Legal analyst responds to Marathon bomber death penalty being overturned

Though Marathon bomber Dzhokar Tsarnaev will remain in prison the rest of his life, how he will die is now up in the air.

PROVIDENCE, R.I. (WLNE) –  Though Marathon bomber Dzhokar Tsarnaev will remain in prison the rest of his life, how he will die is now up in the air.

In a more than 200 page opinion released Friday, three judges from the First Circuit Court of Appeals threw out the death sentence in the case of the Marathon bomber.

“If you don’t receive a fair hearing, then you have to go through that phase again,” said ABC 6 Legal Analyst Ken Schreiber.

The First Circuit concluded that the judge in the case, George O’Toole, fell short in providing a jury selection process that wasn’t tainted – citing social media posts by at least two jurors that could be viewed as prejudiced towards the defendant.

“And I think when the judge didn’t react to that, that opened up a Pandora’s box here,” said Schreiber. “Essentially this panel decided that that was an egregious error on the judge’s part.”

The social media posts came from two jurors who had actually told the judge they hadn’t commented on the case in the past.

The opinion stated the judge should have asked more detailed questions about what jurors
had read and heard about the case to identify any possible bias, given that it was tried in Boston where the crime happened.

“Instead there was a very limited amount of questioning of these particular jurors when this came to fruition,” said Schreiber. “And that failure ultimately resulted in overturning the jury’s decision to execute the defendant.”

Schreiber tells ABC 6 the government can either accept the ruling, appeal to the Supreme Court, or appeal to the rest of the judges on the first circuit. He says it will likely play out over the next month.

“I fully expect the government absolutely to do whatever it takes to have Mr. Tsarnaev executed,” said Schreiber.

In a statement the U.S. Attorney’s office in Boston said they are reviewing the opinion and declining further comment at this time.

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