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Appeals court orders judge to investigate juror bias in Boston Marathon bomber’s case

A single flower in a paper cup sat on the finish line of the Boston Marathon after the verdict in the penalty phase of the trial of the Marathon bomber in 2015.Charles Krupa

A federal appeals court Thursday ordered a judge to conduct “an appropriate investigation” into potential bias by two jurors who served on the panel that recommended the death penalty for Dzhokhar Tsarnaev, who, alongside his brother, detonated bombs at the Boston Marathon finish line in 2013 that killed three people and injured more than 260 others.

In a 2-1 decision, the US First Circuit Court of Appeals in Boston wrote that if the district court finds that the jurors were biased and should have been excused during jury selection, then Tsarnaev, 30, is entitled to a new trial on whether he should be sentenced to death or life in prison. He currently sits on death row at a federal supermax prison in Colorado.


“When Tsarnaev presented the district court with plausible claims of juror bias, the court was obliged to investigate those claims,” Judge William J. Kayatta Jr. wrote in a 74-page ruling, joined by Judge O. Rogeriee Thompson. “And we conclude that the district court’s investigation fell short of what was constitutionally required.”

In a dissenting opinion, Judge Jeffrey R. Howard wrote, “I conclude that there was ample basis for the district court to arrive at a judgment that the two jurors in question were not improperly biased, and thus the court engaged in no abuse of its exclusive power when it declined to subject those jurors to the further questioning that the majority demands.”

The long-awaited decision to send Tsarnaev’s case back to the lower court for further review comes two years after the US Supreme Court reinstated Tsarnaev’s death sentence, ruling that the appeals court had erred when it overturned that sentence on the grounds that he didn’t get a fair trial. In January 2023, defense lawyers were back before the appeals court, where they argued about a number of issues — including claims that two jurors had lied during the panel’s selection and that the trial should not have been held in the same city as the bombings.


On Thursday, the appeals court rejected the defense’s claim that Tsarnaev’s 2015 trial should not have been held in federal court in Boston, but found further inquiry was needed into claims that the trial judge, US District Judge George A. O’Toole Jr., erred by denying a defense request to excuse two jurors during jury selection for allegedly lying about social media posts.

Legal experts said the ruling shows how vital jury selection is to a fair trial.

“Imposing the ultimate punishment, death, warrants the ultimate process,” said Daniel Medwed, a professor of law and criminal justice at Northeastern University. “And given the significant lingering questions about jury selection in the original trial, this is a just result.”

“What is the purpose of questioning jurors, especially in a case as high profile as this, unless you count on the jurors giving accurate answers? Otherwise, it’s an empty ritual,” said retired federal judge Nancy Gertner, who now teaches at Harvard Law School.

“One can hardly imagine a more high-profile case than this,” Gertner said. “The task of jury selection could not have been more important.”

One juror said she had not commented about the case, but the defense found she had tweeted or retweeted 22 times about the bombings, including a retweet calling Tsarnaev a “piece of garbage,” according to court filings. Another juror said none of his Facebook friends had commented on the trial, yet one friend had urged him to “play the part” so he could get on the jury and send Tsarnaev “to jail where he will be taken care of.”


Kayatta wrote that the court had not found that either juror “manifested a disqualifying bias,” and noted there were “innocuous potential explanations for both jurors’ conduct” and answers during jury selection.

“The two jurors could have misunderstood the court’s instructions or questions, or they could have forgotten about the social media posts by the time they were summoned for voir dire,’” Kayatta wrote. “The district court’s error was in failing to conduct an inquiry sufficient to rule out the more pernicious explanations.”

The appeals court remanded the case to the district court “to determine whether either juror should have been stricken for cause on account of bias,” Kayatta wrote. “If and only if the district court’s investigation reveals that either juror should have been stricken for cause on account of bias, Tsarnaev will be entitled to a new penalty-phase proceeding.”

Tsarnaev, the son of Chyechen immigrants who was raised in Cambridge, admitted to his crimes during the trial; his lawyers argued against the death penalty, saying the then-19-year-old was influenced by his brother and therefore less responsible.

But jurors concluded he showed no remorse for his actions and should be sentenced to death for his role in the killings. He admittedly placed a bomb in a backpack in front of the Forum restaurant on Boylston Street that killed 8-year-old Martin Richard and Lingzi Lu, a 23-year-old Boston University graduate student from China.


Tsarnaev was also found responsible for killing MIT police Officer Sean Collier days after the blast while he and his brother were on the run.

Evidence showed his older brother, Tamerlan Tsarnaev, placed the bomb that killed Krystle Campbell, 29, of Arlington. Tamerlan Tsarnaev, 26, later died in a firefight with police in Watertown.

Tonya Alanez of the Globe Staff contributed to this report.

Shelley Murphy can be reached at shelley.murphy@globe.com. Follow her @shelleymurph.