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Monday, May 27, 2024 | Back issues
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Prosecutor Scoffs at Tsarnaev’s Retrial Bid

BOSTON (CN) - Convicted marathon bomber Dzhokhar Tsarnaev's bid for a new trial is misinformed and lacking in evidence, the Justice Department told a federal judge.

Tsarnaev filed a new trial on Aug. 17, arguing that local holidays and remembrances of the terrorist attack biased the jury.

The ethnic Chechen was convicted just a week before the two-year anniversary of the day he and his older brother, Tamerlan, set off homemade pressure-cooker bombs at the finish line of the Boston Marathon.

Three people were killed and more than 260 were injured, 17 of whom with amputations, in the April 15, 2013, bombing. The Tsarnaevs killed a fourth person, a police officer, while trying to evade apprehension.

Though Tamerlan died in a police shootout, his brother Dzhokhar faces the death penalty

Tsarnaev complained this summer that his trial occurred at Moakley Courthouse in South Boston, which was surrounded by banners promoting the 2015 Boston Marathon, while construction sites adjacent to the courthouse flew "Boston Strong" banners.

The trial also coincided with various events in Boston and the surrounding communities in honor of One Boston Day, a new holiday to mark the anniversary of the 2013 bombing.

Tsarnaev has not contested his role in the bombing, but he told the court that the 15 charges against him under Section 924(c) of Title 15 were misapplied.

U.S. Attorney Carmen Ortiz filed an opposition brief Wednesday.

She said Tsarnaev's motion ignores the work that the court put into notifying the jury and reminding them daily to avoid media coverage and events related to the trial or the Boston Marathon.

The court had even held a special session prior to the two-year anniversary of the bombing to give the jury a special set of instructions about avoiding media coverage and marathon- or memorial-related events, according to the 26-page brief.

Ortiz said Tsarnaev also failed to provide any evidence of bias from jurors, other than Facebook posts, which precedent already deems insufficient to show juror bias.

The prosecutor also emphasized Tsarnaev's failure to bring up these concerns until after the trial.

"Tsarnaev waived any argument relating to posts by jurors' Facebook 'friends' by failing to raise it in time," the brief states. "He has not shown a sufficient likelihood that any juror was exposed to 'inflammatory' Facebook posts, let alone that any juror's Facebook News Feed was 'saturated' with them. He also has not established that jurors in another jurisdiction would have had fewer Facebook 'friends' posting 'inflammatory' posts, or even that the bulk of the posts he actually complains of were actually prejudicial. His argument is untimely and based on pure speculation. It should be rejected."

Tsarnaev also argued that the law he was charged with violating was ruled unconstitutionally vague under the 2010 decision Johnson v. United States.

Insisting that Tsarnaev misinterpreted the ruling, however, Ortiz said Johnson declared a section of law vague that was not applied in this case.

Ortiz also said Tsarnaev never argued against the use of 18 USC 924(c) during the trial, waiving his right to challenge it now.

"The court gave the parties draft instructions, and later gave the jury actual instructions, in which it identified the predicate offenses as crimes of violence," the brief states. "Tsarnaev never objected to those instructions either before or after they were given. That is the essence of a waiver."

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