The July 31, 2020, Boston Marathon Bombing Capital Sentencing Reversal Shows the Unintended Consequences of Appellate Decisions and How a 50-Year Old Case Concerning a Reputed Organized Crime Boss May Save the Surviving Boston Marathon Bomber's Life

In United States v. Dzhokar Tsarnaev, 2020 U.S. App. Lexis 24226, First Circuit #16-6001 (Tsarnaev III), filed on July 31, 2020, the United States Court of Appeals for the First Circuit ordered a new capital sentencing proceeding on the six charges which the trial jury in the Boston Marathon bombing case had voted unanimously be punished by execution. The jury declined to vote for a death sentence on the other eleven death-eligible counts. The First Circuit Court’s order arose from its concern that the jury was not been screened adequately to be fair and impartial in imposing death sentences on the surviving bomber, Dzhokhar A. Tsarnaev. Mr. Tsarnaev’s brother, Tamerlan Tsarnaev, according to Dzhokar Tsarnaev’s indictment, died in the course of an encounter with police after the bombing. The appellate court found that in selecting the jury, the federal district court trial judge failed to ask sufficient questions of all jurors to learn of their general knowledge of the case, a gateway procedure required by First Circuit precedent in such cases to ferret out bias. The appellate court also concluded that the federal district court trial judge erred when choosing not to strike for cause two jurors whom the defense team flagged prior to being seated for providing misleading and/or false answers to voir dire (preliminary examination of jurors) questions regarding their social media posts relating to the bombing.

The same appellate court, the First Circuit, which overturned the capital sentences, may have unintentionally contributed to bringing that outcome about due to its decisions in jury selection arising from mandamus petitions filed by the defense team before the jury was even seated. See United States v. Tsarnaev, 780 F.3d 14 (2015) (Tsarnaev II); US v. Tsarnaev, 775 F.3d 457 (2015) (Tsarnaev I). Mandamus is an extreme remedy, which historically has been limited to situations where a parties’ right to relief is clear and the lower court’s errors are obvious. Dzhokar Tsarnaev’s defense team twice resorted to that procedure in late 2014 and early 2015 in failed attempts to change the venue (location) of the trial to a place where choosing an unbiased jury would be easier to do. Press coverage of the bombing had been intense in Boston, and elsewhere. In fact, the entire Boston metropolitan area had been locked down after the bombing while police hunted for the brothers.

In both Tsarnaev I and II, the First Circuit rebuffed efforts to move the trial to another jurisdiction before jury selection had been completed, despite, among other things, the parallels with the 1995 Oklahoma City courthouse bombing which was moved to Denver due to pretrial publicity and the need to obtain a fair and impartial jury. In Tsarnaev II, the First Circuit spent quite a bit of time in its published opinion complimenting the federal district court on its handling of jury selection. It discussed its review of the trial court record to date screening jurors, and literally found no fault with it. It stated that “statistics reveal that hundreds of members of the [jury] venire [pool] have not formed an opinion that he is guilty.” Tsarnaev II, Slip op. at p. 15. The opinion minimized the importance of the jury pool’s overall exposure to publicity about the bombing. “[T]he dissents confuses mere exposure to publicity “with disqualifying prejudice – only the second of which, when widespread throughout the jury pool, is particularly relevant to a presumption of prejudice.” Slip op. at 25. “The bombings in Boston, the murder of a policeman, and the other criminal events charged did, in fact, take place and were heavily covered by the media around the world… “[T]hat is a separate matter from the matter of whether the petitioner is guilty of the crimes charged. . . Seeing media coverage of the former does not mean the viewer is prejudiced. Further, many in the provisional jury pool did not follow that coverage.” Id. at n. 13. As pointed out in Judge Torruellla’s concurrence in Tsarnaev III, slip op at 1984 – 185 (he had dissented in Tsarnaev I and II, finding that a change in venue was essential to assure selection of a fair and unbiased jury), in Tsarnaev II the court stated that it had read the jury voir dire record to date and “the process ha[d] been thorough and appropriately calibrated to expose bias, ignorance, and prevarication.” The overall approach could be summed up with the phrase, nothing to see here, move along to trial, please.

Basically, Tsarnaev II gave the district court an attaboy in its jury selection procedures. However, a careful reading of Tsarnaev III shows that at the point in jury selection reached by the district court by the end of February 2015, and reviewed by the Tsarnaev II panel prior to its February 27, 2015, decision, affirming those procedures, the errors in jury selection which the First Circuit relied upon to reverse the capital sentencing verdicts in Tsarnaev III were already apparent in the record before the appellate court in Tsarnaev II, although they were apparently not specifically identified by the defense team in its mandamus briefs. Tsarnaev III, slip op 29 – 31, discusses how in December 2014, in proceedings reviewed by the Tsarnaev II panel, the district court chose not to include questions in a questionnaire going to all jurors which asked the jurors to state what they knew “about the facts of this case before coming to court today (if anything).” The district court stated such questions were unnecessary because the key issue was determining whether, despite such publicity, a juror could still be fair and impartial. Thus, asking jurors whether they could be fair and impartial and by avoiding getting into what the jurors knew about the case by not asking such open-ended questions, time could be saved. Again, with full knowledge, perhaps not directed by a mandamus claim by the defense team, Tsarnaev II gave the district court’s jury selection practices and procedures it had reviewed a clean bill of health.

However, in Tsarnaev III, slip op. at 73, the First Circuit found that a new capital sentencing proceeding was required because the district court did not allow enough questioning of the potential jurors about their knowledge of the case before the potential jurors came to court. Tsarnaev III stated that such questioning was required by United States v. Patriarca, 402 F.2d 314 (1st Cir. 1969) (Patriarca Sr. was a reputed la costa nostra organized crime boss with rumored ties to politicians, entertainers, and law enforcement officers and others throughout his lifetime). Tsarnaev III stated that such questioning of potential jurors was required per the Patriarca case (not from the constitution) based on the First Circuit Court of Appeals’ right to supervise proceedings conducted in the district courts within the First circuit. Tsarnaev III also reversed Tsarnaev’s three convictions for use of a firearm in committing an offense.

The Government can seek rehearing (before the three-Judge First Circuit deciding panel) or rehearing en banc (before the entire First Circuit Court) and can also try to escape from retrying Tsarnaev’s capital sentencing by a filing a timely petition for writ of certiorari to the Supreme Court.

Nathans & Ripke LLP is a highly respected advocate for individuals and businesses involved in a broad spectrum of criminal and civil disputes, forfeitures, and attorney grievance matters. Nathans & Ripke LLP attorneys have taken on some of the hardest and complicated matters over the years. One example is Attorney Robert Biddle’s efforts in a five-month federal criminal trial in which his dogged advocacy was likely responsible for his client avoiding the death penalty. With offices in Baltimore, Annapolis, and Greenbelt, we represent clients across Maryland (both federal and state courts), the Washington D.C. area, and several other federal courts across the country.


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