First Circuit vacates death sentence for Boston Marathon killer

In a unanimous ruling, a panel of the U.S. Court of Appeals for the First Circuit has vacated the death sentence given by a jury to Dzhokhar Tsarnaev, one of the two radical Muslim jihadist brothers who set off pressure-cooker bombs at the finish line of the 2013 Boston Marathon. The bombs killed three people and injured 260 others. Fortunately, the other bomber, Dzhorkar’s brother who apparently masterminded the attack, was killed by the police. Otherwise, his death penalty sentence presumably would have been vacated too.

The First Circuit vacated the sentence penalty on the theory that the trial judge failed properly to vet the sentencing jurors with regard to possible bias stemming from publicity surrounding the bombing. The court’s opinion, which runs 182 pages, was written by Ojetta Rogeriee Thompson, an Obama appointee. The other judges on the panel were Juan Torruella, appointed by Ronald Reagan in 1984, and William Kayatta, another Obama appointee.

In addition to reversing the sentence, the Court overturned three of the convictions. The decision leaves the government free, after judgments of acquittal are entered on those charges, to proceed with a case that strictly focuses on the penalty Tsarnaev should receive for the counts that are eligible for the death penalty. The government should do so.

The panel’s decision, though seemingly consistent with First Circuit precedent, is problematic. In a case involving crimes as heinous as this one does, it is impossible, if a speedy trial is to be had, to find jurors anywhere in America who aren’t under the influence of what they’ve seen and heard about the case. The notion that pretrial bias against a defendant like this one can be winnowed out by questioning jurors is a fiction, the indulgence in which should not provide a vehicle through which mass murderers can escape the punishment handed down to them after a jury hears all of the evidence.

It’s unrealistic to demand a pristine trial of people like the Boston Marathon bombers. Demanding one doesn’t serve the interests of justice. If anything, in practice it stands in the way of justice being carried out.

In this case, moreover, there is no reason to believe that prejudice against the defendant prevented jurors from fairly considering his claim that he was under the sway of his older brother. The pretrial publicity would have convinced jurors that a horrible crime was committed and that the Tsarnaev brothers committed it. But none of this was contested at trial. The defense was that the older brother coerced the defendant into being his accomplice. Nothing in the pretrial publicity would likely have caused any prospective juror to hold an opinion to the contrary.

The panel states:

Just to be crystal clear because we are affirming the convictions … and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), 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.

That’s no thanks to Judge Thompson and her colleagues, though. If there’s consolation in the fact that the life sentences stand, it’s thanks to the murderer for not challenging them.

In any case, life sentences fall short of what the jury that heard the evidence deemed sufficient punishment. And the jury was right. Life sentences don’t fit the crimes.

To be crystal clear, the three people murdered by the two bombers won’t remain confined anywhere for the rest of their lives. Their lives are over

But their murderer lives on, seven years after he committed his crimes and, thanks to the panel, for more years to come.

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