BOSTON – Attorneys for Boston Marathon bomber Dzhokhar Tsarnaev are seeking to remove the judge overseeing the protracted legal battle over Tsarnaev's death sentence.
Tsarnaev's lawyers said during a hearing in federal court in Boston on Wednesday that U.S. District Court Judge George O’Toole should be recused from the case, pointing to what they said were comments O'Toole made about the case on podcasts and at public events during the appeals process.
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Prosecutors said they are not opposed to a hearing on the issue, but they said they believe the motion is meritless.
O'Toole scheduled a hearing on the recusal request for next month. Tsarnaev was not in court.
“I want to dispose of that issue immediately, one way or another,” O’Toole said.
During the hearing, O'Toole also said all future filings connected to the case are to be done under seal to protect the integrity of the process.
O’Toole said he wanted to protect the privacy of two jurors as he tried to determine if they were biased during the 2015 trial. He ordered prosecutors and defense attorneys not to contact the jurors during the review. Both teams agreed to the condition.
“They are citizens, and they deserve to be respected,” O’Toole said.
A victim of the bombing, Mikey Borgard, attended Wednesday’s hearing.
Borgard said he was walking home from work on the day of the marathon when the bombs exploded. He suffered hearing loss and from post-traumatic stress disorder.
“I was 21 when the marathon happened. I’m 33 now. This has been a very, very long process and I really kind of wish it was over,” said Borgard, who wears hearing aides. Despite his injuries, Borgard said he opposes capital punishment.
“I very strongly oppose the death penalty, and that’s across the board. It does not matter who you are, I think the death penalty is inhumane,” he said. “That is essentially an eye for an eye, and that is very old way of looking at things."
A federal appeals court in March ordered O'Toole to investigate the defense’s claims of juror bias and to determine whether Tsarnaev's death sentence should stand following his conviction for his role in the bombing that killed three people and injured hundreds near the marathon’s finish line in 2013.
If O'Toole finds jurors should have been disqualified, he should vacate Tsarnaev’s sentence and hold a new penalty-phase trial to determine if Tsarnaev should be sentenced to death, the appeals court said.
In 2022, the U.S. Supreme Court reinstated the death sentence imposed on Tsarnaev after the 1st Circuit threw out the sentence in 2020. The circuit court found then that the trial judge did not sufficiently question jurors about their exposure to extensive news coverage of the bombing. The Supreme Court justices voted 6-3 in 2022 when they ruled that the 1st Circuit’s decision was wrong.
The 1st Circuit took another look at the case after Tsarnaev’s lawyers urged it to examine issues the Supreme Court didn’t consider. Among them was whether the trial judge wrongly forced the trial to be held in Boston and wrongly denied defense challenges to seating two jurors they say lied during questioning.
Tsarnaev’s guilt in the deaths of those killed in the bombing was not at issue in the appeal. Defense lawyers have argued that Tsarnaev had fallen under the influence of his older brother, Tamerlan, who died in a gun battle with police a few days after the April 15, 2013, bombing.
Tsarnaev was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the killing of Massachusetts Institute of Technology Police Officer Sean Collier during the Tsarnaev brothers’ getaway attempt.