In United States v. Tsarnaev, No. 16-6001 (1st Cir. Mar. 22, 2024), a 2-1 First Circuit panel remands the penalty phase of Dzhokhar Tsarnaev’s prosecution in order for the district court to revisit whether two jurors might have been biased, based on their social media posts that they failed to disclose in voir dire.
‘In 2013, Dzhokhar Tsarnaev and his brother detonated two homemade bombs near the finish line of the Boston Marathon, killing three people and injuring hundreds more . . . . In 2015, a jury sitting in federal district court in Boston convicted Tsarnaev of thirty crimes stemming from the bombings and recommended a death sentence on several of the death-eligible counts. It did so in two different phases: a guilt phase, in which the jury concluded that Tsarnaev was guilty; and a penalty phase, in which the jury concluded that his sentence should be death. The district court imposed the death sentence, along with multiple life sentences on the remaining counts.”
The First Circuit initially reversed the death penalty based on, among other things, a supposedly insufficient inquiry into the jurors’ sources of news information about the case. United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020). But the U.S. Supreme Court in United States v. Tsarnaev, 595 U.S. 302 (2022), held that the First Circuit abused its supervisory authority by requiring that the district court ask every prospective juror what they learned from the media.
On remand, in this opinion, the First Circuit considers and rejects multiple grounds for reversal of the sentence. But the panel majority returns the case to the district court for one issue: whether, given the record of two jurors who arguably concealed their social-media use in response to voir dire, the district court should undertake a further investigation into juror bias.
“After the district court provisionally qualified Jurors 138 and 286, but before the parties exercised their peremptory strikes, Tsarnaev’s counsel discovered postings on those jurors’ social media pages regarding the bombings and the district court proceedings. Tsarnaev’s counsel moved to strike the jurors for cause. In the alternative, his counsel asked that the district court permit further questioning of the jurors in light of the discovery of their social media postings. The district court denied these requests.”
Juror 138 posted on his Facebook page during the jury selection process. Among other things, he wrote (all verbatim):
“JUROR 138: There’s 1200 or so of us…250 a day mon-fri this week go in full out survey 100’s of ques and then we call back to see when we go back and they select 18 of us out of the 1200 but single people out one by one over the next month they are telling me the process will take until the 23rd or 24th…then the whole trial it self is going to be 3-4 months they say
“JUROR 138: Shud be crazy he was legit like ten feet infront of me today with his 5 or 6 team of lawyers…can’t say much else about it tho…that’s against the rules
“FRIEND 7: Whoa!!
“FRIEND 3: Since when does [Juror 138] care about rules?
“FRIEND 8: Play the part so u get on the jury then send him to jail where he will be taken care of
“JUROR 138: When the Feds are involved id rather not take my chances…them locals tho…pishhh ain’t no thaang.”
One of Juror 138’s friends also commented that “If you’re really on jury duty, this guys got no shot in hell.”
Juror 286, meanwhile, tweeted and retweeted in real time during the Boston Marathon bombing and the aftermath, often lauding public safety personnel and survivors while using #BostonStrong and similar booster tags. At one point, she retweeted a comment referring to the defendant as a “piece of garbage.”
In voir dire, neither juror disclosed their posts; they were discovered by defense counsel only after those jurors were provisionally approved. When defense counsel thereafter discovered the posts, they moved to have the jurors excluded for cause or, alternatively, reexamined for possible bias. The judge denied the motions, holding that they were untimely and speculative, concluding on the face of the social-media posts that there was no evidence of misconduct.
The panel majority holds that by denying these motions, the district court “did not adequately explore Tsarnaev’s claims of juror bias.”
It rejects the timeliness objection, observing that the issues were brought “to the court’s attention in time for the court to investigate and take any necessary corrective action before empaneling the jury.” Supplemental questioning would have been practicable because the provisionally approved jurors were available at the courthouse. Finally, the district court held defense counsel to an impracticable standard. “In these circumstances involving over one thousand potential jurors of whom hundreds were selected for voir dire in a death penalty case, we do not think it reasonable to require defense counsel to thoroughly investigate each prospective juror’s social media prior to voir dire where, as here, the juror’s questionnaire responses indicate that the juror has not commented about this case online.”
The panel majority also holds that the defense made a colorable or plausible claims of actual bias.
The drift of Juror 138’s Facebook thread is that he’d made up his mind and was angling to get on the jury. “Taken at face value, these comments certainly can be read as suggesting that people who knew Juror 138 viewed him as biased.” While recognizing that Facebook threads can be jocular and exaggerated, the panel majority finds it suggestive that the juror did not disclose the post when asked in voir dire. “[W]e cannot know the reason for the discrepancy [in Juror 138’s response] because no one asked Juror 138 for an explanation. And it is plausible — given Juror 138’s engagement with his friends’ Facebook comments . . . — that the juror’s answer to the court’s question was knowingly dishonest. If that were so, Juror 138’s dishonesty would be a powerful indication of bias.”
While Juror 286’s tweets and retweets were arguably less provocative, “[a]gain, the critical issue here is not the posts themselves but instead the reason for their nondisclosure. If Juror 286 intentionally answered the question dishonestly, thinking that discovery of her posts referring to Tsarnaev as a ‘piece of garbage’ and repeatedly invoking the ‘Boston Strong’ spirit could disqualify her from serving as a juror, then that would be a powerful indicator of bias.”
Finally, there was no substitute in these circumstances for interviewing the jurors in the face of evidence of possible dishonesty. “We therefore hold that the district court exceeded the scope of its discretion by deciding not to pose any further questions to Juror 138 after being confronted before the jury was empaneled with a plausible claim of juror misconduct. In the circumstances presented here, more needed to be known before concluding that Juror 138 could determine Tsarnaev’s fate.” Likewise with Juror 286, “more investigation was required and [she] was readily available in the courthouse. We therefore hold that the district court exceeded the reach of its discretion by not taking a few minutes to ask Juror 286 why she answered as she did when asked whether she had commented on the case online.”
Nevertheless, the panel majority rejects the defendant’s suggestion to find bias as a matter of law based on the record before the court of appeals, because a remand would result in a futile, belated investigation. “No doubt any juror would have strong incentives to avoid admitting having committed perjury during voir dire. We also expect that most jurors, having taken time out of their daily lives to receive evidence at trial, deliberate with other jurors, and reach a verdict that they believe is just, would prefer not to have that verdict disturbed — especially as a result of their own actions. These same concerns are present in any post-trial proceeding in which the honesty of jurors’ voir dire answers is called into question . . . . In this case, we have no doubt that the able district court judge can do what judges regularly do — form a considered opinion about the sufficiency of the jurors’ explanations once those explanations are given and explored.”
Dissenting from this part of the decision, Judge Howard would hold that the district court did not abuse its discretion in how it addressed claims of juror misconduct and concludes that the panel majority sets an unjustifiably exacting standard for weighing charges of juror bias.
“. . . I worry that, as a practical matter, the majority’s holding establishes an inflexible procedural requirement in cases involving voir dire of prospective jurors from large jury pools. The holding seemingly calls for a district court to conduct further questioning of a juror whenever a plausible claim of juror misconduct surfaces prior to the empanelment of the jury. This requirement takes away from the district court any discretion in determining how to investigate and address such claims.”
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