Appeals court orders new trial for Dzhokhar Tsarnaev, but only to determine whether he is put to death or spends the rest of his life in prison

A federal appeals court said today that Dzhokhar Tsarnaev did not get a fair trial on the question of whether he deserves to die for his role in the Boston Marathon bombings and the death of an MIT police officer and so ordered a new trial to settle the matter.

“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,” the US Court of Appeals for the First Circuit in Boston said, proceeding to express its disgust at the actions of Dzokhar and Tamerlan Tsarnaev, to the point of graphically describing the way their pressure-cooker bombs ended the lives of Krystle Campbell, Lingzi Lu, and Martin Richard on the day of the Marathon and the ensuing manhunt, during which they gunned down MIT police officer Sean Collier before Tamerlan Tsarnaev was killed in a shootout and run over by his brother, who was eventually found in that boat in Watertown.

The facts of today’s appeal are painful to discuss. We apologize for their graphic detail.

After describing what some of the survivors went through, the three judges paused a moment in its narrative:

Now brace yourself for how Marathon-goers Krystle Campbell, Lingzi Lu, and Martin Richard spent the last few minutes of their lives.

And after providing the awful details, the judges continued:

Not only did the Tsarnaev brothers kill Krystle Campbell, Lingzi Lu, and Martin Richard, they also consigned hundreds of others to a lifetime of unimaginable suffering. Some lost one or more limbs, blown off as they stood near the finish line or amputated later because they were so badly mangled. Others lost sight, still others hearing. And years after the bombings, many still had debris in their bodies. One survivor had shrapnel in her that occasionally worked its way to the surface and had to be removed; another had a ball bearing stuck in his brain – to give just a few examples.

The problem, they said, was that after Dzhokhar Tsarnaev was convicted, the judge who selected jurors for a new panel to determine whether he deserved the death penalty failed to press jurors enough to ensure they would give him an unbiased trial – a standards set during a 1969 ruling involving the case of New England mob boss Raymond Patriarca.

The standard holds that a judge should ensure each prospective juror “with a view to eliciting the kind and degree of his exposure to the case or the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change from evidence.” And that, the appeals court determined, did not happen.

Specifically, with 9 of the 12 jurors:

[T]the judge fell short on this front. To repeat what we wrote earlier, the judge qualified jurors who had already formed an opinion that Dzhokhar was guilty – and he did so in large part because they answered “yes” to the question whether they could decide this high-profile case based on the evidence. The defense warned the judge that asking only general questions like that would wrongly “make[]” the potential jurors “judge[s] of their own impartiality” — the exact error that the Patriarca line of cases seeks to prevent. But the judge dismissed the defense’s objection, saying that “[t]o a large extent” jurors must perform that function. Yet by not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint. This was an error of law and so an abuse of discretion.

The court also ruled that the judge unfairly prevented Tsarnaev, who admitted his role in the bombings, to make his mitigating case that he was a mere pawn of his brother’s by not letting him introduce testimony about a triple murder in Waltham that the dead brother had been implicated in.

The government is wrong to imply that the jury had to make leaps of imagination to connect what Tamerlan did in Waltham to his influence over Dzhokhar. 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. 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.44 So if the jurors had heard Todashev’s description of how he felt powerless to withdraw from the Waltham crimes once Tamerlan chose to turn an armed robbery into a triple murder, at least one juror might have found that Dzhokhar felt the same way when it came to the bombings in early 2013.

And if the judge had admitted the Waltham evidence — evidence that shows (like no other) that Tamerlan was predisposed to religiously-inspired brutality before the bombings and before Dzhokhar’s radicalization45 — the defense could have more forcefully rebutted the government’s claim that the brothers had a “partnership of equals.” …

Similarly, the evidence could have helped the defense counter the government’s argument that Tamerlan and Dzhokhar “bear the same moral culpability” and that Dzhokhar acted “independently” in placing the bomb at the finish line — for the evidence showed that Tamerlan, unlike Dzhokhar, had a history of horrific violence, which he justified as jihad; that Tamerlan, unlike Dzhokhar, had previously instigated, planned, and led brutal attacks; and that Tamerlan, unlike Dzhokhar, had influenced a less culpable person (Todashev) to participate in murder.

One of the three judges on the panel, Juan Toruella, wrote a partial dissent, disagreeing with the other two on the question of whether Tsarnaev could have gotten a fair trial on the death-sentence question at all in the Boston area. Toruella argued that given the intense feelings and publicity about the case in Boston – up to and including David Ortiz’s famous “This is our fucking city” declaration – were completely understandable, but made a truly fair trial for Tsarnaev impossible with a jury pool drawn from eastern Massachusetts and so Tsarnaev should have been tried somewhere else in the country.

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