Boston Bomber May Dodge Death Penalty as Justice Department Preps for More Executions – Reason.com

A federal court has overturned the death penalty sentence for convicted Boston bomber Dzhokhar Tsarnaev, citing jury biases.

The ruling doesn’t necessarily mean that Tsarnaev won’t be executed. It does mean that Tsarnaev will receive a new penalty-phase trial.

Tsarnaev was convicted and sentenced to death for his role in 2013’s bombing of the Boston Marathon, where three were killed and more than 200 injured. He carried out the attack with his brother Tamerlan, who was killed later in a confrontation with police.

Tsarnaev didn’t fight to show his innocence so much as to avoid the death penalty. He conceded his role in the bombing, but his attorneys attempted to portray Tamerlan as the mastermind, radicalizing and pushing Tsarnaev into participating in the attack.

The jury didn’t buy it, and Tsarnaev was sentenced to death in 2015. Tsarnaev’s attorneys had asked for the venue for the trial to be changed, moving it out of the Boston area, but was denied. That turned out to be a problem. On Friday, a panel of judges with the U.S. Court of Appeals First Circuit determined that the judge overseeing the trial did a terrible job evaluating jurors for bias for the sentencing phase. Two jurors, for example, were seated despite having posted very strong opinions about the bombing on social media. One juror had retweeted a post calling Tsarnaev a “piece of garbage” but had told the judge she had not made any comments about the case.

Ultimately, the three-judge panel determined that U.S. District Judge George O’Toole did not properly identify and prevent prejudice from influencing Tsarnaev’s sentencing. And so, because of that, they’ve tossed out the death sentence and called for a new jury and a new sentencing trial. The Justice Department has the option to appeal to the full court instead of accepting a panel’s ruling; it could even try to take it to the Supreme Court.

There is absolutely no chance here for Tsarnaev to go free. He is still convicted of the major charges against him (though the ruling did toss three weapons-related charges for technical reasons related to the changing definitions of what constitutes a “crime of violence” under federal law). But the Sixth Amendment guarantees the accused a right to an “impartial jury,” and there’s documented evidence that did not happen in the sentencing phase.

Until this year, the federal government hadn’t executed a prisoner since 2003. But last month President Donald Trump and Attorney General William Barr restarted federal executions. Over the course of four days in July, the Department of Justice executed three men who had convicted of capital murder: Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken.

The Justice Department has now scheduled two more executions for August and another two in September. On Friday, as a federal court was ordering a new sentencing hearing for Tsarnaev, the Justice Department announced that William Emmett LeCroy and Christopher Andre Vialva, both previously sentenced to death for murder, have been scheduled for lethal injections in September.

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