Legal Analyst Nancy Gertner Responds To Overturning of Death Penalty For Tsarnaev

Boston Marathon bomber Dzhokhar Tsarnaev is no longer facing the death penalty. The U.S. Court of Appeals for the First Circuit has overturned the death sentence, ruling that the trial judge did not meet the standard of fairness when it came to the jury. The court is ordering a new penalty phase trial for the man convicted of the 2013 attack that killed three people and wounded more than 260 others.

Sharon Brody spoke with WBUR legal analyst and former federal judge Nancy Gertner about the decision.

On concerns that the trial judge didn't do enough to ensure a fair jury: "The judge is supposed to inquire about the nature of the publicity. In other words, think about this. There are two questions. One question is, 'What have you heard about this case that would require the juror to say ... 'I watched intently this coverage or that coverage or I saw him confess in the hospital.'"

"As opposed to, 'Has anything you've read about the case impaired your ability to be fair?' In the latter case, the juror is the decision maker about whether they are fair. The juror doesn't really have to describe what they've heard. They only have to say, 'No, I'm fine. Nothing I have heard impaired my ability to be fair.'

"The law requires that you ask, 'What have you heard? Tell me what you remember. What remains in your brain after this incredible onslaught of publicity?' By not asking the first question — the 'what' question — the judge deferred the issue of partiality — of a determination of who is partial — to the jury. The jury made their own decision of partiality, rather than telling the lawyers what the juror had heard and then let the judge decide partiality. Essentially nine of the 12 on the jury — no one knew what they had actually remembered, saw or or heard."

On how the appeals court weighed in on the question of moving the trial out of the Boston area: "The appeals court [was] obviously split on the question of change of venue. Two judges would have said it was appropriate to keep that case in Boston. One judge was prepared to go in the other direction, and actually, that judge had made his opinion known in previous appeals on where the case should be held, so they split on that question ... The nature of the ... offense made it clear that ... the ... questioning of the jurors had to be particularly searching, and it wasn't." 

On how the appeals court addressed jurors' comments on social media about the case — and subsequent lies about those comments: "The appeals court found that ... the judge should have ... held a hearing. Before the jurors were finally selected ... the defense had determined that they had lied about their social media presence. It was available to the judge before any jurors were seated ... and [the judge] didn't [hold a hearing]. That ... was not the basis for reversing the penalty here, because the earlier problem with the questioning had been enough to overturn the penalty. But it was certainly enough that ... the court noted this as a problem."

The appeals court ruled that the trial judge had erred when he refused to let jurors hear evidence that Tsarnaev's brother Tamerlan had killed three people in Waltham in 2011. On the significance of that part of the ruling: "Well, that's tremendously significant ... in two parts. One was that the defense didn't get all the information that the FBI had about those Waltham murders. One was an issue of disclosure and that will have to happen now. The second question is a question of whether a jury should hear the issue of relative culpability.

"In other words, it would mitigate Dzhokhar's culpability if it looked like he was under the influence of his older brother. The details of the Waltham crime, the circumstances of the ... crime, the brutality of it, having been done by Tamerlan, the older brother, should have gone before the jury. That will be significant — the next penalty phase will have more of that than the previous one did."

On what the U.S. attorney for Massachusetts, Andrew Lelling, will be evaluating as he reviews the ruling: "He could evaluate what ... the then-U.S. attorney could have evaluated at the beginning, which is: Is the government content with life without parole for Dzhokhar or not? ... Or do you need to put ... the victims and the city through another trial? ... Isn't life without parole enough? [That] is what he has to decide."