An attorney for Boston Marathon bomber Dzhokhar Tsarnaev urged a federal appeals court on Tuesday to toss his client's death sentence due to juror misconduct claims.
Tsarnaev is making a renewed push to avoid execution after the Supreme Court last year reinstated the death sentence imposed on him for his role in the bombing that killed three people and injured hundreds more near the finish line of the marathon in 2013.
His attorneys are questioning issues that were not considered by the high court, including whether the trial judge had wrongly denied his challenge of two jurors who defense attorneys say lied during jury selection questioning.
One juror said she had not commented about the case online but had retweeted a post calling Tsarnaev a "piece of garbage."
Additionally, defense lawyers said another juror said that none of his Facebook friends had commented on the trial, even though one had urged him to "play the part" so he could get on the jury and send Tsarnaev to "jail where he will be taken of."
They said that while they had tried to raise those concerns during jury selection, the judge chose not to look into them further.
"This case was tried in Boston on a promise... that despite the extraordinary impact of the marathon bombing on this community," a thorough examination of possible jurors would remove anyone unqualified, Tsarnaev attorney Daniel Habib told the 1st U.S. Circuit Court of Appeals judges. "That promise was not kept."
However, Justice Department lawyer William Glaser said the trial judge did nothing wrong in his handling of the jurors, though he acknowledged that the jurors made inaccurate statements.
He said other disclosures they had made to the court suggest that they were just not remembering correctly.
"There is no indication in this record that the inaccuracies were the kind of knowing dishonesty that would lead to disqualification," Glaser said.
However, Judge William Kayatta Jr. questioned how the trial judge could know that without looking further into Tsarnaev’s claims. Judge O. Rogeriee Thompson told the Justice Department lawyer she found it difficult to see how Tsarnaev cannot at least plausibly claim that the juror told to "play the part" was knowingly lying.
At the trial's start, Tsarnaev's lawyers acknowledge that he and his older brother, Tamerlan Tsarnaev, set off the two bombs killing 23-year-old Lingzi Lu, 29-year-old Krystle Campbell and 8-year-old Martin Richard.
They have argued that he should not be put to death, saying his brother – who died in a gunbattle with police – had radicalized him and masterminded the attack.
Tsarnaev was convicted of all 30 charges against him in 2015, including the killing of Massachusetts Institute of Technology Police Officer Sean Collier during the Tsarnaev brothers’ getaway attempt.
The 1st Circuit in 2020 overturned Tsarnaev’s death sentence and ordered a new penalty-phase trial to decide whether he should be executed, finding that the judge did not sufficiently question jurors about their exposure to extensive news coverage of the bombing.
The Supreme Court justices, agreeing with the Biden administration, voted 6-3 that the 1st Circuit's ruling was wrong.
The Associated Press contributed to this report.
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