Boston Marathon bomber Dzhokhar Tsarnaev's lawyers want judge to recuse himself from case

BOSTON — Attorneys for Boston Marathon bomber Dzhokhar Tsarnaev say the federal judge overseeing the case should recuse himself for largely the same reason they’re challenging two jurors in the death penalty appeals case.

While the request was spoken of at a hearing in the case earlier this year, the killer’s lawyers now detail in a newly unsealed motion how they believe the judge in the landmark case has been too outspoken.

“Over the past eight years, during the pendency of Mr. Tsarnaev’s appeal, Your Honor has made multiple public statements about this case. These statements have come in various settings … and have concerned matters with direct relevance to the remand proceedings, including the adequacy of the jury selection process, the seated jurors’ compliance with this Court’s instructions, their ultimate fitness to serve, and the fundamental fairness of this capital prosecution,” appellate attorneys for Tsarnaev wrote in a September motion to U.S. District Court Judge George A. O’Toole Jr., which the judge unsealed on Friday.

“Among other remarks, Your Honor has praised the seated jurors’ ‘remarkable’ ‘public-spiritedness,’ assured audiences that Mr. Tsarnaev received a ‘fully fair’ trial, and said that Your Honor has no ‘lingering questions or doubts’ about the ‘trial outcome’ ― a death sentence,” the motion continued.

Tsarnaev was convicted in 2015 of all 30 charges against him and remains locked up in the Colorado supermax prison ADX Florence. Those charges include conspiracy, the use of a weapon of mass destruction and the killing of MIT Police Officer Sean Collier as he fled with his brother Tamerlan Tsarnaev following the April 15, 2013, bombing that killed three people — including an 8-year-old boy — and injured hundreds. Tamerlan Tsarnaev died during a gunbattle with police after the bombing.

Tsarnaev’s attorneys appealed and the 1st Circuit Court of Appeals overturned his death sentence and ordered a new penalty trial to decide his penalty on the grounds that the judge failed to question jurors enough about their exposure to the copious news coverage of the act of terror.

The U.S. Supreme Court in March 2022 reversed the findings of the Circuit court and reimposed the death penalty.

The current appeal targets two specific jurors — identified as jurors 138 and 286 — who appellate attorneys argue demonstrated heavy bias in social media postings about Tsarnaev in contradiction to their answers to pretrial questioning.

In the motion for Judge O’Toole to remove himself from the case, attorneys argue that his public statements go against the Code of Conduct for U.S. Judges, “which generally bars ‘public comment on the merits of a matter pending or impending in any court.’”

The motion argues that should O’Toole decline to recuse himself, he should still disclose “the dates, circumstances, and substance of any other public comments that Your Honor has made about this case, as well as any ex parte communications with the jurors … so that Mr. Tsarnaev is assured a constitutionally adequate opportunity to litigate this issue.”

The motion lists a series of known comments O’Toole has made on the case. These include:

April 6, 2016

O’Toole participated in a Boston College Law School panel discussion in which he not only expressed that “the public-spiritedness of these jurors was remarkable throughout, both the ones who were selected and the ones who were not” but also warned of the dangers of social media to influence jurors.

Attorneys say that very concern is why they had asked to strike juror 138, who they say was told by a Facebook friend to “Play the part so u get on the jury then send him to jail where he will be taken care of,” despite saying that he had not been exposed to comments on the case on Facebook. Likewise, they write, juror 286 claimed she had not participated in Twitter discussions on the case but had actually retweeted a post that called Tsarnaev a “piece of garbage.”

The motion states that despite O’Toole saying he would not talk about the merits of this case, he had expressed full faith in the jurors, despite this being what the appeal rested on.

Nov. 17, 2016

O’Toole participated in a seminar called “An Inside Look at Jury Trials” sponsored by the Administrative Office of the United States Courts in which he, attorneys wrote, once again expressed full faith in the jurors and mentioned the “Tsarnaev Marathon bomber case” specifically.

May 12, 2023

O’Toole participated in an episode of the “Criminal” podcast called “Did We Get it Right?” just a few months after the 1st Circuit heard oral arguments regarding the juror misconduct claims in which, attorneys wrote, he once again expressed full faith in jurors: “[M]ostly, they take their work very seriously. And when we say that this is really important that you [confine] yourself only to what you’ve heard here in the courtroom and not on any private investigation you’ve done, any comments that other people have made, tell your family members you just can’t talk about it. And they do. They follow through on it.”