FILE - In this April 17, 2013 photograph, flowers and signs adorn a barrier, two days after two explosions killed three and injured hundreds, at Boylston Street near the of finish line of the Boston Marathon at a makeshift memorial for victims and survivors of the bombing. A federal appeals court has overturned the death sentence of Dzhokhar Tsarnaev in the 2013 Boston Marathon bombing, Friday, July 31, 2020, saying the judge who oversaw the case didn't adequately screen jurors for potential biases. (AP Photo/Charles Krupa, File)

Ruling renews fairness debate in Boston Marathon bomber case

August 01, 2020 - 3:13 pm

“Boston Strong” remains a “vibrant” rallying cry more than seven years after the marathon bombing killed three people and injured more than 260 others, a federal appeals court noted as it threw out the death sentence of Dzhokhar Tsarnaev.

But even as the ruling opened old wounds, it raised familiar questions about whether Tsarnaev can receive a fair hearing in the city where the bombs exploded — a community that may now be asked to relive unspeakable trauma.

The 1st U.S. Circuit Court of Appeals held Friday that jurors were not adequately screened for bias ahead of Tsarnaev's 2015 trial, describing media attention in the case as "unrivaled in American legal history.”

The three-judge panel ordered a new penalty phase — this time with more searching questions for prospective jurors — to decide whether the 27-year-old should be executed.

Tsarnaev “will spend his remaining days locked up in prison," the judges made clear, "with the only matter remaining being whether he will die by execution.”

The Justice Department is expected to appeal. Legal observers predict prosecutors will turn straight to the U.S. Supreme Court without asking for a hearing before the full 1st Circuit. The U.S. government recently resumed federal executions following a 17-year pause and, under President Donald Trump, has pursued capital punishment in an increasing number of cases.

“When it comes to death penalty cases, the U.S. Supreme Court has been much more pro-prosecution than many of the circuit courts,” said Robert Dunham, executive director of the Death Penalty Information Center.

Should Friday's ruling stand, attention will shift to whether an impartial jury can be impaneled in a city still traumatized by the 2013 attack. Tsarnaev's defense team may renew its request to transfer the case out of Boston, where they have long contended public opinion is immutably slanted.

“Everybody in the community understands where ‘Boston Strong’ came from,” Dunham said. "The question will be whether that’s so ingrained in the community that jurors can’t set it aside and fairly determine the outcome of this case.”

Tsarnaev’s case is uniquely complicated in that an entire city — if not the whole country — considered itself the target of the bombing, said George Kendall, an attorney who filed a friend-of-the-court brief contending it was a mistake to hold the trial in Boston. Prosecutors said Tsarnaev and his brother intended the attack to punish the U.S. for wars in Muslim countries.

“This was not just a horrific crime against the individuals who were killed and hurt,” Kendall said in an interview Saturday. “This was an attack on the city of Boston and a deliberate attack on its most cherished tradition.”

Robert Bloom, a Boston College law professor who has followed the case for years, said a new penalty phase would force the community to relive the bombing.

“My hope is that the government will decide not to put the victims through this again," Bloom said, noting Tsarnaev had been willing to plead guilty before trial had the government taken the death penalty off the table.

Tsarnaev's lawyer echoed Bloom in an email to The Associated Press following Friday's ruling.

“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,” David Patton wrote.

Tsarnaev's attorneys did not dispute his involvement in the attack, but argued he was less culpable than his older brother, Tamerlan Tsarnaev, who died in a gunbattle with police a few days after the bombing.

Dzhokhar Tsarnaev was convicted of 30 charges — including conspiracy and use of a weapon of mass destruction — all but a few of which were upheld in the appellate ruling.

The appellate judges differed on whether the case should be moved to another jurisdiction but noted that, “given the sizable passage of time, the venue issue should look quite different the second time around.”

“Two of the three judges indicated it was not error to have the trial in Boston, so the opinion may actually help keep it in Boston in the future," said Brian Kelly, a former assistant U.S. attorney known for his prosecution of crime boss James “Whitey” Bulger.

Marty Weinberg, a veteran defense attorney, said a second penalty phase would be “made enormously more difficult by the widespread knowledge — particularly in the Boston area — that another jury previously decided upon death.”

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Mustian reported from New York and Ring from Stowe, Vermont. AP journalist Alanna Durkin Richer contributed from West Harwich, Massachusetts.

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