Not only did a three-judge panel of the First Circuit Court of Appeals throw out Dzokhar Tsarnaev’s death sentence, they also threw out three counts on which he was convicted. That still leaves more than enough convictions to ensure the Boston Marathon terrorist remains in prison for the rest of his life, the court writes in attempting to reassure everyone of the impact of the ruling, but it will likely be cold comfort to his victims. Tsarnaev didn’t raise innocence as a defense in his first trial, which means the witnesses will have to endure a full do-over in a new penalty phase:

Tsarnaev’s legal team had pushed to change the venue of the trial to a courthouse that wasn’t so close to the site of the bombing, in the heart of a town so affected by the tragedy. The appeals court judges agreed, saying, “One could not turn on the radio either without hearing something about these stunningly sad events.”

The appeals judges ruled that US District Court Judge George O’Toole, who oversaw Tsarnaev’s trial, “fell short” of his promise to question jurors thoroughly enough to identify the degree to which they had been exposed to facts of the case through media coverage, “providing sufficient ground to vacate his death sentences.”

Part of the appeals court’s ruling was a decision to reverse three convictions for charges that Tsarnaev was carrying a firearm in connection with his possession of a pressure cooker bomb. The ruling tells the district court to enter judgments of acquittal on those charges, put together a new jury and preside over a new trial that strictly focuses on what penalty Tsarnaev should receive for the counts that are eligible for the death penalty. Tsarnaev’s attorneys had filed a post-trial motion for judgments of acquittal on these convictions that the district court judge denied.

The court’s opinion, meandering and written like a bad novel at times, orders a new penalty-phase trial with more detailed voir dire and potentially (but not likely) reopening a debate over venue. The panel objected to the judge’s decisions to remove very case-specific questions the defense proposed, noting that he had promised to cover the same ground with jurors in instructions but failed to do so. The court ruled that just asking whether jurors had generally heard about the case was not sufficient, but that the judge had the duty to require them to specifically state what they had heard:

Even assuming (favorably to the government) that the judge did not reversibly err on the venue question, he still had to oversee a voir-dire process capable of winnowing out partial jurors through careful questioning — indeed, in denying Dzhokhar a venue change, the judge premised his analysis in part on a pledge to run a “voir dire sufficient to identify prejudice.”25 But performance fell short of promise, providing (as Dzhokhar’s counsel said at oral argument) a sufficient ground to vacate his death sentences — even on abuse-of-discretion review. …

The rationale for the Patriarca standard is obvious. Decisions about prospective jurors’ impartiality are for the judge, not for the potential jurors themselves. See, e.g., United States v. Rhodes, 556 F.2d 599, 601 (1st Cir. 1977). And that is because prospective jurors “may have an interest in concealing [their] own bias” or “may be unaware of it.” Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (O’Connor, J., concurring); see also Sampson v. United States, 724 F.3d 150, 164 (1st Cir. 2013) (“Sampson II”) (emphasizing that “a person who harbors a bias may not appreciate it and, in any event, may be reluctant to admit her lack of objectivity”). So asking them only “whether they had read anything that might influence their opinion” does not suffice, for that question “in no way elicit[s] what, if anything,” they have “learned, but let[s] [them] decide for themselves the ultimate question whether what they [have] learned had prejudiced them.” Rhodes, 556 F.2d at 601.

With these principles in mind, we have held that a judge in a high-profile case “fully complied with” Patriarca by asking potential jurors if they “had read or heard anything about the case in the newspapers, on television[,] or radio” — and if so, by “prob[ing] further as to the extent of such knowledge.” …

With Patriarca’s prerequisites satisfied, the judge had to ascertain not just the “degree” but the “kind” of “exposure to the case or the parties” that the prospective jurors had experienced, see 402 F.2d at 318 — that is, “what [they] ha[d] read and heard about the case,” see Am. Bar Ass’n, Standards Relating to Fair Trial and Free Press § 3.4(a), at 130 (cited in Patriarca, 402 F.2d at 318). But as to 9 of the 12 seated jurors, the judge fell short on this front.

This seems reasonable — if the defendant was raising innocence as a positive defense at trial. Tsarnaev, however, wasn’t contesting the charges. He only put on a defense against the death penalty. The court even notes that “most of the publicity was true,” thanks to the opening and closing statements of Tsarnaev’s attorneys. The opinion even has a footnote that “the government proved
the death-resulting element beyond a reasonable doubt,” which makes this even more of a head-scratcher.

The jury wasn’t asked to consider innocence, but whether the crimes qualified for the death penalty, which means that none of the usual pre-trial publicity would have mattered much either way. The defense still got to present its mitigation arguments; the government presented its evidence of the suffering of the victims; and the insult of a terrorist act to any community would have been obvious even to people brought out of a 20-year hibernation to make this judgment. The arguments in this appeal all make sense only if Tsarnaev didn’t stipulate to being the perpetrator of the crime and forced the government to prove those elements at trial.

The only dissent on this case didn’t go in that direction. Rather, in his partial concurrence, one judge wanted the death penalty and all other sentencing thrown out over the venue decision. That one actually makes some sense, but again mainly for a trial rather than a sentencing. The errors in presented in the opinion on the voir dire seem trivial and perhaps not much like errors at all, given the circumstances of the guilty plea.

Will the government appeal this decision to the Supreme Court? It might just be easier to hold another penalty-phase hearing, as it could take a year for the Supreme Court to rule on this. One can easily imagine a split court on a case like this, and it might be tough to predict just where that split would occur. Tsarnaev will spend the rest of his life in prison either way; it’s just a question as to when it will come to an end, and how. That’s still the bottom line, and it hasn’t actually changed all that much yet.