October 28, 2020

Death Sentences Reversed in Dzhokhar Tsarnaev Case

Dzhokhar Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombing, had his death sentence reversed due to disregarded jury bias.

Dzhokhar Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombing, had his death sentence reversed due to disregarded jury bias.

@ Federal Bureau of Investigations (FBI)

On July 31, 2020, a three-judge panel for the First Circuit Court of Appeals vacated Dzhokhar Tsarnaev’s death sentence due to insufficient attention paid to potential juror bias during jury selection and the exclusion of relevant mitigating evidence. Mr. Tsarnaev was sentenced to death in 2015 after being convicted of multiple counts stemming from the 2013 Boston Marathon bombing. The panel decision overturned his death sentence and vacated his convictions on two of the several counts on which he had been indicted; but because the majority of the counts on which he was convicted were upheld, the ruling does not create the possibility of release. The Department of Justice appealed the decision to the U.S. Supreme Court. The appeal will be decided before the Government decides whether or not to pursue a new penalty trial.  

Given the sensational nature of the crime, Mr. Tsarnaev’s case generated an unprecedented amount of media coverage. In a motion seeking a change of venue, Mr. Tsarnaev’s trial counsel noted that there had been “near-daily pretrial publicity, including hundreds of articles in The Boston Globe” and other local newspapers about the case, as well as a multitude of online articles and social media posts. The high volume of negative pre-trial publicity raised concerns about whether potential jurors were predisposed against Mr. Tsarnaev. Judge George O’Toole, who presided over the trial in the U.S. District Court in Boston, Massachusetts, repeatedly denied defense motions to move the trial outside of Boston. In doing so, he assumed responsibility for rigorously screening potential jurors during voir dire to ensure a fair and impartial jury was selected.

In its opinion on appeal, the First Circuit Court of Appeals determined that Judge O’Toole did not go far enough in questioning potential jurors about their prior media exposure to the case to mitigate the risk of juror bias. Judge O’Toole denied defense requests to ask jurors specific questions about their knowledge of and views on the crime. Instead, he asked each juror if they could set aside their opinions and make a decision based only on the evidence presented during the trial. The Court of Appeals determined that Judge O’Toole should have asked more than a yes or no question in this regard, stating that “[d]ecisions about prospective jurors’ impartiality are for the judge, not for the potential jurors themselves.” The Court of Appeals further found that two of the jurors had not accurately represented their social media presence around the case before being empaneled, and would have been dismissed if this evidence had been known. 

The Court of Appeals also ruled that the exclusion of evidence relevant to Mr. Tsarnaev's mitigation arguments was improper. The evidence included suggestions that Tamerlan Tsarnaev, Mr. Tsarnaev’s older brother who died while attempting to escape after the bombing, had participated in a triple homicide in 2011. The defense wished to present this and other evidence in support of its mitigation theory that Tamerlan was more culpable in the crime and Dzhokhar had reason to fear his older brother. After determining that the evidence was “a waste of time” and might be confusing to the jury, Judge O’Toole excluded it. The First Circuit panel reversed, finding that “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” in a prior case.  

Mr. Tsarnaev also argued that he should be ineligible for the death penalty because he was nineteen years old when he committed the crime. Although Roper v. Simmons holds that individuals cannot be sentenced to death for crimes committed before age eighteen only, the defense argued that legal, scientific, and cultural understandings of adulthood have evolved such that persons under twenty-one years old at the time of their crime should be ineligible for execution, as well. The Court of Appeals rejected this argument, noting that it is up to the U.S. Supreme Court to determine if the ineligibility age should be changed.

The Justice Department has appealed the First Circuit’s decision to the U.S. Supreme Court. In its petition for a writ of certiorari, filed on October 6, 2020, the Government stated that the First Circuit erred in establishing an “inflexible voir dire rule that denied district courts the broad discretion to manage juries,” and did not give adequate deference to the court’s decision to exclude evidence of Tamerlan’s involvement in the 2011 triple homicide. A decision on this petition is still pending as of the publication of this piece. 

Scott Peterson Death Sentenced Overturned in California

On August 24, 2020, the California Supreme Court vacated Scott Peterson’s death sentence for the 2002 deaths of his wife Laci and their unborn son. The California Supreme Court determined that the trial court impermissibly dismissed potential jurors over their general objections to the death penalty. The court stated that “[l]ong-standing United States Supreme Court precedent makes clear that prospective jurors may not be disqualified from service in a capital case solely because of their general objections to the death penalty…even one such error requires ‘automatic reversal of any ensuing death penalty judgment.’ Here, there was not just one error; there were many.” Absent any indication that potential jurors would be unable to objectively evaluate whether a death sentence was warranted in the case, the court found that these dismissals prevented a fully impartial jury from being impaneled.

While concerns over whether the jury may have been improperly exposed to pre-trial publicity also existed in Mr. Peterson’s case, these concerns did not factor into the California Supreme Court’s decision to vacate Mr. Peterson’s sentence. Mr. Peterson was granted a change of venue early in his prosecution and motioned for a second, which was quickly denied. The California Supreme Court denied arguments that the denial of the second motion was significant, stating that “[p]recisely because this case was the subject of such widespread media attention, it is unclear what purpose a second change of venue would have served. The publicity the Peterson trial generated…was intrinsic to the case, not the place.”

On October 14, 2020, the California Supreme Court also ordered consideration of whether juror misconduct is sufficiently prejudicial to warrant a new trial. Mr. Peterson’s attorneys presented evidence that a critical juror failed to disclose involvement in a prior legal proceeding, where she sought a restraining order against her boyfriend’s ex-girlfriend who harassed her while she was pregnant. The San Mateo County Superior Court will now hold hearings on this issue before the District Attorney’s Office decides whether to re-seek the death penalty.