BOSTON — Lawyers for the man sentenced to death in the Boston Marathon bombings of 2013 will argue on Thursday that jurors who sentenced him to death were prejudiced by powerful emotions that coursed through this city after the attacks, and that the verdict and death sentence should be thrown out.
Defense lawyers for the man, Dzhokhar Tsarnaev, say in legal briefs that it was impossible to select an impartial jury in Boston, whose residents were immersed in news coverage of the aftermath and shared a “sense of personal victimhood” during the weeks and months following the attacks.
During the trial in 2015, Judge George A. O’Toole Jr. of the Federal District Court denied repeated motions for a change of venue, noting that he was selecting jurors from a pool of five million people.
The defense also asserts that Judge O’Toole improperly excluded evidence that Mr. Tsarnaev’s older brother, Tamerlan, had not long before the bombing been involved in a triple slaying in Waltham, an omission that, according to the brief, denied the jurors of crucial information about an older brother who they argued had a powerful, domineering influence over Mr. Tsarnaev.
“These constitutional errors,” a brief from the defense reads, “infected every aspect of this trial.”
The bombings in 2013 were the bloodiest terrorist attack on the United States since Sept. 11, 2001. The federal death sentence was a rare event Massachusetts, which has no death penalty for state crimes. Throughout the trial, polls also showed that residents overwhelmingly favored life in prison for Mr. Tsarnaev.
On April 15, 2013, Mr. Tsarnaev and his older brother set down two pressure-cooker bombs in a crowd that had gathered to cheer on marathon runners. The bombs killed three people and injured 260 more, many of them grievously. Seventeen people lost limbs. A fourth person, a law enforcement officer, was killed a few days later in a gunfight with the fleeing brothers.
Of 1,300 prospective jurors called for service, all but four said they had been exposed to news media coverage of the case.
Two years and two months later, the jury sentenced Mr. Tsarnaev to six death sentences, 20 life sentences, and four more sentences of seven to 25 years. Judge O’Toole confirmed the death sentence using words from Shakespeare.
“The evil that men do lives after them,” he said. “The good is oft interred with their bones. So it will be for Dzhokhar Tsarnaev.”
Mr. Tsarnaev’s lawyers’ arguments on Thursday before a panel of three judges at the United States Court of Appeals represent the first step in a process that will probably last for years. The arguments are constrained to the trial record, and must establish that the judge or prosecutors erred in some way that is significant enough to merit a reversal, a high bar since judges are typically granted broad discretion.
The defense argument singles out two jurors, identified in court papers only as Jurors No. 286 and No. 138, who the lawyer say lied during jury screening by failing to disclose social media comments that demonstrated clear biases against Mr. Tsarnaev.
Before the trial, Juror 286, a restaurant manager who was chosen as forewoman of the jury, had tweeted or retweeted 22 posts about the bombing, including one that described Mr. Tsarnaev as “a piece of garbage,” Mr. Tsarnaev’s lawyers say. Another post described being forced to shelter in place with her family while the authorities carried out a citywide search for the bombers.
Juror 138, a man who worked for the Peabody Water Department, had posted on Facebook that he was in the jury pool for the case. One friend wrote that “if you’re really on jury duty, this guys got no shot in hell.” Another wrote, “play the part so u get on the jury then send him to jail where he will be taken care of.”
On the day of sentencing, the defense team’s brief said, Juror 138 said on Twitter that Mr. Tsarnaev was “scum” and “trash,” and that he belonged in a “dungeon where he will be forgotten about until his time comes.”
Prosecutors have pushed back against the defense arguments, saying Juror 138 “never endorsed” the “flippant and joking remarks” left by his friends on Facebook, and that Juror 286 may have failed to disclose her Twitter posts because she misunderstood the instruction.
George Vien, a former federal prosecutor who now works at the law firm Donnelly, Conroy & Gelhaar, said he did not believe the case against the jurors was strong enough to reverse the outcome.
“I think everyone should stay off social media, but I don’t find it compelling,” he said. “Any undertaking involving human beings is not going to be perfect, but we need to function and try as best we can. If you look at the overwhelming evidence against him, and all the aggravating factors, it’s easy to understand why an impartial jury would have come down on the side of the death penalty.”
One of the jurors, Kelley A. McCarthy, said in an interview that she believed the jury had been open-minded and had not been biased by media coverage about the bombings.
“I think we did it fairly, rationally,” she said.
She said she was surprised to learn of social media posts by the forewoman, and said that the forewoman had not had a significant influence on other members of the jury.
“She was not a huge influencer on that trial,” she said. “I mean every single person on the trial had their own free will, and she wasn’t somebody who was persuading anybody, other than what the facts were.”
George Kendall, a lawyer in New York who specializes in death penalty cases and filed an amicus brief on Mr. Tsarnaev’s behalf, said the bombings were understood as an attack on the core of Boston’s identity, epitomized by the marathon.
“Boston is not New York, it’s not L.A.,” he said. “While the tribes up there fight like hell, on this one day they really come together.”
“These jurors,” he said, “they didn’t have enough detachment. That is the issue that the court has to confront.”
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