By Nate Raymond
BOSTON (Reuters) -A federal appeals court on Thursday directed the judge who presided over Boston Marathon bomber Dzhokhar Tsarnaev's 2015 trial to investigate whether two jurors were biased and should not have been seated, creating potential grounds to overturn his death sentence.
The Boston-based 1st U.S. Circuit Court of Appeals stopped short of granting Tsarnaev's latest bid to overturn his death sentence for his role in the 2013 attack that killed three people and wounded 260 others.
But on a 2-1 vote, the panel concluded that U.S. District Judge George O'Toole's earlier investigation into Tsarnaev's claims that two jurors lied about whether they had discussed the case on social media before being seated to hear his trial "fell short of what was constitutionally required."
The U.S. Supreme Court had not addressed that argument when it restored Tsarnaev's death sentence in 2022, after the 1st Circuit set it aside in an earlier ruling in 2020, prompting a new round of arguments before the appeals court.
Lawyers for Tsarnaev, 30, said one juror was told by a friend on Facebook (NASDAQ:META) to "get on the jury" and send Tsarnaev "to jail where he will be taken care of," while the second juror retweeted a Twitter post that called Tsarnaev a "piece of garbage."
U.S. Circuit Judge William Kayatta, writing for the majority, said that should the trial judge conclude that either juror should have been disqualified, Tsarnaev would be entitled to a new penalty-phase trial to determine if he should be sentenced to death.
"And even then, we once again emphasize that the only question in any such proceeding will be whether Tsarnaev will face execution; regardless of the outcome, he will spend the rest of his life in prison," Kayatta wrote.
A spokeswoman for acting U.S. Attorney Joshua Levy, whose office prosecuted the case, declined to comment. The U.S. Department of Justice could either ask the full 1st Circuit to reconsider the case or try to take it for a second time to the U.S. Supreme Court.
Lawyers for Tsarnaev did not respond to requests for comment. He is currently being held in a "Supermax" prison in Florence, Colorado.
Tsarnaev and his older brother, Tamerlan, detonated two homemade pressure-cooker bombs near the Boston Marathon's finish line on April 15, 2013. Tamerlan Tsarnaev died four days later after a shootout with police.
Jurors found Dzhokhar Tsarnaev guilty on all 30 counts he faced and said six warranted the death penalty, which was later imposed.
The Justice Department has defended Tsarnaev's death sentence despite President Joe Biden's opposition to capital punishment and Attorney General Merrick Garland's July 2021 moratorium on federal executions.
The 1st Circuit had overturned Tsarnaev's sentence in 2020, saying evidence about his brother's influence over him was wrongly excluded, and that prospective jurors were not questioned enough about their exposure to news about the bombings.
In reinstating Tsarnaev's death sentence, conservative Justice Clarence Thomas wrote for a 6-3 Supreme Court majority that the constitution "guaranteed him a fair trial before an impartial jury. He received one."
Kayatta's opinion on Thursday was joined by U.S. Circuit Judge O. Rogeriee Thompson, a fellow appointee of Democratic former President Barack Obama.
U.S. Circuit Judge Jeffrey Howard, an appointee of Republican former President George W. Bush, dissented, saying that given the relative weakness of Tsarnaev's juror bias claims, it was within the broad authority of O'Toole, the U.S. District Court judge, to not subject the jurors to further questioning.
Victims of the bombing have been split for years over whether Tsarnaev should be put to death, and Thursday's opinion re-exposed those divides.
"My stance is he should already be dead," said Marc Fucarile, who lost his right leg in the second blast. He said further court proceedings would be a waste of time and money.
Mikey Borgard, who sustained hearing loss and a brain injury in the attack, agreed with the ruling, saying further investigation was needed "to ensure that justice has been fairly rendered and the Constitution and law has been upheld."