Yesterday, judges on the First Circuit Court of Appeals heard oral arguments from Dzhokhar “Jahar” Tsarnaev’s appellate team about why he did not receive a fair trial in Boston. Eric Bowsfield and I attended the hearing, and here are our biggest takeaways.
(Edit 12/16/19: No electronics were allowed in the courtroom, so the quotations from our notes are approximate. A full audio recording of the hearing has been released and is available here.)
The Arguments
The oral arguments were heard by a panel of three judges: O. Rogeriee Thompson, William Kayatta, Jr., and Juan Torruella. Thompson and Kayatta are Obama appointees; Torruella was appointed by Reagan, but is the first Circuit Judge to hail from Puerto Rico and wrote the dissenting opinion in favor of moving Jahar’s trial from Boston in 2015.
One of Jahar’s appellate attorneys, Daniel Habib, argued the case. Focusing on three main points, he asserted the following:
- The trial should not have been held in Boston because the “whole city was traumatized” by the scope of the Boston Marathon bombing attacks. Afterward the whole community adhered to a “Boston Strong mentality” united around the framing of Jahar as the guilty party. Habib did make an interesting distinction, however: that they were not asking the First Circuit to make a decision where a retrial should take place in the event of a remand, because that was not their job and decisions about change of venue are “case and context specific.” However, they were asking for a remand so that a more thorough vetting process could be used to decide if Boston might be an appropriate venue now, given the longer passage of time.
- Two seated jurors lied under oath during the selection process, called voir dire, about matters which affected their ability to be impartial. One used social media to call Jahar “a piece of garbage,” while another defied Court instructions not to discuss the case on social media by going on Facebook and writing that it was “legit crazy” he was seated just ten feet from a terrorist. This status message went out to the juror’s 590 Facebook friends, and one of them commented that the juror should “play the part, get on the jury, and send Tsarnaev to prison where he will be taken care of.” Despite this, trial judge George O’Toole took “no investigative action” when it came to vetting the jurors in this way. Habib also brought up an issue with the juror questionnaire, in which the Court decided not to use two content-based questions about what prospective jurors had read, seen or heard about the case in pretrial publicity, and what stuck out most to them about it.
- The Court erred in refusing to allow the defense to use evidence from the Waltham triple murder case, in which compelling evidence existed that Tamerlan was one of the perpetrators. This evidence was “reliable enough” for the government to obtain a search warrant for Tamerlan’s car after interrogating his suspected accomplice in these murders, Ibragim Todashev. Regardless, the defense was unable to use any mention of the Waltham triple murders during the penalty phase as mitigating evidence, despite the information from Todashev’s interviews with law enforcement containing evidence that Tamerlan devised that crime and escalated it from robbery to murder without Todashev’s prior knowledge of this intent. Habib contended that these factors could have aided the defense’s argument that Jahar acted under the influence of his brother, and contested the prosecutors’ argument that Jahar was “equally culpable” due to voluntary involvement in the Marathon bombing and related crimes.
At the beginning of the oral argument, Habib stated that yes, the appellate team was asking for vacation of both the convictions and death sentence, but were “open to the possibility” of just the overturning of the sentence.
Our Analysis
The Defense’s Argument
On Overall Impressions
Heather: I thought Daniel Habib argued the case well. However, I thought he could have been firmer at the beginning when specifying the appellate team sought both the overturn of Jahar’s conviction and sentence. Saying they were “open” to the possibility of only overturning the sentence felt like they were conceding far too much, as our research has shown there are dozens of egregious errors that only a return to the trial level could fix. However, Habib gained confidence as he progressed, and ended on a strong note.
On the Change of Venue Issue
Heather: It was nice to hear Habib make the argument that we have been making on this blog since the trial: that the city of Boston was so completely affected by the Marathon bombing and its aftermath that there was no way Jahar could have gotten a fair trial there. I understand the point made about reassessing the venue if Jahar were to be retried, but my instinct would be to err on the side of caution and get it as far away from here as possible.
Kayatta also posed an interesting question about venue change: whether Habib was “implicitly suggesting” that “the more heinous a crime is, the more likely” it is that the venue needs to change. Habib countered, “Not just how heinous, but the impact on the community.” I liked his specificity here, because it sidesteps the inherently subjective and moralizing component that would come with trying to define “heinous.” How heinous any action is quickly becomes difficult to measure — think, for example, the polarizing nature of the issue of abortion rights. In particular, I have long suspected that the larger aftermath of the Marathon bombing may not have reached the fever pitch it did if the identified suspects hadn’t been subjected to such large scale prejudice for being Muslim. In this way, Habib’s suggestion to use the impact on the community instead puts the standard in far more measurable terms.
Eric: I’d agree that the impact on the community is a far bigger factor in bias than how heinous a crime might be. I could sit on a murder trial in my community, for instance, but if I did not know the victim, the accused, or their family, the murder’s impact to me is pretty minimal, making my likely objectivity far greater.
On the Bias in the Jury Pool
Heather: I was heartened when all three judges seemed to be in agreement that social media provides a great tool for the Court to vet prospective jurors and previously settled case law states plainly that it is incumbent on the trial judge to conduct “a robust screening of the jury.” They also seemed baffled by Judge O’Toole’s decision not to remove the previously mentioned jurors who lied during voir dire when, as Habib stated, “Nothing would have prevented the District Court from excusing those jurors.” He argued that the issue of the juror who defied instructions and posted about the trial on Facebook an hour later was especially egregious, because it resulted in a situation where the “juror is being advised on how he should vote as a juror. The juror likely did exactly as his friend urged.” He added that the trial judge “has an obligation to investigate,” but in this case he “did nothing.” I certainly agree with that; that alone should be enough to grant Jahar a whole new trial.
The omission of the content-based questions in the juror questionnaire was also interesting, because it allowed the judges to comment on the issue of inaccurate, inflammatory and inadmissible pretrial publicity that might have been floating about in jurors’ heads as they went into the case. As my graduate research showed, the vast majority of pretrial media coverage contained misinformation about Jahar that was later contradicted by the court record. The judges seemed to be largely in agreement that O’Toole erred by not asking more detailed questions in regards to this, and relying only on the jurors’ self-assessment that they could “put aside” anything they’d previously heard about the case. Habib stated that asking, “Can you put aside what you have seen?” puts the “onus on the juror” when it should be “decided by the judge.”
On the Waltham Triple Murders
Heather: I was a little surprised that this actually got the least amount of discussion. The venue and voir dire issues were more interesting to the judges, which I suppose makes sense given their profession. Even so, they appeared to appreciate the argument that Tamerlan’s prior criminal actions and how he might have roped Todashev into his crimes could have helped Jahar’s mitigation argument.
I consider the Waltham triple murders to be the biggest mystery that endures in the larger context of this case. The government has been incredibly secretive about it since Tamerlan’s alleged involvement was discovered after the bombing in 2013. In particular, Habib referenced “digital communications” in the form of “emails” between Tamerlan and Todashev which referenced the murders and that Tamerlan was “justifying” them “with Islamic principles.” This is the first time I’ve heard of any evidence existing of Tamerlan’s involvement in the murders outside of Todashev’s confession, which was conducted in such a questionable manner that I have wondered about its validity. According to Habib, however, there’s more evidence on the record somewhere pointing to the likelihood that Todashev was telling the truth — it’s just been hidden from public view.
Eric: I was really glad that the defense attorney said that one of the victims of the Waltham triple murders was a good friend of Tamerlan’s. Because if you believe Jahar had good reason to fear his brother, that would be a pretty good explanation as to why. Like, maybe he was thinking, “My brother murdered his best friend and is telling me to do this.”
Heather: Yeah, like, “If he could murder his friend he could definitely murder me too.”
The Government’s Argument
On Overall Impressions
Heather: Honestly, it felt pretty lackluster. The government attorney, William Glasser, dodged questions by the judges, repeated talking points even when he’d been contradicted, and fell back on irrelevant Islamophobic claims about Jahar’s “radicalization.” I almost felt bad for him because it seemed like he knew the trial prosecutors had left him with a real mess to defend.
Eric: Yeah, I felt the same way. I’m not sure if that’s just our own bias showing, but the defense’s argument seemed a lot stronger.
Heather: Well, even if we are biased toward Jahar, at some point Glasser admitted that more content-based questions should have been asked and weren’t, a concession that Habib highlighted in his own rebuttal before arguments concluded. I think you can objectively say your argument isn’t going very well when you start agreeing with the other side.
On the Change of Venue Issue
Heather: This was by far the best quote I wrote down, when the government was trying to claim the verdict showed the jury was indeed impartial.
Glasser: “The jury declined to impose the death penalty on six counts.”
Judge Thompson: “You can only die once, how is that relevant?”
On the Bias in the Jury Pool
Heather: The judges really hammered the government on the omission of the content-based pretrial publicity questions on the juror questionnaire. One of the quotes I wrote down was, “Asking what news they read or saw doesn’t answer what information they saw and whether it was inaccurate.” When Glasser tried to insist that the content they consumed wasn’t relevant as “asking them to set aside what they learned,” a judge retorted, “You’re not supposed to let jurors make that assessment!”
Eric: The government made the argument that because of the questionnaires in the voir dire process, the “majority” were able to keep an open mind. The majority? Pretty sure you need everyone to keep an open mind on a jury. If a potential juror can’t keep an open mind, they need to be excused.
And to the content-based question, I thought it was weird that the government’s response was that they felt it would have been an unwarranted question to cite every single article they read or heard, which is true, but that’s not what was being requested in those omitted questions. I don’t think the jurors were being asked to include a bibliography of every single thing they’ve seen on the topic.
Heather: Yeah, and considering the second question was going to be, “What stuck out to you the most to you?” that would have been really helpful. Like, for example, if they’d said, “I definitely remember reading about his hospital confession, and he definitely said he and his brother did the bombing.” And that’s the confession that’s been deemed inadmissible. So you could just strike that juror off the list if you’d known that.
At this point Kayatta added, “Why not follow the rules if he’s so guilty of this heinous crime?” That always bothered me about the case. Like, if it’s such a slam dunk, why do you have to break the rules in order to convict him? I’m happy Kayatta seemed hip to that.
Eric: Also, the government claimed they took into account the “enormity” of the pretrial publicity? It took into account the enormity of the publicity, but not the content? How is that a good assessment of bias?
On the Waltham Triple Murders
Eric: The government’s argument was weird, because it tried to paint the Waltham triple murders as completely irrelevant to what happened at the Marathon. I think knowing your brother is a murderer is a factor on your reaction to his demands. I also think it was good that during the defense’s rebuttal he said that mentioning the Waltham triple murder was forbidden.
Heather: Yeah, the government tried to claim that the defense didn’t ask to bring in Jahar’s knowledge of the Waltham triple murders, and Habib was quick to point out that they’d been barred from mentioning the murders in their entirety, so anything involving Jahar telling his friend Dias Kadyrbayev about it would have been “meaningless.”
On the Government Trying to Deflect by Talking About Radicalization
Eric: The government made a claim that there was “overwhelming evidence” that Jahar was radicalized, which we know isn’t true. There isn’t overwhelming evidence that he was radicalized.
Heather: Glasser went on this Islamophobic rant about the Islamic nasheeds found on Tamerlan’s computer. I was rolling my eyes so hard. Those are are just normal religious hymns, but Glasser made them sound like they were written by terrorists. And radicalization wasn’t even argued by the defense either, so it seemed like it was out of left field. I think it was triggered because the defense had put in one of the briefs that the display of Jahar flipping off the camera in lockup interspersed with pictures of the victims and the prosecutors saying, “This was his message to his victims” was insanely prejudicial. So the government was trying to justify why they did that, I guess.
Eric: I think it’s worth pointing out that they put it in the middle of pictures of victims. Why add the finger picture at all? What’s the point? Glasser said they cleared it with the trial judge… who was notoriously perfect in this case.
Heather: Yeah, and the government tried to play it off like they weren’t trying to present any particular message by putting together that display, and Thompson retorted, “You put a display together to show something!”
General Conclusions
Heather: I’m trying to keep my expectations tempered because this could just be the beginning of a very long process, but I’m cautiously optimistic. The judges seemed especially taken with the defense’s claims that Judge O’Toole should have taken more advantage of the jurors’ social media profiles when vetting their exposure to pretrial publicity and bias against Jahar as a high-profile defendant. They were pretty quick to dismiss the nonsensical nature of many of Glasser’s counter-claims.
Eric: I share Heather’s cautious optimism. I don’t know everything that is before the judges, but based on their questions around the three pillars of the appeal case, it seems they are taking them seriously and asked many of the same questions I imagine I’d be asking in their shoes.
Heather: My dad’s been looking at some of the filed briefs too, so hopefully I can have him on soon to talk about about the more legally technical aspects of the appeal. Ultimately, I’m eager to hear what the judges think.
US v. Tsarnaev 