Title image: Dzhokhar “Jahar” Tsarnaev (second from right) with a friend and wrestling coaches at Cambridge Rindge and Latin School.
Holy cow.
I’m writing this a few days late because, honestly, I’ve been in shock since Friday afternoon. That’s the day when, as many of you probably have already heard, the First Circuit Court reversed Jahar’s death sentence and ordered a new penalty phase. They also vacated three of his actual convictions — ones having to do with the residual clause of a statute under which he was convicted for possession of the Ruger that killed Officer Sean Collier (which has been discussed on this blog here a few years ago). We haven’t had a chance to go through the entire court decision (which you can also read here), but I thought addressing it in at least a preliminary way was in order.
Such as, what does this mean?
It’s a victory, unequivocally. My prevailing emotion has been relief. This means no one can execute Jahar any time soon, an especially comforting fact since the Trump administration recently resumed executing federal prisoners. It also opens the door to a slew of other legal challenges in Jahar’s case. I’ll leave the in-depth legal analysis for my father once we’ve had a chance to read and digest the decision, but as he put it, “There were three possible outcomes: an A+ [overturning the death sentence and all convictions], an A- [overturning just the death sentence], and an F [upholding the convictions and death sentence]. We got the A- outcome.” Although I was cautiously optimistic after attending the appeal hearing last December, ever since the death sentence verdict back in 2015, I never expected a court decision to go Jahar’s way this early in the process. Given the numerous systemic problems plaguing the American justice system, any favorable outcome to a defendant is extraordinary and should be celebrated.
That said, this fight is far from over. As my research over the last five years has revealed, a new penalty phase is not sufficient to right the wrongs present in Jahar’s case. I strongly disagree with the First Circuit judges’ opinion that Jahar should remain incarcerated for the rest of his life. There are far too many errors and inconsistencies in the court record that suggest not only virulent anti-Muslim prejudice toward him, perpetrated by law enforcement and government prosecutors, but in many instances cast significant doubt on his guilt in the first place. Justice will never exist for Jahar until these errors are corrected and he is given a legitimate chance to defend himself.
It is my sincerest hope that his lawyers will pursue this angle for him in the future. In the mean time, it is incumbent upon those of us who care about fairness in the American justice system to understand that this case is not an outlier, but a cog in a larger mass incarceration machine designed to entrap people like Jahar. Although through my years of research I have come to understand him as a thoughtful, intelligent and kind-hearted person, our justice system cares nothing for his individual qualities. In their eyes he is nothing more a Muslim and an immigrant — that is, part of a population that must be controlled. Through decades of Republican-led and Democrat-encouraged coalitions like the War on Drugs, the War on Terror, and the Trump Administration’s racist and draconian immigration policies, our prison system’s main purpose has become to house an increasingly expanding list of societal “undesirables.”
I know I have an international audience, but for my fellow Americans, I implore you: if you care about Jahar, please take political action to support progressive policies aimed at prison reform and ending mass incarceration. It took me years to realize just how interconnected these issues are, and to face the terrible truth that all the egregious and arbitrary injustices in Jahar’s case do not exist as an exception to the rule, but as a perfect example of it. If we can chip away at the unfair laws holding him where he is, I believe we can make a difference in his life and the lives of many others.
That’s all for now. I just want to say congratulations to Jahar, his family and his lawyers, and thank you to everyone who has stayed interested in this case for the last five years, encouraging me to investigate it and aiding with the effort. I wouldn’t have gotten this far without you, and I think it is more important than ever that Jahar’s story — the real story — reach as many people as possible.
Stay tuned.
US v. Tsarnaev 
I’m glad for Dzhokhar. I hope he will be free someday soon.
You and me both!
Thank you, Heather. I’ve been waiting your post for months, so grateful
Thank you so much. To be honest, I’m still trying to process the news myself!
I also strongly disagree with a life sentence for Dzhokhar. I wish more people would take the time to read the details of this case instead of just believing the media narrative. Thanks for the update and the links!
Yes, I’m disappointed it wasn’t a full overturning of all the convictions, but it’s such a relief to know the death penalty is off the table for now! This means there’s room to focus on something other than saving Jahar’s life, and I think it’s more important now than ever that the real story reach a wider audience. You’re welcome, and we’ll be back soon with a more in depth discussion. 🙂
Heather, in reading the court’s decision it appears the defense’s strategy for Dzhokhar to “admit” guilt had a huge impact on how the appeal judges view the case. I believe you wrote about this strategy before – what’s the link to that post? or what should I search to reread that?
I may have written it about it a few times, but the post that comes to mind is the one that summarizes my thesis (and I talk about it in more depth in the thesis itself, particularly in Chapter 2 in the sections comparing the prosecution’s and defense’s opening statements):
https://usvtsarnaev.org/2019/10/29/regimes-of-truth-why-everything-known-about-the-boston-marathon-bombing-is-wrong/
Yeah, it’s clear the appellate judges haven’t read my thesis!
Great news! thanks for the updates and summary, Im really excited for how his future may be after this round! Thanks Heather and look forward to more about it soon.
You’re welcome! We’re reading through the decision now and I’m taking copious notes, so a more detailed discussion is on the horizon. It’s not perfect, but it’s definitely a step in the right direction!
I felt great joy at first. But then sadness hit me. The thought of Jahar (he’s 27 now, he was 19 when it happened ;( ) spending the rest of his life in a tiny cell, with only 5 hours of time outside of it each week (FIVE!!!), with the gagging order still in place breaks my heart.
The hate I have seen towards him ion Twitter from people who obviously know nothing about the case and its inconsistencies breaks my heart.
I wish his lawyers were a bit more aggressive. I wish Judy Clarke Never defended him in the first place, she caused so much damage.
I really hope the next step will be overturning all convictions. It was the more biased and unfair trial I ever seen. But are his lawyers even trying?Is it possible to ask for it now that the death penalty has been overturned? How many more years? I really struggle to feel happy for him and his family.
Hi Sand! Good to hear from you.
I’m totally with you. I certainly am not backing down from the position that Jahar needs to be released one day. I also think the appellate judges have put too much weight on the admission of guilt at the outset, that it was a mistake from the start and likely constitutes ineffective assistance of counsel.
We’re still reading through the decision but soon we’ll be back with a lot more to say about it. Regardless, it is still a HUGE relief to have the death penalty removed, which opens up other possibilities aside from just trying to save Jahar’s life. Overall, it is a good outcome, though not the perfect one I was hoping for… but much, MUCH better than if they’d upheld the death sentence.
More soon!
Thank you Heather. Indeed it is a victory but in my opinion only a half victory. Nevertheless it does open the door to a full victory. I do not understand the two other appellate Judges who did not see that a change of venue was necessary in this case. They both agree that Judge O’Toole erred in the process of sitting 12 impartial jurors. Judge O’Toole instructed those 12 jurors that the opening statement was not PROOF and that they had to look at the only evidences presented during the trial. Because Judy Clarke mentionned in her opening statement that ‘it was him’, for those jurors the trial was over – he was guilty period. Those 12 jurors were unable to follow the Judge’s instruction. If you remember the only juror that went public after the trial said that ‘it was honest of his lawyers to admit to guilt’.
I sincerely hope that the real story will come out soon
I absolutely agree. I’m about halfway through the decision, so I’ll have more to say soon. But I think the appellate judges put far too much weight on the so-called “admission of guilt” – a strategy I don’t think should have been attempted, but even so, I don’t think it amounted to a concession that Jahar did “everything the government alleged,” as the appellate judges claim.
There is still much to be argued, I think, but taking the death penalty off the table is a tremendous feat nonetheless. More soon!
Hi Heather, its been a long time. I am wondering that for now Dzhokhar is no longer facing the death penalty, so will he be housed somewhere else, maybe in general population, or at a different prison, and what about the sam’s,will they stay in place or is that just a torture specifically for all those considered terrorists. It would be great if he could be moved closer to his sisters.
Hi Julie. It’s go good to hear from you again! I hope you are doing well.
My current understanding is that the SAMs stay in place regardless of Jahar’s sentence. It is the FBI that must remove them and they hardly ever do that – usually they just auto-renew every year. Or that was my understanding a few years ago and I’ve not heard there has been any change to this procedure, unfortunately. I hope there could be a legal or legislative challenge to their constitutionality, because I agree they are draconian, especially for someone like Jahar with no proven “criminal network.”
However, to be honest, as much as I would also like Jahar to be closer to family, with the current COVID-19 pandemic, he is probably in the safest facility he could be right now – it’s one of the few I know of that can handle proper social distancing measures.
I get that everybody is happy about this, but did you ever stop and think about the victims and how THEY are dealing with this? They are extremely enraged and that sentiment is shared by much of Boston.
I do understand not wishing for the death penalty in this case. I myself was hoping that he would receive LWOP at his first trial. I really don’t understand this sentiment where you want him freed. I completely understand you wanting to show him some mercy, but in my estimation, this is excessive.
Stop and think what that would do to the victims. Imagine if someone killed one of your loved ones or they took one of your legs and you then had to go through the rest of your life like that. Would you want that person freed?
Also did you ever stop and consider the fact that IF you got your wish and he was freed, someone would probably kill him anyway? Revenge is a basic human desire.
Respectfully, I ask that you please consider the victims in this and not just your sympathy for Dzhokhar Tsarnaev.
I understand your opinion, but I unfortunately find most of your argument to fall victim to the “appeal to emotion” logical fallacy. I have been told since the day of the bombing to “think of the victims,” wielded as an excuse to not think critically about the crimes, the suspects, and the prosecution of Jahar as an “Islamic terrorist.” I don’t find it productive. Nor do I find subjective hypothetical questions as such. (Although, to answer your question, yes, if I were a victim of such an attack, I would want that person freed. If that person were truly guilty as accused, I hope he or she would receive restorative instead of retributive justice, and would be able to return to society one day. But my personal feelings on the matter are largely irrelevant – they’re usually used as an ad hominem attack, a way to attempt to catch me in some sort of nonexistent hypocrisy. Again, not productive.)
Yes, I agree that the possibility of another penalty phase is sad, unnecessary and traumatizing for everyone involved – the victims as well as Jahar. But that is not Jahar’s fault. If the government wanted to avoid challenges to the outcome, it should have conducted itself in accordance with the law. It did not, and Jahar did not receive due process. He is due the same amount of respect and fair treatment as the victims. Full stop. If you do not agree that all citizens of this country deserve equal treatment under the law, this is not the place for you. My mission from the beginning has always been clear – to obtain a fair trial for Jahar – and in light of this, I do not find anyone’s responses here excessive. There are plenty of other online spaces reserved for whatever misplaced anger people feel for him. If that is how you feel, I invite you to seek them out.
Hi Heather.
This is great. I’m not an American but I don’t believe in the death sentence at all. Part of me is surprised this has happened as I didn’t think it would be overturned! I have been following what you’ve been posting for well over a year now because I find your work so interesting and I too see the cracks and problems within this case. Have ever tried to send a letter to him, or this not allowed? I’ve seen people sending letters before to people on death row etc but I’m unsure on the rules. I would be so interested to hear what he had to say, I don’t think we’ve heard from him since his trial. If you got the opportunity to do this, would you? And would you share it with us
Hi TW! It’s nice to hear from you. I am so happy to hear you have been finding the blog enlightening. I too do not believe in the death penalty at all, and don’t like at all that America is an outlier in the world in having one (along with other authoritarian regimes like China and Saudi Arabia… yikes). I am also pleasantly surprised anything went Jahar’s way this early as well! There is still much to be done, but this is a better ruling than I was expecting at this stage, to be honest.
Unfortunately, due to another arbitrary and draconian law, Jahar cannot currently receive mail from anyone but immediate family. This is because shortly after his arrest, the government imposed something called “Special Administrative Measures” (or SAMs for short) on him – predicated on the idea that he was a dangerous terrorist who might communicate criminal information to associates elsewhere… with no proof any such associates exist. These are still in place today, which is especially ironic given the recent slew of corruption convictions in high levels of the American government. For some reason no one has imposed SAMs on them, even though in certain cases (such as Paul Manafort) they WERE caught giving criminal direction to associates from prison. Must be nice to be an old rich white man in America….
If I had the opportunity to write directly to Jahar, I certainly would. There are many, many things I would like to ask him, and I would like to be able to better represent his story through his own words. However, I would not share anything unless he gave me permission, and I’d understand if he opted not to do that (for legal as well as personal reasons). Perhaps this is something that can be revisited one day. But I think it is important to remember that no one has heard from him since the trial because the government will not permit him to be heard. One must wonder what they are so afraid he might say.
Thanks for your thorough response as always. I thought that might be the case! I always found it weird that we haven’t heard from him yet we hear from so many other prisoners over the years. What kind of stuff do you think they’re afraid of him saying? Also, what are you hoping happens next with the court case? There are a lot of angry people on Twitter in regards to the overturn of the death sentence, including tweets from donald trump JR so I wonder how this will play out and what will happen next