The Justice Department is expected to appeal. Legal observers predict prosecutors will turn straight to the U.S. Supreme Court without asking for a hearing before the full 1st Circuit. The U.S. government recently resumed federal executions following a 17-year pause and, under President Donald Trump, has pursued capital punishment in an increasing number of cases.
“When it comes to death penalty cases, the U.S. Supreme Court has been much more pro-prosecution than many of the circuit courts,” said Robert Dunham, executive director of the Death Penalty Information Center.
Should Friday's ruling stand, attention will shift to whether an impartial jury can be impaneled in a city still traumatized by the 2013 attack. Tsarnaev's defense team may renew its request to transfer the case out of Boston, where they have long contended public opinion is immutably slanted.
“Everybody in the community understands where ‘Boston Strong’ came from,” Dunham said. "The question will be whether that’s so ingrained in the community that jurors can’t set it aside and fairly determine the outcome of this case.”
Tsarnaev’s case is uniquely complicated in that an entire city — if not the whole country — considered itself the target of the bombing, said George Kendall, an attorney who filed a brief contending it was a mistake to hold the trial in Boston. Prosecutors said Tsarnaev and his brother intended the attack to punish the U.S. for wars in Muslim countries.
“This was not just a horrific crime against the individuals who were killed and hurt,” Kendall said in an interview Saturday. “This was an attack on the city of Boston and a deliberate attack on its most cherished tradition.”
Robert Bloom, a Boston College law professor who has followed the case for years, said a new penalty phase would force the community to relive the bombing.
“My hope is that the government will decide not to put the victims through this again," Bloom said, noting Tsarnaev had been willing to plead guilty before trial had the government taken the death penalty off the table.
Tsarnaev's lawyer echoed Bloom in an email to The Associated Press following Friday's ruling.
“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,” David Patton wrote.
Tsarnaev's attorneys did not dispute his involvement in the attack, but argued he was less culpable than his older brother, Tamerlan Tsarnaev, who died in a gunbattle with police a few days after the bombing.
Dzhokhar Tsarnaev was convicted of 30 charges — including conspiracy and use of a weapon of mass destruction — all but a few of which were upheld in the appellate ruling.
The appellate judges differed on whether the case should be moved to another jurisdiction but noted that, “given the sizable passage of time, the venue issue should look quite different the second time around.”
“Two of the three judges indicated it was not error to have the trial in Boston, so the opinion may actually help keep it in Boston in the future," said Brian Kelly, a former assistant U.S. attorney known for his prosecution of crime boss James “Whitey” Bulger.
Marty Weinberg, a veteran defense attorney, said a second penalty phase would be “made enormously more difficult by the widespread knowledge — particularly in the Boston area — that another jury previously decided upon death.”
Mustian reported from New York and Ring from Stowe, Vermont. AP journalist Alanna Durkin Richer contributed from West Harwich, Massachusetts.
FILE - This file photo released April 19, 2013, by the Federal Bureau of Investigation shows Dzhokhar Tsarnaev, convicted and sentenced to death for carrying out the April 15, 2013, Boston Marathon bombing attack that killed three people and injured more than 260. On Friday, July 31, 2020, a federal appeals court overturned the Boston Marathon bomber's death sentence. (FBI via AP, File)
FILE - In this April 22, 2013 file photo, a woman wipes a tear at a memorial for the victims of the Boston Marathon bombing on Boylston Street near the race finish line in Boston. A federal appeals court has overturned the death sentence of Dzhokhar Tsarnaev in the 2013 Boston Marathon bombing, Friday, July 31, 2020, saying the judge who oversaw the case didn't adequately screen jurors for potential biases. (AP Photo/Robert F. Bukaty)
Credit: Robert F. Bukaty
Credit: Robert F. Bukaty