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Appeals court orders new trial for Dzhokhar Tsarnaev, but only to determine whether he is put to death or spends the rest of his life in prison

A federal appeals court said today that Dzhokhar Tsarnaev did not get a fair trial on the question of whether he deserves to die for his role in the Boston Marathon bombings and the death of an MIT police officer and so ordered a new trial to settle the matter.

"Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him," the US Court of Appeals for the First Circuit in Boston said, proceeding to express its disgust at the actions of Dzokhar and Tamerlan Tsarnaev, to the point of graphically describing the way their pressure-cooker bombs ended the lives of Krystle Campbell, Lingzi Lu, and Martin Richard on the day of the Marathon and the ensuing manhunt, during which they gunned down MIT police officer Sean Collier before Tamerlan Tsarnaev was killed in a shootout and run over by his brother, who was eventually found in that boat in Watertown.

The facts of today's appeal are painful to discuss. We apologize for their graphic detail.

After describing what some of the survivors went through, the three judges paused a moment in its narrative:

Now brace yourself for how Marathon-goers Krystle Campbell, Lingzi Lu, and Martin Richard spent the last few minutes of their lives.

And after providing the awful details, the judges continued:

Not only did the Tsarnaev brothers kill Krystle Campbell, Lingzi Lu, and Martin Richard, they also consigned hundreds of others to a lifetime of unimaginable suffering. Some lost one or more limbs, blown off as they stood near the finish line or amputated later because they were so badly mangled. Others lost sight, still others hearing. And years after the bombings, many still had debris in their bodies. One survivor had shrapnel in her that occasionally worked its way to the surface and had to be removed; another had a ball bearing stuck in his brain - to give just a few examples.

The problem, they said, was that after Dzhokhar Tsarnaev was convicted, the judge who selected jurors for a new panel to determine whether he deserved the death penalty failed to press jurors enough to ensure they would give him an unbiased trial - a standards set during a 1969 ruling involving the case of New England mob boss Raymond Patriarca.

The standard holds that a judge should ensure each prospective juror "with a view to eliciting the kind and degree of his exposure to the case or the parties, the effect of such exposure on his present state of mind, and the extent to which such state of mind is immutable or subject to change from evidence." And that, the appeals court determined, did not happen.

Specifically, with 9 of the 12 jurors:

[T]the judge fell short on this front. To repeat what we wrote earlier, the judge qualified jurors who had already formed an opinion that Dzhokhar was guilty - and he did so in large part because they answered "yes" to the question whether they could decide this high-profile case based on the evidence. The defense warned the judge that asking only general questions like that would wrongly "make[]" the potential jurors "judge[s] of their own impartiality" — the exact error that the Patriarca line of cases seeks to prevent. But the judge dismissed the defense's objection, saying that "[t]o a large extent" jurors must perform that function. Yet by not having the jurors identify what it was they already thought they knew about the case, the judge made it too difficult for himself and the parties to determine both the nature of any taint (e.g., whether the juror knew something prejudicial not to be conceded at trial) and the possible remedies for the taint. This was an error of law and so an abuse of discretion.

The court also ruled that the judge unfairly prevented Tsarnaev, who admitted his role in the bombings, to make his mitigating case that he was a mere pawn of his brother's by not letting him introduce testimony about a triple murder in Waltham that the dead brother had been implicated in.

The government is wrong to imply that the jury had to make leaps of imagination to connect what Tamerlan did in Waltham to his influence over Dzhokhar. If the judge had admitted this evidence, the jurors would have learned that Dzhokhar knew by the fall of 2012 that Tamerlan had killed the drug dealers in the name of jihad. They also would have known that it was only after these killings that Dzhokhar became radicalized as well: Evidence actually admitted showed that Dzhokhar first flashed signs of radicalization — as is obvious from his texts on jihad — after spending a holiday break with Tamerlan several weeks or so after learning about the Waltham murders.44 So if the jurors had heard Todashev's description of how he felt powerless to withdraw from the Waltham crimes once Tamerlan chose to turn an armed robbery into a triple murder, at least one juror might have found that Dzhokhar felt the same way when it came to the bombings in early 2013.

And if the judge had admitted the Waltham evidence — evidence that shows (like no other) that Tamerlan was predisposed to religiously-inspired brutality before the bombings and before Dzhokhar's radicalization45 — the defense could have more forcefully rebutted the government's claim that the brothers had a "partnership of equals." ...

Similarly, the evidence could have helped the defense counter the government's argument that Tamerlan and Dzhokhar "bear the same moral culpability" and that Dzhokhar acted "independently" in placing the bomb at the finish line — for the evidence showed that Tamerlan, unlike Dzhokhar, had a history of horrific violence, which he justified as jihad; that Tamerlan, unlike Dzhokhar, had previously instigated, planned, and led brutal attacks; and that Tamerlan, unlike Dzhokhar, had influenced a less culpable person (Todashev) to participate in murder.

One of the three judges on the panel, Juan Toruella, wrote a partial dissent, disagreeing with the other two on the question of whether Tsarnaev could have gotten a fair trial on the death-sentence question at all in the Boston area. Toruella argued that given the intense feelings and publicity about the case in Boston - up to and including David Ortiz's famous "This is our fucking city" declaration - were completely understandable, but made a truly fair trial for Tsarnaev impossible with a jury pool drawn from eastern Massachusetts and so Tsarnaev should have been tried somewhere else in the country.

PDF icon Complete ruling436.45 KB


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To anyone who will inevitably be upset at this ruling—

This is what happens when a judge insists on railroading someone even when they're guilty. Let's not forget that the defendant even pled guilty here. Yet when the defense attorneys submitted numerous motions and objections to simply ensure that he received a fair trial, the judge ruled against every single one, many times summarily without even a comment. Judge O'Toole was basically a tool of the prosecutors. Which the appeals court clearly saw.

Had the judge simply allowed the defense to make their arguments, and had the judge saw fit to remove some blatantly prejudiced jurors, the verdict would have been the same and the sentence likely the same—yet since the judge was bent on denying every single attempt by the defense to get a fair trial, we now have this. The whole sentencing phase is going to have to be played out again in someone else's courtroom.


The defense in his trial had no arguments. His defense team (which billed something like $1.5 million) even made a weird trip to Kyrgyzstan or Russia to try to dig up evidence that somehow when he was a kindergartener, he was influenced and therefore should warrant a reduced sentence.

His entire defense consisted of throwing darts in an effort to delay justice, and he's winning, because our justice system is so messed up. His crime was in 2013. His trial should have been a year later, and sentence carried out within another year. Today, 7 years later, look where we are.


The complete ruling, attached, outlines numerous arguments/objections the defense team made. Two of the biggest which concerned the appeals court were the judge relying on jurors to simply state they were non-prejudiced despite blatant evidence to the contrary (which the judge ignored), and refusing to allow the defense to president evidence that Tamerlan had influenced or manipulated Dzhokhar into participating.

Again, note in both these cases this was the judge's doing: I doubt that the court would have gotten a similar verdict if the judge had simply removed the bad juror(s) and brought in others. How many alternates did this case have? Dozens? And if the Tamerlan influence argument didn't hold any weight, why not let the jury (you know, the one the judge allowed prejudiced jurors onto, to begin with) hear the arguments and draw their own conclusions?

...is asking for trouble. Ok, sounds reasonable to me.

"[T]the judge fell short on this front. To repeat what we wrote earlier, the judge qualified jurors who had already formed an opinion that Dzhokhar was guilty - and he did so in large part because they answered "yes" to the question whether they could decide this high-profile case based on the evidence. The defense warned the judge that asking only general questions like that would wrongly "make[]" the potential jurors "judge[s] of their own impartiality" — the exact error that the Patriarca line of cases seeks to prevent."

Interesting standard.
'Can you be impartial?'
OK, disqualified.

What the FUCK am I missing here?

ED: Got it. Answer, 'I dunno' and that qualifies you.

This is a willfully disingenuous take. Answering "yes" to "can you be impartial?" was not the issue here; the judge allowing that to be the only question asked to jurors to get at their impartiality implicated him, not the jurors, in abuse of discretion that undermined the sentence. While it's perhaps likely that adequate screening would've resulted in a different jury, that's not what the appeals court ruled on, and nobody has suggested that specific jurors should've actually been disqualified.

McVeigh was put to sleep. He got off easy.

Let our Inman Square friend wake up everyday for the next 50 years or so and realize why he is in a room by himself in the Colorado Mountains for 23 hours everyday.


The TV nooz people just now asserted that the victim's families were [all] terribly upset by his not getting killed (yet). I do not think they interviewed all of those family members before making the claim. Killing the kid will not revive any of the dead, nor restore any of those injured.


Is killing them really the best idea?

I would think that if we were concerned about deterring future crime, being alive in prison for the rest of their natural life would be a better idea.


Krystal's mother is on record as being for it, Martin Richard's parents wrote a piece for The Globe where they opposed it. There's hardly unanimity with the victims.

I also think the better punishment is him living out his life in prison. While this may not fall into one of so many cases where the death sentence was applied to an innocent person I agree with others here that he gets off easier by being put to death at a young age instead of living out many years where he can consider what he did to make his life so worthless.

Without the death penalty, all he will do is cost the taxpayers money.
I'm betting no one has stopped killing someone because they don't want to end up like Tsarnaev.


Last I checked, death row and execution not only keeps these people in the news, it costs more money than just locking them away.

Burden of evidence is on you for making the assertion that it is cheaper.


You and your citations. Give it a break.

Either way he costs a lot of money. Supermax Florence Colorado costs an average of $60,000 per year for the average inmate. He is not in the "average" cost group. He is in the highest cost group, but the Feds don't break down the cost per inmate.

Also, based on the evidence he was a somewhat reluctant associate to his brother, so I'm not sure there are facts in evidence that he was prepared to die. I think he was a listless stoner whose brother pushed him into unspeakable acts. Either way he was a coward in the end.

That said, just be honest with the community. You don't approve of capital punishment and are unwilling to face a direct argument so you would rather argue about cost. Fine.

I could really give a crap about him either way. The fact is that he is a young man and eventually some judge or congress will let him walk free before he is dead. His lawyers will not stop representing him just because the court reduces his sentence to life, which in the Federal system is without the possibility of parole. The current left in the country is opposed to life without parole. They will continue his case to get him out since they are paid by the taxpayer and can continue forever at our cost. The cost issue is not a justifiable argument as his expense is unknown either way at this point. Any "studies" that compare cost of life versus death penalty do not apply here since there are no studies that compare cost in the Federal system (rather than states). The cost of solitary 23 hours confinement in Florence supermax is not reported and the legal expense of his future appeals at the taxpayer expense are unknown.

Most of you don't approve of the death penalty. Just say it straight. Its fine. Actually, it is expected. That said, I believe society is justified in putting this motherfucking dog down. We just have a difference of opinion. Federal law concurs with mine that his crime is subject to lethal injection. The current issue is part of how the system ensures that happens according to the law. This is part of the process, not an end of his sentencing.

I sincerely hope none reading this become victims of murderous evildoers.


The world has moved on. Catch up. Lethal injections are cruel and unusual punishment. Nobody will sell us the chemicals that used to be considered civil...because they aren't.

Additionally, for every "obviously guilty" person there are probably a dozen less clear cases.

Finally, if I'm the victim of a murderer, then I'll be dead. It won't matter to me what is done with my murderer. I hope my family doesn't hinge their life on the murderer's existence or death. Why give that power to a murderer? If the murderer is where they can't harm anyone any more, that's all that matters. We are better than they are. Well, the rest of us are. You're welcome to join us instead of them.

But there were Federal executions in the last couple of weeks by lethal injection and they were OK'd by the Supreme Court days in advance. Yes, I know you're going to say they are a bunch of conservatives and when Biden packs the court all that will be over. Still, at this time I am the one who is correct according to the law of the land. Lethal injection is not cruel and unusual punishment and the Feds have the drugs. You may have your own opinion but you are not entitled to your own facts.

That said, I guess I would be more sad if others were the hypothetical victims of murderers than you, though I still would value this time we have had together. Also, I'm not supporting capital punishment for all murderers, but I do support it for the select few truly evil irredeemable ones like Tsarnaev. I'm glad he killed his brother when he ran him over so we don't have to deal with that prick as well.

SCOTUS didn't take up the case, it didn't okay it.

The Feds don't have the drugs. They have pentobarbital and they're giving a single high dose because it's all they have. This actually violates the Federal Law that brought back the death penalty which says the method has to be of the state the execution happens in because those states don't use pentobarbital.

Additionally, the guy in Indiana they just killed was adamant until his final breath that he didn't do it. That's not what guilty men usually do. Are you so sure we just killed the right person? Well, you'll have to live with it anyways. Of course, you didn't even know he existed before, so I'm sure you will sleep fine anyways. You only give a shit about killing bad guys because they effect you only in the hypothetical. Congratulations, you have no morals.

Bob Dylan would say "It's a wonder you still know how to breathe." Your idiot wind is astonishing, but it is your arrogance that should make people cringe. EVERY THING YOU SAID IS DEMONSTRABLY WRONG!


By what measure? Cost of incarceration?
How about cost of the hundreds of limbs he blew off? How about the cost of a human life? How about the cost of the wrecked lives he left behind?

No. Fuck him. Kill him.

No regerts.


By what measure? Cost of incarceration?
How about cost of the hundreds of limbs he blew off? How about the cost of a human life? How about the cost of the wrecked lives he left behind?

No. Fuck him. Kill him.

No regerts.

The costs of the blown off limbs, lost and wrecked lives. are what they are; they happened in the past and cannot be changed, and so are not germane to the argument of whether it's costlier to execute him or to keep him imprisoned for the rest of his natural life.

(I don't particularly think much of the relative cost argument for or against capital punishment and I'm not taking a position on that here; only pointing out the logical inconsistency of the quoted text above.)

death row and execution not only keeps these people in the news, it costs more money

Not exactly. Death row is currently expensive. Execution is not.

Clearly there are a few things going on. First, there are people philosophically against the death penalty, who will do anything they can to DOS the system. It's a form of fanaticism. Second, there are cases where the death penalty makes less sense, because of potential error over whodunnit. That is not the case here. Third, the judicial system in general in the USA is just too slow. Even small claims court can take six months to happen, while murder trials and appeals can last over a decade. I don't think anyone agrees that's a good thing.

I debated this in college as part of a debate club and there is overwhelming evidence that death penalties cost more than just locking someone up and throwing away the key. Additionally, they cause families further pain because of the lengthy appeals process that often includes victim statements as well as reporters wanting quotes from them every time it becomes a headline.


Getting dragged back into watching or taking part in judicial proceedings for a decade or more just keeps the pain of loss and damage at the forefront. The Richards family should be able to go on with their lives with the constant knowledge that he is in prison and will never emerge. His parents would likely die with that knowledge and one day his siblings would be notified of his passing in prison after a life made worthless by his actions just before the news is released to the public.

Without the death penalty, all he will do is cost the taxpayers money.

Perhaps not so?

I've got no specific insight into this case, but people have committed crimes before and gone on to be strong advocates against the sort of violent action that they committed.

There's probably a half-dozen true-crime documentaries in the queue just waiting long enough for people to forget the details so they can record them all again.

He’s young, and could live for several more decades. I think rotting in jail for that long is a much better punishment than putting him out of his misery. And it will be cheaper. The endless appeals that come with a death sentence cost the taxpayers much more than just leaving him in his current accommodations.

And it’s not like he’s at Camp Cupcake doing arts and crafts; he’s in solitary confinement at a SuperMax prison in the middle of a desert.


Abolish the FBI

... And the death penalty


Should have gone to Walpole and been taken care of in our states finest prison. I would trust in that justice more than the easy time in federal lockup.

The second choice is of course the cell where Epstein got whacked.


There are different kinds of federal prisons. He's not getting the Martha Stewart treatment at Florence Supermax.

23 hours a day in a 84 square foot concrete box with concrete furniture. Technically not windowless, of course, there is a 4 inch wide window. You'll never even know where inside the building you are in relation to anything.

penalty. If you really want your pound of flesh, keep them alive for 40 or 50 years in lockdown. Pretty sure that’s worse.


The fact that people on death row (like Tsarnaev) consistently appeal their death sentences is a strong indicator that death is worse than life in prison.

If life in prison was viewed as worse, Tsarnaev would not be appealing his sentence. Tsarnaev wouldn't even have been arrested. He would have shot himself while hiding in the boat in Watertown, instead of surrendering literally red handed.

It’s hard to say if life or death is worse punishment for a young terrorist murderer. My thing with life in prison is that some bad people I imagine like their prison life. If he is truly miserable every day in prison then life might be appropriate. However, make no mistake-death is the ultimate consequence. By executing someone you are removing them from planet Earth. Never to take a breath of air again. Hard to say which is a greater punishment at times.

My thing with life in prison is that some bad people I imagine like their prison life.

Hard to imagine anybody liking life in here:


Why would you peg your happiness in life on theirs?

Why allow them that control over you?

Put them where they hurt no one any longer and move on without them.

Killing them only punishes you by striping you of your morals.

This man was 19 when he committed his crime. If you are an adult, you understand that 19 year olds are children. Even the most staunch proponent of the state having the right to murder prisoners should be reluctant to advocate the death penalty in this case.

Our scorn for human life in Afghanistan etc. motivated the Tsarnaevs, and we think more of the same is justified. God have mercy on this country.

I’d be begging for death. I’ve read the articles on life in supermax and what it does to people there.