BOSTON (CN) — Nearly 10 years after Dzhokhar Tsarnaev detonated two bombs at the finish line of the Boston Marathon, the First Circuit heard another round of arguments Tuesday about whether he should be put to death.
This time the issue was whether two of the jurors should have been excluded because they lied when they said they hadn’t discussed the case on social media. The jury foreperson had in fact published 22 tweets in which she praised the police, grieved the victims and suggested that Tsarnaev was a “piece of garbage.” She also lied about whether she had sheltered in place during a police search.
A second juror claimed that he hadn’t discussed the case on Facebook and that none of his Facebook friends had commented on the trial, but while at the courthouse he started a Facebook discussion during which a friend urged him to “play the part,” “get on the jury” and send Tsarnaev “to jail where he will be taken care of.”
“It’s hard to understand why that’s not a plausible or colorable claim” of juror misconduct, U.S. Circuit Judge O. Rogeriee Thompson said.
“It’s fair to say it was inaccurate,” U.S. Attorney William Glaser admitted. “But jurors don’t always understand questions with the precision that we use as lawyers. There was no indication of knowing dishonesty, and even knowing dishonesty doesn’t prove bias.”
“But that doesn’t help you,” replied U.S. Circuit Judge William Kayatta, who like Thompson is an Obama appointee.
“If there’s evidence of inaccuracy," Kayatta continued, "we don’t know why," and prior cases suggest that the trial judge was obligated to ask the jurors to explain the discrepancy.
Thompson added: “When you have information that contradicts what they say on voir dire, that’s a problem. It’s colorable. Without more information, how do you know it’s not bias?”
Tsarnaev was 19 when he and his older brother, Tamerlan, detonated a pair of homemade pressure cooker bombs that killed three people and injured hundreds on April 15, 2013. By the time authorities captured Dzhokhar over three days later, he and his brother had murdered a campus police officer, kidnapped a graduate student and fought a street battle with police. Tamerlan died in the firefight, run over by his brother with a stolen car.
At his trial, Dzhokhar admitted guilt but claimed that he had been pressured and radicalized by his brother. The Tsarnaev family are ethnic Chechens and immigrated to America in the early 2000s as refugees from Kyrgyzstan.
Though jurors sentenced Dzhokhar to death in 2015, Thompson, Kayatta and a third judge, Juan Torruella, vacated that result in 2020 on the basis of two trial errors. The Supreme Court reinstated the sentence in March 2022, and the case is now back before the First Circuit for Tsarnaev to test other claims of error.
Glaser did his best to minimize the jurors’ conduct, arguing that the assumption of bias “would require the blackest interpretation of the record.” He said the Facebook comments about lying to get on the jury amounted to “joking around” and that the juror had also disclosed information that might have made it less likely that he’d be selected.
The foreperson retweeted a post that said, "Congratulations to all of the law enforcement professionals who worked so hard and went through hell to bring in that piece of garbage,” which Glaser said was mostly a nice comment about police and didn’t necessarily amount to an endorsement of the “garbage” comment. But Thompson seemed unconvinced.
“Trying to get on the jury is one thing, but the issue is, does the person hold positions that make them unable to be fair and impartial,” she said. “When you say ‘garbage,’ that expresses a position as to the person on trial.”
“It was a retweet, and she didn’t disclose it 20 months later,” replied Glaser. “There are many reasons why she might not have recalled it 20 months later.” He added: “If you retweet, that doesn’t mean you endorse. That’s generally understood. And the question asked was whether she had commented on the case in an online post. Even if she recalled them, she might not have considered the retweets as being comments on the case.”
Tsarnaev’s lawyer, Daniel Habib of the Federal Defenders of New York, said the death sentence should be vacated but at a minimum the judge should be ordered to recall the two jurors eight years later and question them about their responses.
Thompson suggested that the jurors might take the Fifth Amendment to avoid perjury charges, although Habib said the statute of limitations had probably run.
Kayatta pressed Glaser about why the prosecution at trial had been opposed to asking the jurors to explain their responses. “It seems to me the answer is, given what they said, the government counsel darn well wanted those people on the jury,” he commented.
Glaser said the prosecution could have had many reasons for not pursuing further questioning in a case where the jury selection took 21 days and involved 1,373 potential jurors.
Kayatta then took a step back and asked Glaser if it was the government’s position that the judges shouldn’t take any more care than usual in ensuring a fair trial even though this was a death penalty case.
“Correct,” Glaser said simply.
U.S. Circuit Judge Jeffrey Howard, the third judge on the panel Tuesday, seemed somewhat less sympathetic to Tsarnaev than Kayatta and Thompson. A George W. Bush appointee, Howard replaced Judge Torruella, who died in fall 2020.
Habib’s brief raised other claims of error as well, although the juror-bias issue consumed the entire hour of oral argument. One of the other claims was that surveillance video of Tsarnaev casually buying milk at a Whole Foods after the bombing — which was used to dramatic effect in the sentencing phase — was illegally obtained because the fact that Tsarnaev went grocery shopping was part of a coerced confession. The government argued that it would have found out about the milk-buying excursion anyway, but Habib said that’s not true because the evidence that the government had legally obtained pointed to “the wrong Whole Foods.”
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