After watching video of [Tsarnaev] by himself personally placing a shrapnel bomb behind a group of children at the Boston Marathon, the jury in this case returned a nuanced verdict unanimously recommending capital punishment for that specific deliberate act. The court of appeals should have let that verdict stand. Instead, it unearthed a previously unmentioned supervisory rule to invalidate a careful and lengthy jury selection process that a prior panel had praised.

The defense responded that “the district court violated the First Circuit’s longstanding voir dire supervisory rule by refusing to learn whether jurors had been exposed to inadmissible and inflammatory publicity that could prejudice their consideration of the death penalty,” thus leading to unreliable and unreasoned “moral judgment to the offense and the defendant’s culpability.”