The court found that at least two of the 12 jurors did not fully disclose what they knew about the high-profile case or discussed it on social media before they were chosen to decide Tsarnaev’s fate. Crucially, O’Toole Jr. erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially, the court held.
“A judge cannot delegate to potential jurors the work of judging their own impartiality,” the ruling stated.
The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others.
“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,” the court wrote.
But relatives of the victims in the attack were enraged by the decision.
“I just don’t understand it,” said Patricia Campbell, whose daughter Krystle was killed in the bombings near the finish line of the Boston Marathon. “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 was not 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 was killed in the bombings, declined to comment. He referred the Globe to an essay he and his wife, Denise, wrote shortly before Tsarnaev was sentenced to death, in which they called for his life to be spared.
“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 prosecutors are reviewing the ruling and would have more to say in the coming weeks. Two of Tsarnaev’s appellate lawyers couldn’t immediately be reached for comment.
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.
In the ruling, the court found that O’Toole Jr. had mishandled the process of voir dire, when jurors are asked questions to determine whether they are suitable, particularly in cases that have received intense media coverage.
“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,’” the court wrote.
Despite “a diligent effort,” O’Toole Jr. did not meet that standard, the court held.
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 Tamerlan’s alleged involvement in a 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,” the decision read. “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.”
The omitted evidence “might have tipped at least one juror’s decisional scale away from death,” he added.
Travis Andersen can be reached at firstname.lastname@example.org. Follow him on Twitter @TAGlobe. David Abel can be reached at email@example.com. Follow him on Twitter @davabel. Tonya Alanez can be reached at firstname.lastname@example.org or 617-929-1579. Follow her on Twitter @talanez. Milton J. Valencia can be reached at email@example.com. Follow him on Twitter @miltonvalencia.