BOSTON (CN) — Fighting for a retrial of the Boston Marathon bomber, a lawyer told the First Circuit on Thursday morning that it violated Dzhokhar Tsarnaev’s rights to try him so close to the site of the largest terrorist attack since 9/11.
"This case should not have been tried in Boston,” Tsarnaev’s attorney Daniel Habib. “The marathon bombing targeted a beloved and iconic civic institution. They traumatized an entire community whose members together mourned the victims. Tsarnaev was sentenced to death two miles from the marathon's finish line."
Arguing before the three-judge panel, Habib also described posts that two of Tsarnaev’s jurors made about the case other social media. One juror referred to Tsarnaev as "a piece of garbage," while another discussed the case on Facebook where a friend urged the juror to ensure Tsarnaev was convicted.
The judges were critical of the fact that the trial court failed to ensure that the jurors were asked about their social media exposure to the case.
"Here you have a defendant who is clearly guilty of this heinous crime and you stretch and don't follow the rules," said U.S. Circuit Judge William Kayatta.
An Obama appointee, Kayatta asked why more was not asked of the jurors, especially given the ease by which jurors’ claims can be verified on social media.
"Courts can go back and see exactly what potential jurors thought about a case, even years later,” he said.
Assistant U.S. Attorney William Glaser argued that, considering the case's high profile, it was unreasonable to assume that jurors had not been exposed at all. This made it more appropriate, the prosecutor said, to focus on having jurors ignore what they had already seen or heard in the media.
"Electing to try this case in this damaged community, it was incumbent on the judge to assess impartiality," said Habib, who argued that the judge's failure to properly assess the juror's exposure to social media allowed for potential bias.
As Habib tried to make the case that Tsarnaev also faced an unfair sentencing, Kayatta noted that public polling at the time showed that Tsarnaev was less likely to receive the death penalty in Boston than in other venues in the country.
One month before Tsarnaev's conviction, a WBUR poll reported in March 2015 that just 27% of Boston residents supported the death penalty. This came a few months after a national Gallup poll found 63% of Americans supported capital punishment.
Tsarnaev and his older brother, Tamerlan, detonated a pair of homemade pressure-cooker bombs at the finish line of the Boston Marathon on April 15, 2013. The explosions killed three spectators — Krystle Campbell, Lu Lingzi and Martin Richard — and left hundreds injured.
As a manhunt dragged on for four days, the brothers killed Sean Collier, a police officer for the Massachusetts Institute of Technology. Dzhokhar was finally captured in Watertown, Massachusetts, after a firefight with police in which Tamerlan was killed.
Another death attributed to the Tsarnaevs occurred the following year when Boston Police Officer Dennis Simmonds died from concussion injuries received during the Watertown shootout.
O'Toole, the judge who presided over Tsarnaev’s trial, is a Clinton appointee.
Kayatta presided over Thursday’s appeal alongside U.S. Circuit Judges Juan Torruella and O. Rogeriee Thompson, appointed respectively by Reagan and Obama.
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