Federal appeals court tosses Tsarnaev death sentence, orders new penalty-phase trial – The Boston Globe

The 224-page ruling ordered a “new trial strictly limited to what penalty Dzhokhar should get on the death-eligible counts.”

The ruling emphasized, “just to be crystal clear … Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.” Tsarnaev was also sentenced to 20 life terms, the ruling noted.

Patricia Campbell, whose daughter Krystle was one of the three who died near the finish line of the Boston Marathon, was livid to learn that Tsarnaev’s sentence had been vacated.

“I just don’t understand it,” she said. “It’s just terrible that he’s allowed to live his life. It’s unfair. He didn’t wake up one morning and decide to do what he did. He planned it out. He did a vicious, ugly thing.”

She said she wasn’t sure whether she would return to court to try to persuade another judge to reimpose the death penalty.

“I don’t even know if I’d waste my time going,” Campbell said. “The government’s just wasting money. He should be dead by now for what he did.”

Bill Richard, whose 8-year-old son Martin died a block away, declined to comment.

He said the Globe should refer to an essay he and his wife, Denise, wrote in 2015, in which they called for Tsarnaev’s life to be spared shortly before he was sentenced to death.

“We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal,” they wrote at the time.

They added: “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”

A spokeswoman for US Attorney Andrew E. Lelling’s office said Friday afternoon that prosecutors were still reviewing the ruling and would have more to say in the coming weeks. Two of Tsarnaev’s appellate lawyers didn’t immediately return an e-mail seeking comment.

Thompson was joined on the three-judge panel by Judges Juan R. Torruella and William J. Kayatta Jr.

Tsarnaev, now 27, was sentenced to death in 2015 for his role in the bombings two years earlier that killed three people and wounded hundreds more. He and his older brother, Tamerlan, also killed an MIT police officer while they were on the run.

Tamerlan Tsarnaev died in a confrontation with police in Watertown days after the blasts. Dzhokhar Tsarnaev eluded police initially but was captured later the same day.

The ruling found that the lower court judge, George A. O’Toole Jr., had not correctly handled the process of voir dire, when jurors are asked questions to determine whether they are suitable jurors.

Thompson wrote that “decisions long on our books say that a judge handling a case involving prejudicial pretrial publicity must elicit ‘the kind and degree’ of each prospective juror’s ‘exposure to the case or the parties,’ if asked by counsel — only then can the judge reliably assess whether a potential juror can ignore that publicity, as the law requires. But despite a diligent effort, the judge here did not meet the standard” set in those previous decisions.

The defense had argued at trial that Dzhokhar was led in the marathon plot by his domineering, violent older brother; prosecutors contended that Dzhokhar was a willing participant who became radicalized on his own.

The ruling also suggested jurors should have been told about the older brother’s alleged involvement in a prior triple murder in Waltham.

“If the judge had admitted this evidence, the jurors would have learned that Dzhokhar knew by the fall of 2012 that Tamerlan had killed the drug dealers in the name of jihad,” Thompson wrote. “They also would have known that it was only after these killings that Dzhokhar became radicalized as well: Evidence actually admitted showed that Dzhokhar first flashed signs of radicalization — as is obvious from his texts on jihad — after spending a holiday break with Tamerlan several weeks or so after learning about the Waltham murders.”

Thompson conceded that “a jury armed with the omitted evidence still might have recommended death. But the omitted evidence might have tipped at least one juror’s decisional scale away from death.”

Friday’s ruling also reversed three Tsarnaev convictions for carrying a firearm during crimes of violence.

This is a breaking news story that will be updated.

Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe. David Abel can be reached at david.abel@globe.com. Follow him on Twitter @davabel. Tonya Alanez can be reached at tonya.alanez@globe.com or 617-929-1579. Follow her on Twitter @talanez.

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