By Chris O’Brien
BU News Service
BOSTON — The defense for Boston Marathon bomber Dzhokhar Tsarnaev requested Thursday that the First District Court of Massachusetts “vacate or remand” the case and death penalty verdict, claiming the influence of media coverage of the 2013 terrorist attack had influence on the jurors.
“This case should not have been tried in Boston,” said defense attorney Daniel Habib in a courtroom crowded with reporters, police and survivors.
Habib made the argument that the jury selection process did not adequately screen jurors for prejudice, and that when this issue was raised by the defense during the 2015 trial it was ignored.
In his statement, Habib described how five of the 12 jurors had donated to victims of the bombing and cited two instances of jurors’ social media activity that he characterizes as “statements of bias that couldn’t be more potent.”
The foreperson, “Juror 286,” falsely denied posting about the attack on social media, where it was later discovered she had called Tsarnaev “a piece of garbage” and expressed sympathy for the victims of the attack. Habib raised the point that another juror had been dismissed for similar posts.
Juror 286 also was affected by the “shelter in place” lockdown imposed on the Dorchester area during the manhunt for Tsarnaev, which Habib argued had effects on her perception of the defendant.
Another juror, “Juror 138,” started a Facebook thread about jury duty, which Habib claims broke the rule of jurors “allowing themselves to be exposed to discussion.” Juror 138 denied the allegation when questioned about this behavior during the selection process, according to Habib.
“These matters were brought to the courts while jury selection was ongoing,” Habib said. “The district judge did nothing about these jurors.”
“The judge didn’t ask anything of that juror, who was right in the building?” remarked Judge William Kayatta. “It’s very puzzling.”
Habib made the case that the root cause for the presumption of prejudice was that Boston was not an appropriate venue for a trial about a crime which “greatly impacted the entire community.” Habib referenced the Oklahoma City Bombing in 1995, where the trial for bomber Timothy McVeigh was held in Denver due to the large impact the attack had on the local community.
The government prosecution raised issue with the demand to vacate the trial, characterizing the 2013 bombing as an attack on the country and the Boston Marathon as a national institution.
“Jurors were repeatedly asked about exposure and indicated they gave very little regard to the reporting,” said U.S. Prosecutor William Glaser. “It would be inappropriate to remand this case.”
Additionally, the defense argued that withheld case information about a triple homicide in Waltham involving Tsarnaev’s older brother and conspirator Tamerlan Tsarnaev on Sept. 11, 2011 did not allow the defense to make the case for the influence Tamerlan had on his brother’s participation.
A search warrant for a vehicle involved in the triple homicide said Tamerlan and a friend had robbed three men in Waltham, one of which was described as a “close friend” of Tamerlan at the time. After binding and robbing the men, Tamerlan allegedly decided to “eliminate witnesses.”
The three men were found tied up, beaten and with their throats cut out.
Government prosecutors claimed that Tamerlan characterized the murders as a jihad to his brother Dzhokhar. The defense did not agree with that characterization and argued that the triple homicide is indicative of the power, fear and influence that Tamerlan had over his brother prior to the 2013 terror attack.
It is unclear when the three-judge panel will make a decision.
