Boston Marathon bomber seeks new judge due to jury bias

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev argue in court papers that the judge who presided over his 2015 death penalty trial “invited trouble” by publicly commenting on the case after the verdict and that he should recuse himself from an investigation ordered by a federal appeals court into whether two jurors were biased and should have been excused during jury selection.

U.S. District Judge George A. O’Toole Jr. spoke about Tsarnaev’s case on a 2023 podcast and during panel discussions about jury trials in 2016 and 2017 at a law school and a court-sponsored event, according to the motion filed in federal court in Boston last month and unsealed Friday.

“Your Honor praised the ‘remarkable’ ‘public spirit’ of the seated jurors, assured the public that Mr. Tsarnaev received a ‘completely fair’ trial, and said that Your Honor has no ‘lingering questions or doubts’ about the ‘outcome of the process’. ‘ – a death sentence,” wrote Tsarnaev’s lawyers, Deirdre von Dornum, David Patton and William Fick.

They argued that O’Toole’s public comments violated the judicial code of conduct that generally prohibits judges from commenting on the merits of cases before a court, and also created the public perception that he was not impartial.

In response, the U.S. Attorney’s Office urged O’Toole to deny the defense’s request, arguing that the judge had not violated ethics rules because he never discussed the merits of Tsarnaev’s case. In their motion filed last month and released Friday, prosecutors argued that Tsarnaev “misinterprets the comments he highlights, takes them out of context, or both.”

Prosecutors also argued that Tsarnaev’s motion should be denied because it was filed too late, as most of the comments he cites were made by the judge more than eight years ago and could have been raised as part of his appeal.

Tsarnaev, 31, was sentenced to death for detonating bombs along with his brother at the finish line of the Boston Marathon in April 2013, killing three people and injuring more than 260 others. He remains on death row in a supermax federal prison in Colorado.

In a 2-1 ruling in March, the U.S. First Circuit Court of Appeals ruled that O’Toole failed to adequately investigate claims that two jurors were biased before rejecting a defense request to excuse them during jury selection rejected. It sent the case back to O’Toole to conduct “an appropriate investigation” into possible biases of the two jurors who did not disclose social media posts they made about the case before being chosen for the jury.

If he concludes they were biased and should have been removed from the jury, Tsarnaev will be entitled to a new trial on whether he should be sentenced to death or life in prison, according to the appeals court.

The case has been shrouded in secrecy since August, when O’Toole ordered the prosecution and defense to file all files under seal “unless otherwise noted,” citing concerns about the integrity of the trial and the privacy of jurors . On Friday, he granted requests to withdraw the defense’s recusal motion, filed on September 3, and the government’s response, filed on September 17.

The proceedings mark the final chapter in a legal saga that has seen a flurry of appeals that have already reached the U.S. Supreme Court.

Tsarnaev, a son of Chechen immigrants who grew up in Cambridge, admitted his crimes during the trial. His lawyers opposed the death penalty, saying the then 19-year-old was influenced by his older brother and therefore less responsible.

But jurors concluded he showed no remorse for his actions and should be sentenced to death. He did plant a bomb in a backpack in front of the Forum restaurant on Boylston Street, killing 8-year-old Martin Richard and Lingzi Lu, a 23-year-old Boston University graduate student from China.

Tsarnaev was also found responsible for the murder of MIT police officer Sean Collier days after the explosion while he and his brother were on the run.

Evidence showed that his older brother, Tamerlan Tsarnaev, planted the bomb that killed 29-year-old Krystle Campbell of Arlington. Tamerlan Tsarnaev, 26, later died during a shootout with police in Watertown.

Shelley Murphy can be reached at [email protected]. Follow her @shelleymurph.