massachusetts; and 8-year-old Martin Richard from Boston.
However, they have argued that he should not be killed, saying his brother radicalized him and was the mastermind of the attack.
Tsarnaev was convicted in 2015 on all 30 counts against him, including conspiracy and use of a weapon of mass destruction and the murder of Massachusetts Institute of Technology Police Officer Sean Collier during the Tsarnaev brothers’ escape attempt. Tamerlan Tsarnaev died in a shootout with police a few days after the April 15, 2013 bombing.
The 1st Circuit in 2020 overturned Tsarnaev’s death sentence and ordered a new penalty-phase trial to decide whether he should be executed, noting that the judge had not questioned the jury sufficiently to determine whether they had a comprehensive Reporting of the bombing was suspended. But Supreme Court justices agreed by a 6-3 vote with the Biden administration that the 1st Circuit ruling was wrong.