When the Supreme Court reinstated Dzhokhar Tsarnaev’s death sentence in 2022, the Biden administration had a federal execution moratorium in place. But Tsarnaev was among the few capital defendants whose sentences then-President Joe Biden declined to commute to life in prison, so the prospect of the convicted Boston Marathon bomber’s execution looms after the Trump administration restored the death penalty this year.
But whether and when his execution could occur is unclear, because he’s still pressing legal challenges while incarcerated in a Colorado supermax prison.
His latest effort is pending in the Boston-based U.S. Court of Appeals for the 1st Circuit. On July 31, a three-judge panel declined to grant Tsarnaev’s petition to force the recusal of the trial judge who is overseeing the remaining proceedings regarding alleged juror bias.
“The basis for recusal is observations the judge made at various times over the past nine years in the context of two educational panels and a podcast, and certain statements he made to the jury,” the panel recounted while rejecting the petition, which the judges concluded had failed to meet the high bar for the sort of relief he sought.
Successfully opposing his petition, the Justice Department wrote that a “reasonable person would find Judge [George] O’Toole’s remarks to be typical of the praise that judges commonly offer after a jury has performed its civic duty and returned a rational verdict based on the evidence.”
Now Tsarnaev is asking the full circuit to review his claim. In what’s called an en banc rehearing petition, he criticizes the panel for failing to address the substance of the judge’s statements or to apply relevant precedent from a prior circuit case in which recusal was ordered. “In extrajudicial public comments made during the pendency of Tsarnaev’s appeal, Judge O’Toole opined about the very matters that are the subject of the remand proceedings and had been a focus of pre-trial litigation — whether seated jurors gave dishonest answers during voir dire, whether they disobeyed his instructions to avoid prejudicial information on social media, whether they suffered from disqualifying bias, and whether Tsarnaev received a fair trial,” Tsarnaev wrote in his rehearing petition. While the latest petition may be a long shot, further dampening his prospects is the fact that any relief he wins at this stage would face a further appeal from the DOJ — to the Supreme Court that previously ruled against him. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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