Overturned Death Sentence for Tsarnaev


Friday, August 7, 2020

Buzz Scherr

Professor Buzz Scherr dives into the overturning of the death sentence for Dzhokhar Tsarnaev, the Boston Marathon bomber. Produced and Hosted by A. J. Kierstead

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Legal topics include criminal law, death sentence, appeal, terrorism, jury

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A. J. Kierstead (Host):

Professor Buzz Scherr dives into the overturning of the Boston Marathon bomber's death sentence. This is The Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates, learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host, and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.

A. J. Kierstead (Host):

So Buzz, Dzhokhar Tsarnaev was previously sentenced to death for his taking part in the Boston Marathon bombing that was in 2013. Can you tell me a bit more about that case?

Buzz Scherr:

He was the sole remaining defendant. Obviously his brother died in a shootout, so he was the only one charged with the death sentence ... Death eligible capital cases. He ended up having 30 charges against him. Not all 30 were capital cases, the ones that included the death of people were capital cases. He went to trial, he was convicted on all 30.

Buzz Scherr:

Now his defense lawyers never ... Other than some minor charges, which I'll talk about in a minute. His defense lawyers never contested whether he was guilty of the offenses. Once he was convicted of those charges, they fought as to whether the death penalty should be imposed. And what a jury does in those cases, a sentencing jury does in those cases, is they ... The prosecution notices up a list of aggravating factors that they think are at play in the case.

Buzz Scherr:

And the defense notices up mitigating factors, and the defense during trial can add additional mitigating factors. And then it's up to the jury to do a balancing process governed by statute ... One, deciding have they proven the aggravators sufficiently. And two, have they proved any mitigators sufficiently. And then if there are aggravators that have been proven, balancing the aggravators and the mitigators.

Buzz Scherr:

I won't get into the nitty gritty of how that balancing occurs, but it's a very sophisticated process that was developed federally at that level about 40, 45 years ago in the new wave of capital statutes. Defense, in their appeal, did not really challenge ... They challenged, but without any success, the constitutionality of that sentencing scheme ... They had several issues on appeal.

Buzz Scherr:

The one that they won on in terms of the capital sentence, the death sentence, was the judge's failure to do sufficient screening of the jurors prior to the selection of the jurors. The same jurors sat on the guilt phase and on the sentencing phase. And the judge didn't ... Given the pretrial publicity of the case, given that in the Boston, Cambridge, Somerville area, portions of those communities were locked down, the judge did not do sufficient screening of jurors before jurors were selected.

Buzz Scherr:

Specifically, in this case, there was one juror who was locked down, and after the lockdown, he started tweeting about his experience and about the case over two dozen tweets. And in one of his tweets, he called Dzhokhar Tsarnaev a piece of garbage. The judge basically screened the jurors that ... First of all, the defense asked for a change of venue. That is, let's try this case somewhere other in the district, the federal district, where people were locked down and where it was all over the news for God knows how long. Move it to Springfield.

A. J. Kierstead (Host):

Yeah. It's completely shocking that it took place in Boston.

Buzz Scherr:

Exactly. And so one thing that judge said, no, I can screen the jurors sufficiently to cure any problems. So they asked jurors, did you know anything about this? But he wouldn't let the defense lawyers ask the individual jurors that were being interviewed, what did you find out about ... What did you learn? What do you remember from the media when this was going on, and how did that affect you?

Buzz Scherr:

And the judge did not let the defense lawyers ask those questions, to delve down into the details of what was the nature of their exposure to the media, and what was the extent of their exposure to the media. He just got them to say yes to the question. Can you put aside any feelings you have about it this case and make your decision only based on the evidence? And jurors would say yes to that. Most jurors would say yes to that. Most jurors, in my experience, don't say, no, I can't be fair.

Buzz Scherr:

Although, I've done individual voir dire in first degree murder case in New Hampshire, and there are some jurors who say, I just, what I know about this case, I can't be fair. So that was the failing. And it was put in high relief when the guy I talked about, he became the foreperson of the jury. So there's there's very well established case law in the First Circuit Court of Appeals, where the appeal was held, that says, when you have a high publicity case, you've got to figure out with each juror, the extent of their exposure to the media and the nature of their exposure and how it affected them.

Buzz Scherr:

It's not surprising case law, it's pretty standard case law. And the judge clearly did not do that when he prohibited the defense lawyers from asking that question. And so it really, in that sense, it's not surprising at all that the death sentence was overturned and got sent back for another sentencing hearing. But it's also surprising that it got overturned, because death sentences don't usually get overturned that frequently.

Buzz Scherr:

So it's both surprising and not surprising. As a technical legal matter, not surprising at all, but as a ... Just at a more, a broader level, you don't see that very often. Particularly in a jurisdiction like the First Circuit where you don't see these cases very often. And so the prosecutors are very careful.

A. J. Kierstead (Host):

Now, what sort of previous cases could you reference as being a prime example of this being avoided in the past? I mean, there's been some domestic terrorism cases previously that I'd imagine ... Where they took precautions to make sure things like this didn't happen.

Buzz Scherr:

Yeah. Many of those cases are not capital cases, but really, there's no difference. If it's a high publicity case, there's no difference between a capital case and a first degree murder case or any kind of case. You want to make sure ... In New Hampshire, the New Hampshire Constitution, for example, says, you are entitled to jurors who are as fair as the lot of humanity will allow. It's a wonderful description of fairness and what you aspire to. And the federal constitution entitles you to fair jurors and fair judges.

Buzz Scherr:

So it's not unusual at all for judges to take precautions in screening jurors in high publicity cases. The two most common ways to take precautions is to change the venue, send it someplace else. It's really simple. It costs the court a little more money, but really they got to try the case somewhere, so it's not going to cost the court that much more money. Really, it's just the judge goes someplace else and sits there and does it, or another judge does it in another jurisdiction.

Buzz Scherr:

Particularly in ... A federal court can send it to any federal jurisdiction in the country. You don't need to even send it to Springfield, the other jurisdiction. You can send it to Connecticut, you'd send it to New Hampshire. You could send it to upstate New York. You could send it Arizona. It doesn't really matter, because it's a federal case and the law in all those jurisdictions are the same.

Buzz Scherr:

It's a little harder at the state level to change venue. You can send a Manchester case to Coos County or a Dover case to Cheshire County to change venue if there's high publicity in that jurisdiction.

Buzz Scherr:

But the other way to do it is to screen the jurors carefully. And it just takes time. The problem with screening jurors carefully is it takes time. When I was trying first degree murder cases, and we were doing the kind of voir dire ... Which is the screening process for jurors. Means to say the truth. It would take, to pick a jury of 14, 12 and two alternates for a first degree murder case, I've taken two or three weeks to do that. It's just a laborious, difficult, challenging process.

Buzz Scherr:

And courts get grumpy about it, because it takes up so much time, and it costs money because you're bringing in a number of jurors that you have to pay their juror fee for the day. It's not much, but it accumulates when you bring in a panel of 200 jurors and you screen out 120 of them because they know too much about the case, just by asking them general questions and they say, I can't be fair about this by raising their hand. And then you're left with 80, and then you go through the individual process and you get maybe three jurors that are acceptable to both sides of that process.

Buzz Scherr:

So it's expensive, it feels inefficient. So that's the pressure on judges to ... Let's just get on with it. I'm not going to let you do all this questioning. So that's really what was going on in that case.

A. J. Kierstead (Host):

So what's the next steps for the Tsarnaev sentencing? I'm assuming they're going to have to find a new jury to do the sentencing over again.

Buzz Scherr:

Yeah, actually there's a couple steps before that. The prosecution has yet this decision was issued by a three judge panel of the First Circuit. All appeals, with the rarest of circumstances, that appeal from federal district court to the First Circuit are heard, in the first instance, by a panel of three judges. They come out with their ruling. The losing party then has the opportunity to ask for an en banc hearing a rehearing of the appeal in front of the full First Circuit panel of judges, like nine or 12. I forgot how many there are now currently on the First Circuit.

Buzz Scherr:

And so the prosecution has that option. They can file and ask for a rehearing for the whole panel of First Circuit judges. Or, they can try and go directly from ... The three judge panel, they can try and go directly to the US Supreme Court. But likely, they'll ask for the en banc panel before they try and go to the Supreme Court. So that needs to play out whether they're going to do that or not. Then they can go ... Assuming the ruling stands in some fashion, then they'll have to pick a whole new jury in a better fashion, or a new sentencing hearing.

Buzz Scherr:

Or the prosecution can say, look, it's not worth it. We can live with him being in jail for the rest of his life. On other charges, he's already gotten life without parole sentences. Whatever comes of this, he's going to serve the rest ... As the court made clear in its opinion, he's going to serve the rest of his life in jail. So the prosecution can make that judgment.

A. J. Kierstead (Host):

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