The decision Friday by a federal appeals court to overturn the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev was ridiculed by the president and called an intolerable act of judicial activism by law enforcement officials who chased and prosecuted Dzhokhar Tsarnaev. It is neither of those things. It is instead an act of courage by a federal court to render such an unpopular decision validating essential fair trial rights of defendants enshrined in the Sixth Amendment, even ones like Tsarnaev, whose crimes are so large they change the course of a city’s history.
There is no question of Tsarnaev’s guilt and no chance he’ll ever take a free breath again. The ruling from the First Circuit Court of Appeals only applies to flaws in the penalty phase of the case, and soon federal prosecutors will have to decide whether and to what extent they want to fight for the right to try again to kill Tsarnaev by lethal injection for his crimes. He murdered three people and wounded hundreds more by exploding two bombs at the end of the city’s legendary run in April 2013. Labeled a domestic terrorist, Tsarnaev was convicted and condemned two years later.
The attack, and the city’s response to it, generated the “Boston Strong” mantra and countless other noble and earnest expressions of support and solidarity for victims and survivors and the police and other first responders who acted so bravely that day. The deadly attack also, naturally, generated a wave of fury and vitriol aimed at the defendant. Tsarnaev was for millions the latest “face of terror” in the land, and nowhere was the intensity of that opprobrium greater than in Boston, a city rocked to its core by the blasts he orchestrated.
So of course Tsarnaev wasn’t going to get a fair trial at a courthouse within walking distance of the bombing. The seeds of last week’s momentous ruling were sown the day the trial judge, George A. O’Toole Jr., refused to move the trial to another city, or another state, where jurors might have been less affected by the horrors of Tsarnaev’s actions. It was sown, too, during jury selection when the judge failed to aggressively question potential jurors about their bias toward Tsarnaev and their knowledge about the facts of the case.
At least two jurors, the First Circuit found, did not fully reveal their views on Tsarnaev. There were other questions about some of the social media posts of those who ultimately served in judgement of him. That shortcut might work in a typical criminal case. It doesn’t work in a high-profile case.
At the heart of the appeals court’s decision is the idea that jurors acting as “the conscience of the community” must nevertheless be free from the passions and prejudices that would render unfair or biased their judgment. So federal judges, for example, are authorized to change the venue of a trial — to move it from one place to another — if doing so would give a detested defendant a fairer or less biased trial free from undue prejudicial pretrial publicity.
The problem is that federal judges rarely use the authority given to them to move trials. The late great U.S. District Judge Richard Match did so in the Oklahoma City bombing case, moving the trials of Timothy McVeigh and Terry Nichols to Denver after concluding the two could never get a fair trial in a courthouse that was damaged by the blast. Many Oklahomans were furious with that decision. What did it accomplish? Two federal capital trials known a generation later as being among the fairest and most efficient in history.
The Supreme Court is largely to blame for the problem the First Circuit just tried to remedy in its decision in the Tsarnaev case. Over and over again, the justices have upheld decisions by trial judges not to move high-profile trials out of jurisdictions even when it is obvious that they should have been. The case of Jeffrey Skilling, the disgraced Enron executive who ultimately was tried in Houston, is a good recent example of this trend. It’s also a good reminder of the nearly impossible legal hurdles the high court has set up for defendants to succeed on their change-of-venue motions. How exactly do you prove juror bias before a trial?
The problem is only getting worse in the age of social media — a problem Skilling’s lawyers didn’t have to worry about. To do jury selection right in high-profile cases, especially those involving a terrorist attack in a U.S. city means devoting an extraordinary amount of resources to investigating the social media life of each and every prospective juror. Prosecutors and defense attorneys would have to ramp up their surveillance and investigative games, and so would trial judges. Voir dire questioning also would have to get much more intense.
What helped assure last week’s First Circuit ruling wasn’t just what lawyers discovered about jurors after the trial was complete It was the judge’s instruction to jurors to promise to evaluate the evidence with a blank slate, to forget what they had learned about Tsarnaev and his role in the bombing. That’s a legal fiction that has infected countless criminal cases over the years and, until it is remedied, is doomed to infect countless more. The First Circuit deserves great credit for saying so.
The smartest thing federal prosecutors could do now would be to accept this ruling as a rare and unlikely-to-be emulated decision, drop any subsequent effort to impose a death penalty on Tsarnaev, and force him to live forever in a federal prison cell. They could easily justify this because of the terrible toll in emotional capital that would come from the preparation for and execution of a second sentencing-phase trial for Tsarnaev. The case would end. No second jury trial in a pandemic. No more appeals court hearings.
This is precisely what Boston Mayor Martin Walsh had in mind over the weekend when he told reporters that he’s asked federal prosecutors to meet with the victims and survivors of the bombing before deciding whether or not to pursue another sentencing trial. Do they want to go forward? Do they want to relive the tragedy through more trial testimony? And it’s what Rick DesLauriers, who led the FBI’s Boston office during the bombing investigations, surely had in the back of his mind when he called the First Circuit’s ruling “an unnecessarily painful resurrection.” Even those in favor of a Tsarnaev execution, like DesLauriers one would assume, understand the toll a new sentencing trial will take.
But this is not a Justice Department that will choose such a path. It’s one that already has revved up the machinery of death. The president already has weighed in with his dubious understanding of the right to a fair trial. So it’s likely we’ll see the feds quickly appeal this ruling to the Supreme Court and hope that the death penalty lobby on that court — at least five members strong given recent execution rulings — will rescue Tsarnaev’s death sentence by overturning the First Circuit’s ruling.
Such an attempt to get the justices to hear the case likely would spill over past January 2021, however, at which time a Justice Department run by completely different people might be in charge. What would happen if Trump loses in November? What would a Justice Department under a Biden administration do with such a pending review? Would it ask the Supreme Court to drop the matter? Would the next U.S. attorney general — say, Amy Klobuchar — press ahead with a new federal sentencing trial for Tsarnaev if a Supreme Court appeal fails?
There is no way to know the answers to those questions. For today, it is enough to recognize that the First Circuit here has bolstered the constitutional rights of individuals that have been consistently weakened over the years. The decision was covered by journalists last Friday as though it were a shock and, to many, it was. To me the surprise isn’t that this ruling happened but that more rulings like it don’t happen more often. Of course, Tsarnaev’s jurors were biased against him. Of course, the trial judge failed to better protect the defendant’s rights. Sadly, it happens all the time.
The views expressed are the author’s own and not necessarily those of the Brennan Center.