The U.S. appeals court in Boston overturned the death sentence for convicted Boston Marathon bomber Dzhokhar Tsarnaev Friday. WGBH's All Things Considered Host Arun Rath spoke with Northeastern Law Professor and WGBH Legal Analyst Daniel Medwed about what the ruling means. The transcript below has been edited for clarity.
Arun Rath: So we'll run through the details here. But the top of everyone's mind, in case you didn't hear me say at the top of the hour — this ruling does not mean Tsarnaev is going to be released.
Daniel Medwed: Absolutely. He stands convicted of more than 20 convictions that will have life sentences. The only issue in play is whether the death sentence is appropriate. And today, the First Circuit said he should get a new trial just on that issue of life versus death.
Rath: And do we understand what was done wrong or whatever it was in the first trial? Why this should be retried?
Medwed: Yes. The appeals court cited some very specific issues. First, the panel — it was a panel of three judges — they identified a problem during jury selection. Specifically because of all the pretrial publicity in the case, the defense lawyers had asked for very specific questions during "voir dire" — that's the process of choosing jurors. And the questions were what are called content-specific questions: 'Juror A: Have you heard about this case? What have you read about this case?' And the judge sort of cut off the defense lawyers at the pass. The judge was worried about going into too much detail, too much depth about what the jurors had actually read. And today, the First Circuit said that was a problem. In a case like this, with so much pretrial publicity, you should really give defense lawyers a lot of rope to determine whether or not the jury might be prejudiced against the defendant. And in doing so, the court relied on a precedent case from the First Circuit involving a mafia boss, Raymond Patriarca, who had a case involving lots of pretrial publicity as well. So it was that very specific issue. As well, there were some inferences to issues related to whether evidence about Tamerlan Tsarnaev’s involvement in a homicide in Waltham should have been presented to the jury. But the real issue, Arun, that triggered this reversal was that problem with questions during jury selection.
Rath: You know, on the point of jury, I recall people back at the time saying about the decision to actually have the trial in Boston, which was obviously a controversial decision, that basically, there will be problems down the road. Were they right on that?
Medwed: I'm so glad you brought that up, because that was something — this is a 224-page opinion. So I'll admit I haven't digested it completely.
But the court did talk about that issue. It's called the change of venue motion issue. And the court said there's a very deferential standard of review to trial judges with that. On appeal you have to show that the judge abused his discretion in rejecting the motion to change venue to a different location. So the court basically said in hindsight, the judge didn't abuse his discretion, it was OK to keep it in Boston, but he should have paired that with a much more searching and robust jury selection process. So you're absolutely right. The jury selection process is tied in with venue.
Rath: And now what happens with the overturned death penalty counts? How does that unfold? There is a retrial?
Medwed: Yes. So what happens in capital cases — it's called a two-pronged trial. There's the guilt phase, which really wasn't too significant in the Tsarnaev case because Tsarnaev essentially admitted that he had committed these crimes. And the second trial is called the sentencing phase, or the death phase. And that was what many of us remember from that trial back in 2015 as sort of the most important moment in the case. That phase will be retried possibly next year, assuming that the U.S. Attorney's office wants to proceed and try him, but try to get a death sentence.
Rath: Are you surprised by this ruling?
Medwed: You know, frankly, I'm not entirely surprised, because at the time, many of us in the local legal community were concerned — and you mentioned this issue — we were concerned about whether Tsarnaev could get a fair trial given all of the negative pretrial publicity in Boston, how raw the emotions still were two years after the Boston Marathon bombing. So I'm not completely surprised at this result. Yes, late on a Friday afternoon in July, I wasn't entirely expecting it at this moment, but it's not a complete surprise.
Rath: Well, Daniel, on that point about the timing. I've been following this, you've been following this. I mentioned we called you in on short notice. Is it strange this is happening right now and that this is going on during a pandemic?
Medwed: Well, not necessarily. The briefing in this case was wrapped up, I think, back in October. And the First Circuit heard oral arguments on the briefs in December, if I recall, maybe mid-December. So an opinion has basically been in the works for, you know, seven months or so. In fact, it might even come out earlier had it not been for the pandemic. But I think I just lost sight of it, like many people, because it has been seven months. And, of course, there've been many pressing issues in the news since then.
