Dzhokhar Tsarnaev, the Boston Marathon bomber, has been cooling his heels in the Supermax in Colorado but will soon return, at least virtually, to the consciousness of the city and people he so cruelly attacked.
On Dec. 12, Tsarnaev’s lawyers will argue before the US Court Appeals for the First Circuit at the federal courthouse, where he was convicted and sentenced to death, that he did not get a fair trial or sentence.
Now, it may seem ludicrous that someone whose own lawyers admitted at trial that he planted bombs and took part in a terrorist plot that eventually left five people dead should come before a court saying he got a raw deal.
But this isn’t about whether Tsarnaev is guilty.
This is about whether the trial should have been held in Boston in the first place.
Not surprisingly, attention on the recent unsealing of documents in the case focused on the grisly murder of three men in Waltham allegedly carried out by Tsarnaev’s older brother, Tamerlan, who was killed in a shootout with police after the bombings.
Tsarnaev’s lawyers argue that Judge George O’Toole, who presided over the trial, was wrong to exclude evidence of Tamerlan’s role in those murders because it would allow jurors to decide whether his big brother being a cold-blooded killer might have influenced Dzohkhar’s decision to take part in the Marathon attack.
But, for all the notoriety of those murders, the real bombshell in the defense arguments is that two of the jurors who voted to sentence him to death allegedly lied when they were being questioned by O’Toole during the voir dire process to determine whether they could be impartial.
Neither of the jurors has been identified.
Tsarnaev’s lawyers contend that the jury foreperson “failed to disclose that she and her family had sheltered in place in their Dorchester home during the manhunt” for the bombers. They also contend the foreperson “falsely denied calling Tsarnaev ‘a piece of garbage’ on Twitter,” where her posts mourned the bombing victims and praised police officers who would later testify at trial.
They said another juror had engaged in Facebook discussions about the case but lied about it before the judge.
Those lawyers note that the foreperson lived in the same Boston neighborhood as Martin Richard, who at 8 was the youngest of the three people killed by the bombings, and that two other jurors lived in Malden and Franklin, where people wounded in the bombings lived. Might this sense of connection to the killed and injured have unduly influenced their decision to convict and sentence Tsarnaev to death?
His lawyers insist it was impossible for him to get a fair trial, or a fair sentence, in the eastern district of Massachusetts, from which the jury pool was drawn. They wrote that 99.7 percent of potential jurors admitted exposure to pretrial publicity and that less than 5 percent “could definitively say they had not already formed an opinion that Tsarnaev was guilty.”
“In these extraordinary circumstances, no voir dire could ensure an impartial jury,” Tsarnaev’s lawyers wrote.
In their response, prosecutors insist that trying the case in Boston was proper and that the Waltham murders were irrelevant. They will have their work cut out for them at the Dec. 12 hearing to rebut allegations about juror misconduct.
Former federal judge Nancy Gertner read the defense filings and said she was astonished by the alleged juror misconduct.
“If there was ever a case for change of venue, it’s this case,” Gertner said. “In one sense the city was a victim. Everyone around here was affected by it.”
Reversal of verdicts are rare. But Tsarnaev lawyers believe they have compiled enough evidence to, at the least, save his life.
Unlike Martin Richard, Krystle Campbell, Lu Lingzi, Sean Collier, and DJ Simmonds, the Tsarnaev case is still very much alive.
Kevin Cullen is a Globe columnist. He can be reached at email@example.com.