BOSTON (CN) — The Boston Marathon bomber’s death sentence was overturned Friday by the First Circuit, which said several jurors in the case were biased and he was entitled to a new trial to determine whether he should be put to death.
The court also reversed three of Dzhokhar Tsarnaev’s convictions for carrying a firearm during a crime of violence.
But “just to be crystal clear,” U.S. Circuit Judge O. Rogeriee Thompson wrote for a three-judge panel, “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.”
While most of the ruling was unanimous, the court split 2-1 that it was fair to have tried Dzhokhar in Boston, the city where he and his brother, Tamerlan, set off two bombs at the finish line of the marathon in April 2013 that killed three people and injured more than 260 others.
Tamarlan died in a gunfight with police a few days after the attack, which Thompson described as “ghastly.” Dzhokhar was later found hiding and was arrested.
At his trial, Dzhokhar admitted guilt in the bombing but claimed that his brother was the mastermind and intimidated him into going along with it. The jury nevertheless voted for the death penalty.
“Radical jihadists bent on killing Americans, the duo caused battlefield-like carnage,” Thompson wrote, conveying that she understood the city’s anger at the attack even as she spared its perpetrator’s life.
In fact, the 224-page ruling read in parts more like emotional storytelling than a typical appellate decision. “Now brace yourself,” Thompson, an Obama appointee, wrote before describing some of the victims’ injuries in detail.
“Locals quickly adopted the ‘Boston Strong’ slogan to convey a message of courage and resilience,” she later said. “And the Boston Strong movement remains vibrant to this very day.”
However, Dzhokhar didn’t get a fair trial as to the death penalty, Thompson said, because two jurors lied when they told the judge they hadn’t posted on social media regarding the bombing or the trial.
Evidence later showed that after Dzhokhar’s capture, one juror had retweeted a post that said, "Told y'all. Welcome To Boston The City Of CHAMPS! We get our shit DONE! #BostonStrong."
She also 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."
The other juror had posted on Facebook about being called for jury duty in the case, to which a friend responded, "Play the part so u get on the jury then send him to jail where he will be taken care of."
This unfairly tainted the massive jury selection process, which involved 1,373 potential jurors and lasted 21 days, Thompson said.
The court ordered a new trial on the death penalty, which will take place in Boston. Thompson said it was fair to try Dzhokhar in Boston the first time because polling showed that even in the city only about a third of people favored the death penalty prior to the trial, and polling in other cities wasn’t much different.
The court also noted that while there was massive pretrial publicity about the case, virtually all of it was accurate and simply reported facts that Dzhokhar later admitted in court.
But U.S. Circuit Judge Juan Torruella, a Reagan appointee, disagreed and said there was no way Dzhokhar could get a fair trial in Boston given all the publicity and emotional feelings about the incident, which caused then-Governor Deval Patrick to order almost a million citizens to shelter in place for an entire day.
“If this case did not present a sufficient basis for a change of venue, there is no set of circumstances that will meet this standard,” he wrote in an opinion concurring in part.
Torruella also noted the civic pride behind the “Boston Strong” slogan and commented that sometimes, “pride begets prejudice.”
Dzhokhar’s attorney, Daniel Habib of the Federal Defenders of New York, suggested that the government might decide not to ask for the death penalty a second time.
“It is now up to the government to determine whether to put the victims and Boston through a second trial, or to allow closure to this terrible tragedy by permitting a sentence of life without the possibility of release,” Habib said.
Judge William Kayatta, an Obama appointee, was also on the panel.
Dzhokar is currently in a high-security supermax prison in Florence, Colorado.
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