Boston Marathon Bomber Scores Inquiry on Claims of Juror Bias

Boston Marathon bomber Dzhokhar Tsarnaev persuaded a divided federal appellate court to order an investigation into whether two of the jurors who recommended the death penalty should have been removed for bias.

The ruling Thursday offers Tsarnaev, who set off one of the bombs that killed three people at the 2013 Boston Marathon, a new path to undoing his death sentence after the US Supreme Court reinstated it in 2022.

The US Court of Appeals for the First Circuit said it’s leaving the death sentence intact during the proceedings.

“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,” Judge William J. Kayatta Jr. said in the majority opinion. “And even then, we once again emphasize that the only question in any such proceeding will be whether Tsarnaev will face execution.”

During jury selection at Tsarnaev’s trial, his attorney discovered Juror 138 exchanged messages on Facebook about the proceedings, after jurors were instructed by the judge not to communicate about the case, the First Circuit said. One message from the juror’s friend read, “Play the part so u get on the jury then send him to jail where he will be taken care of,” the First Circuit said.

“Juror 138 assured the court that he had not talked to anyone about the case, and when asked whether anyone had commented ‘about this trial’ on Facebook, he responded ‘No,’” the First Circuit said.

Tsarnaev’s attorney at the time moved to strike the juror for cause or be allowed to question the juror further, but the district court denied the requests.

“In so doing, it did not adequately explore Tsarnaev’s claims of juror bias,” Kayatta Jr. said. “We therefore remand to the district court to conduct such an investigation.”

The second juror in question had written on social media about the bombings, the First Circuit said, including posting the message, “Congratulations to all of the law enforcement professionals who worked so hard and went through hell to bring in that piece of garbage.”

But in a court questionnaire about if she’d made social media comments about the case, she said “don’t believe I have,” the First Circuit said.

Tsarnaev’s defense attorney at the time discovered the posts and also asked the court to strike the juror or allow him to question her and was denied.

“There are various possible explanations for Juror 286’s questionnaire answer,” the First Circuit said. “But the only way to shed more light on which one is the truth is to ask Juror 286, which the district court declined to do.”

If the new district court probe establishes that either juror “suffered from a disqualifying bias,” or that “faded memories render the court unable to determine whether or not a juror suffered from such a bias,” the court should vacate Tsarnaev’s death sentence and conduct a new proceeding for his punishment the court said.

Judge Jeffrey R. Howard dissented, saying the district court hadn’t abused its discretion in stopping the attorney from questioning the jurors.

Judge O. Rogeriee Thompson joined in the majority opinion.

Federal Defenders of New York represent Tsarnaev.

The case is United States v. Tsarnaev, 1st Cir., 16-06001, 3/21/24