A federal court on Thursday denied a request by attorneys for Boston Marathon bomber Dzhokhar Tsarnaev to remove the judge overseeing the protracted legal battle over his death sentence.
The U.S. First Circuit Court of Appeals rejected the argument made by Tsarnaev’s lawyers that U.S. District Court Judge George O’Toole should be recused from the case because, the lawyers contend, he is not impartial. During an August 2024 hearing, Tsarnaev’s attorneys pointed to what they said were comments O’Toole made about the case on podcasts and at public events during the appeals process.
In a two-page judgment released Thursday, appeals court judges ruled that O’Toole should continue to preside over the case, determining that “two panel discussions and a podcast in which Judge O’Toole discussed various aspects of organizing complex jury trials and the problems associated with social media in that context” did not constitute grounds for his removal.
One of O’Toole’s attorneys, David E. Patton, didn’t immediately respond to a phone message seeking comment.
A federal appeals court in March 2024 ordered O’Toole to investigate claims of juror bias by the defense and to determine whether Tsarnaev’s death sentence should stand. He was convicted of helping carry out the 2013 bombing that killed three people and injured hundreds of others near the marathon’s finish line.
It’s unclear when O’Toole might rule on the juror bias issue. If he finds that 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 given to 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 the extensive news coverage of the bombing.
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 the seating of two jurors who they claim lied during questioning.
Tsarnaev’s guilt in the deaths of those killed in the bombing was not at issue in the appeal. His lawyers have argued that Tsarnaev fell under the influence of his older brother, Tamerlan Tsarnaev, who was killed in a gun battle with police days after the bombing.
Dzhokhar Tsarnaev was convicted of all 30 charges against him. Prosecutors portrayed the brothers — ethnic Chechens who moved to the United States from Russia more than a decade ago — as full partners in a brutal and coldblooded plan to punish the U.S. for its wars in Muslim countries.
