Tsarnaev appeal might go to the Supreme Court

In April 2015, I wrote the following:

Boston Marathon bomber Dzhokhar Tsarnaev has been convicted by an impartial jury of 12 locals wearing “Boston Strong” T-shirts. Now they are deciding what to do with him.

In July, the appeals court agreed with me that a local jury was unlikely to be impartial (NPR):

The higher court noted that the judge who presided over Tsarnaev’s trial had rejected the defense team’s request for a more distant trial venue where prospective jurors might be less likely to be prejudiced against the Chechen immigrant. That judge did so, the ruling maintained, promising that local jurors would be adequately screened.

But the three-judge panel ruled that the trial judge had failed to impanel an impartial jury.

In another part of the opinion, Judge Juan Torruella wrote that the District Court judge relied on “self-declarations of impartiality” by prospective jurors, calling that “an error of law and an abuse of discretion.”

Today we learn “Justice Department asks Supreme Court to review decision to vacate Boston bomber death sentence” (CNN). The Marathon bombing was more than 7 years ago and featured a governor’s “shelter-in-place” request:

Readers: Does the epic length of proceedings against/related to Mr. Tsarnaev reveal a defect in the U.S. legal system? From the Wikipedia page on the trial:

Tsarnaev’s attorney, Judy Clarke, opened by telling the jurors that her client and his older brother, Tamerlan, planted a bomb killing three and injuring hundreds, as well as murdering an MIT police officer days later. “There’s little that occurred the week of April the 15th … that we dispute,” Clarke said in her 20-minute opening statement

In other words, the defense and the prosecution actually agreed regarding most of the facts. Shouldn’t we have had a resolution long before now?


  • “Boston Marathon Bombing Trial: Why Are Judges Loath To Change The Venue?” (Harvey Silverglate, 2014)
  • “Brothers’ Classic Immigrant Tale Emerges as Relatives Speak Out” (NBC, 2013): Tamerlan Tsarnaev was an outspoken athlete who spoke three languages, played the piano, studied engineering, was a devout Muslim and aspired to represent the United States at the Olympics. … The brothers were part of a family refugees who fled the war-torn Chechnya region of Russia and immigrated to America a decade ago. … “They immigrated and received asylum,” Ruslan Tsarni, the brothers’ uncle, told reporters outside his home in suburban Maryland.
  • “Russia’s Warning on Bombings Suspect Sets Off a Debate” (NYT, April 2013): In March 2011, the Russian security service sent a stark warning to the F.B.I., reporting that Tamerlan Tsarnaev was “a follower of radical Islam” who had “changed drastically since 2010” and was preparing to travel to Russia’s turbulent Caucasus to connect with underground militant groups. Six months later, Russia sent the same warning to the C.I.A. … F.B.I. officials have defended their response to the Russian tip, which prompted agents to interview Mr. Tsarnaev and his parents and check government databases and Internet activity. The bureau found nothing.

6 thoughts on “Tsarnaev appeal might go to the Supreme Court

  1. Leaving aside ethical issues, about which reasonable people can disagree, probably the strongest argument against the death penalty is that it is very expensive and time consuming to administer. So there is often a lag of even twenty years between when the crime has been committed and when the defendant is executed. The primary reason for this is that the system is set up to try to ensure fairness in all criminal cases & in the case of death penalty cases that innocent people are not executed. The protections are very complicated and convoluted and say the writ of habeas corpus have been around for a long time. In addition many actors in the system are philosophically opposed to the death penalty, e.g., about half the justices on the Supreme Court, and do their best to try to thwart the decisions of juries. It is highly unlikely that any of this will change in anyone’s lifetime. So any prosecutorial decision to seek the death penalty, typically in response to community outrage over a particularly heinous crime, is a decision to enter this labyrinth.

    • > In addition many actors in the system are philosophically opposed to the death penalty, e.g., about half the justices on the Supreme Court, and do their best to try to thwart the decisions of juries.

      Very true. Many, many, many actors in the system are ideologically opposed to the death penalty, probably a significant majority of them at this point. I used to work for a law school dean who taught courses about it and was totally opposed to it, and it wasn’t a controversial position.

  2. Silverglate’s analysis really tells the story in the Forbes piece. Judge O’Toole committed what I think is gross malpractice bordering on deliberate sabotage through his slipshod vetting of the jury and by keeping the trial in Boston if he realized he would be unlikely to have a jury impartial enough to withstand the inevitable appeal. After that, it was almost preordained that Tsarnaev’s lawyers would successfully appeal the death penalty sentences and throw this trial to the winds of fate. Extremely high-profile capital murder and terrorism cases of this kind, with their enormous publicity, make it very difficult to avoid the kind of inherent juror prejudice that caused the appeals court to vacate the sentences, and O’Toole knew that going in. He basically ignored Timothy McVeigh’s case, as Silverglate points out. He was inexcusably lackadaisical.

    I have a friend who avoided being killed or maimed along with their family that day. They were there when the bombs went off and were saved by dint of the fact that they chose (basically at random) to watch the runners at the finish line from the opposite side of the street. There were a lot of screwups along the way with the Tsarnaevs, but O’Toole’s was the most egregious.

    And last week in the Kennedy/Markey debate, they were debating parole!

    • I am not sure why the trial location would matter. Is the theory that people in MA cannot be impartial but people in say MT would be because they do not care what happens in MA ? By this lawyerish convoluted sort of reasoning the most impartial jury would be in Grozny.

      I realize that close relatives of the bombing victims would really hate the terrorists and emotions would shut down reason but saying that unrelated randomly selected people of MA cannot be impartial is rather idiotic. Following this sort of logic no trial can happen in MA if a crime was committed there. I think that Jack correctly identified the reason for the appellate court decision who were dishonest enough not to state the real (ideological) reason for their decision and hid behind the “impartiality” veil.

  3. Electing Harris won’t stop BLM and Antifa.

    Premature deaths of Mr. Soros and a few other financial backers of the communist brownshirts will.

Comments are closed.