The federal judge who presided over his 2015 trial was ordered by an appeals court in March 2024 to investigate defense claims that two jurors were biased and should have been stricken from the panel. If he finds they were, then Tsarnaev is entitled to a new trial over whether he should be sentenced to life in prison or death, according to the appeals court.
That inquiry by US District Judge George A. O’Toole Jr. has been shrouded by secrecy. Last year, the judge ordered all filings submitted under seal, citing concerns about the jurors’ privacy and protecting the integrity of the high-stakes proceedings, though he later released some. And, recently, O’Toole denied a request to remove himself from the case by Tsarnaev’s lawyers, who argue that comments he made about the case on a podcast and at public events raise concerns about his impartiality.
The defense has urged the US First Circuit of Appeals to overturn the judge’s refusal to step down.
Marc Fucarile, a Marathon bombing survivor who lost his leg in the 2013 blast, called the ongoing legal battle to overturn Tsarnaev’s death sentence “a disgrace for us victims.”
“The video evidence shows what he did — so why are we even talking about it 12 years later?” Fucarile, 46, of Reading, said during a telephone interview. “I think he needs to be put down to show that it’s not okay to kill innocent people. There has to be consequences.”
Fucarile, who created a non-profit that supports the mobility impaired community and plans to be at the 2025 Boston Marathon cheering on eight runners who are raising money for his foundation, said it’s frustrating that “taxpayer dollars are going to defend a murderer,” while he fundraises for donations to help people.
“I want him dead because the quicker he’s dead the less money we have to continuously spend on him,” Fucarile said.
Other bombing victims had cited the likelihood that the case would drag out as their reason for supporting a life sentence for Tsarnaev if he were to waive his appeals. In a 2015 open letter to the Globe prior to Tsarnaev’s sentence, Bill and Denise Richard, whose 8-year-old son Martin was killed in the blasts, wrote that the pursuit of the death penalty “could bring years of appeals and prolong reliving the most painful day of our lives.”
Attorney William Fick, who represents Tsarnaev, declined to comment. A spokesperson for the US Attorney’s office, which has opposed Tsarnaev’s efforts to overturn his sentence, also declined to comment. New York attorney George Kendall, who has handled hundreds of death penalty cases and followed Tsarnaev’s sentencing trial closely, said it can take decades to resolve legal issues in complex capital cases, and that “it’s not at all unusual” that Tsarnaev’s appeals are continuing to be addressed by the courts.
“I think most people understand that, because of the stakes involved, these cases have to be reviewed carefully,” Kendall said. “Most people would agree that if there are indications that two jurors were not candid during jury selection when their answers were given under oath, that’s a serious issue and that needs to be further explored.”
Tsarnaev, 31, the son of Chechen immigrants who was raised in Cambridge, is being held at a federal supermax prison in Colorado. He admitted during his trial in federal court in Boston that on April 15, 2013, he placed a bomb in a backpack in front of the Forum restaurant on Boylston Street that killed Richard and Lingzi Lu, a 23-year-old Boston University graduate student from China. Tsarnaev was also found responsible for killing MIT police Officer Sean Collier days after the blast while he and his brother were on the run.
The jury that heard Tsarnaev’s trial recommended death, rejecting claims that the then 19-year-old was not responsible because of the influence of his brother. In 2020, the US Court of Appeals for the First Circuit overturned Tsarnaev’s death sentence, ruling the trial judge failed to thoroughly question jurors about their exposure to publicity about the bombings and had unfairly excluded evidence that bolstered defense claims that Tsarnaev was controlled by his brother. Two years later, the US Supreme Court reinstated Tsarnaev’s death sentence, ruling that he received a fair trial.
Then, in March 2024, a panel of the First Circuit Court ruled 2-1 that O’Toole erred by denying a defense request to excuse two jurors during jury selection without thoroughly investigating claims that they lied about social media posts.
O’Toole was ordered to investigate potential juror bias, and hold a new sentencing trial for Tsarnaev if he concludes that either of the jurors should have been stricken from the panel. During jury selection one juror said she had not commented about the case, but the defense found she had tweeted or retweeted 22 times about the bombings, including a retweet calling Tsarnaev a “piece of garbage,” according to court filings.
Another juror said none of his Facebook friends had commented on the trial, yet one friend had urged him to “play the part” so he could get on the jury and send Tsarnaev “to jail where he will be taken care of.”
The judge denied a defense request to question the two jurors about the online comments while jury selection was still underway. Now, the First Circuit is weighing the defense’s request to order O’Toole to remove himself from the case, which would require it to be randomly assigned to another judge.
It’s also unclear what impact the Trump administration’s stance on the death penalty may have on Tsarnaev’s case. The Biden administration had imposed a moratorium on federal executions, but continued to support the government’s pursuit of the death sentence for Tsarnaev. Shortly after beginning his second term in January, Trump issued an executive order calling to “restore” the federal death penalty.
Historically, federal executions have been rare in the United States. Only 16 have been carried out since the reinstatement of the federal death penalty in 1988, according to the Death Penalty Information Center, a Washington, D.C., nonprofit that analyzes issues concerning capital punishment.
Thirteen of those occurred in the final six months of President Trump’s first term. “We have a lot of enthusiasm being expressed by President Trump for the increased use of the death penalty,” said Robin M. Maher, executive director of the Death Penalty Information Center. But, she said, “it’s a little too soon” to tell how he plans to do that.
Source: bostonglobe.com, Shelley Murphy, April 17, 2025
"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
but by the punishments that the good have inflicted."
— Oscar Wilde
No appeals for mass murderers
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