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Federal appeals court vacates Tsarnaev death sentence, orders new penalty-phase trial

Boston Marathon bomber Dzhokar Tsarnaev's death sentence has been tossed by a federal appeals court in Boston.
Boston Marathon bomber Dzhokar Tsarnaev's death sentence has been tossed by a federal appeals court in Boston.AP

Forcing open a painful chapter of Boston’s history, a federal appeals court on Friday overturned the death sentence of Dzhokhar Tsarnaev, who was convicted five years ago of collaborating with his brother to plant two bombs near the Boston Marathon’s finish line, and ordered a new trial to determine whether he should be put to death.

In a 182-page ruling that infuriated some victims, the US Court of Appeals for the First Circuit ruled that George A. O’Toole Jr., the judge in Tsarnaev’s 2015 trial, “did not meet the standard” of fairness while presiding over jury selection.

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“A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” wrote Judge O. Rogeriee Thompson, who also called the bombings “one of the worst domestic terrorist attacks since the 9/11 atrocities.”

The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others.

“Just to be crystal clear … Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him,” Thompson wrote.

But the ruling, which drew divided reactions from legal experts, raised the specter of another painful and protracted ordeal for the families of the injured and the dead, some of whom had warned against precisely this outcome.

“I just don’t understand it,” said Patricia Campbell, whose daughter Krystle was killed in the bombings. “It’s just terrible that he’s allowed to live his life. It’s unfair. He didn’t wake up one morning and decide to do what he did. He planned it out. He did a vicious, ugly thing.”

In ordering that Tsarnaev’s sentence be considered anew, the court found that at least two of the 12 jurors did not fully disclose what they knew about the high-profile case, or discussed it on social media before they were chosen to decide Tsarnaev’s fate.

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Tsarnaev’s trial attorneys showed during the final stages of the jury selection process that one of the jurors, the foreperson, hid that she had posted on Twitter about being “locked down” during the manhunt for Tsarnaev, and that she called him a “piece of garbage” after the attacks.

The court held that O’Toole erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially.

“A judge cannot delegate to potential jurors the work of judging their own impartiality,” Thompson wrote.

Tsarnaev has been held at the US Penitentiary Administrative Maximum Facility in Colorado, the nation’s highest-security prison, a so-called Supermax known as the Alcatraz of the Rockies.

Campbell said she was not sure whether she would return to court to try to persuade another judge to reimpose the death penalty.

“I don’t even know if I’d waste my time going,” Campbell said. “The government’s just wasting money. He should be dead by now for what he did.”

Bill Richard, whose 8-year-old son Martin was killed in the bombings, declined to comment. He referred the Globe to an essay he and his wife, Denise, wrote shortly before Tsarnaev was sentenced to death, in which they called for his life to be spared.

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“We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal,” they wrote at the time.

They added: “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”

A spokeswoman for US Attorney Andrew E. Lelling’s office said prosecutors are reviewing the ruling and would have more to say in the coming weeks. Two of Tsarnaev’s appellate lawyers couldn’t immediately be reached for comment.

Tsarnaev, now 27, was sentenced to death in 2015. He and his older brother, Tamerlan, also killed an MIT police officer, Sean Collier, while they were on the run. Boston Police Officer Dennis Simmonds, who suffered a head injury when Tamerlan Tsarnaev detonated an explosive device during a shootout in Watertown days after the bombings, died a year later from those injuries.

Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the blasts. Dzhokhar Tsarnaev eluded police initially but was captured later the same day.

In challenging his death sentence, lawyers for Tsarnaev had argued that holding the trial in the city that endured the terrorist attack deprived him of his right to an impartial jury.

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Nancy Gertner, a former federal district court judge who now teaches criminal law at Harvard Law School, said, “The notion that a jury from Boston could fairly judge someone who made us all vulnerable seemed to me to be absurd.”

In the ruling, the court found that O’Toole had mishandled the process of voir dire, when jurors are asked questions to determine whether they are suitable, particularly in cases that have received intense media coverage. Despite “a diligent effort,” O’Toole did not meet that standard, the court held.

“In a case like this, a judge must conduct a very searching and robust jury selection process to ensure that potential jurors haven’t been tainted by negative pretrial publicity,” said Daniel S. Medwed, a professor of law and criminal justice at Northeastern University. “And Judge O’Toole cut the defense off at the pass at times, when it sought to do a deeper dive into what specifically prospective readers of the media may have read or heard about the case. The ultimate punishment deserves the ultimate process, and I think ... that the trial process was lacking in some respects, especially in the area of jury selection.”

The defense had argued at trial that Dzhokhar Tsarnaev was led in the Marathon plot by his domineering, violent older brother; prosecutors contended that the younger brother was a willing participant who became radicalized on his own.

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The ruling also suggested jurors should have been told about the older Tsarnaev brother’s alleged involvement in a 2011 triple murder in Waltham.

“If the judge had admitted this evidence, the jurors would have learned that Dzhokhar knew by the fall of 2012 that Tamerlan had killed the drug dealers in the name of jihad,” the decision read. “They also would have known that it was only after these killings that Dzhokhar became radicalized as well: Evidence actually admitted showed that Dzhokhar first flashed signs of radicalization — as is obvious from his texts on jihad — after spending a holiday break with Tamerlan several weeks or so after learning about the Waltham murders.”

The omitted evidence “might have tipped at least one juror’s decisional scale away from death,” he added.

Thompson was joined on the three-judge panel by Judges Juan R. Torruella and William J. Kayatta Jr.

In response to the ruling, Governor Charlie Baker, who supported the decision to impose the death penalty, said in a statement: “The Boston Marathon bombing was an act of terrorism that devastated families and residents across the Commonwealth and beyond. Victims and their families deserve justice and I hope this case is prosecuted to the fullest extent of the law.”

Mayor Martin J. Walsh wrote on Twitter: “Nothing will ever replace what we lost in 2013. But with each new day, the Boston community continues to find new strength and healing in one another. That’s something that no one can ever take from us.”

Some who have followed the case closely urged prosecutors not to seek a new trial, noting that Tsarnaev will remain behind bars for the rest of his life.

Robert M. Bloom, a professor of law at Boston College Law School, cited the essay in The Boston Globe by the Richards — whose daughter, then age 7, lost a leg during the attack — that called for Tsarnaev to be sentenced to life in prison.

“The Richards’ letter ... graphically demonstrates what is happening in this case: Appeals and more pain associated with this case,” he said. “Hopefully the government will not put the victims and the city through another trial.”


David Abel can be reached at david.abel@globe.com. Follow him on Twitter @davabel. Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe. Tonya Alanez can be reached at tonya.alanez@globe.com or 617-929-1579. Follow her on Twitter @talanez. Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia.