A U.S. federal appeals court on Tuesday appeared open to siding with convicted Boston Marathon bomber Dzhokhar Tsarnaev in his latest bid to reverse his death sentence for his role in the 2013 attack that killed three people and wounded 260 others.

Tsarnaev’s defense lawyer told the Boston-based 1st U.S. Circuit Court of Appeals that two jurors had lied about whether they discussed the case on social media before being seated for his 2015 trial, an argument the U.S. Supreme Court did not address when it reinstated Tsarnaev’s death sentence last year.

One juror participated in a Facebook discussion in which a friend urged him to “get on the jury” and send him “to jail where he will be taken care of” and another retweeted a Twitter post that called Tsarnaev a “piece of garbage.”

“It referred to a capital defendant whose life was in the juror’s hands in dehumanizing terms that would have made it easier to impose a death sentence,” said defense lawyer Daniel Habib.

Habib said the judge at Tsarnaev’s trial not only declined to strike the jurors but rebuffed a request to question them further, violating Tsarnaev’s constitutional right to a fair trial.

William Glaser, an attorney with the U.S. Department of Justice, countered that while the jurors inaccurately described their social media histories, the judge was within his discretion to not require further questioning.

But on Tuesday U.S. Circuit Judge O. Rogeriee Thompson said it was “hard to understand” how the facts did not raise a potential claim of juror misconduct, and U.S. Circuit Judge William Kayatta questioned why the judge did not probe further.

“Don’t we need to know why it was inaccurate before we know whether it was evidence of some bias or an innocent mistake?” he asked.

The Justice Department is defending Tsarnaev’s death sentence despite President Joe Biden’s opposition to capital punishment and a moratorium on federal executions issued by Attorney General Merrick Garland in July 2021.

Tsarnaev, now 29 years old, and his older brother detonated two homemade pressure-cooker bombs at the marathon’s finish line. The brother, Tamerlan Tsarnaev, died after a gunfight with police.

Jurors in 2015 found Tsarnaev guilty of all 30 counts he faced and later determined he deserved the death penalty.

The 1st Circuit overturned Tsarnaev’s death sentence in 2020 finding his lawyers were wrongly barred from presenting certain evidence and that prospective jurors were not questioned enough about their exposure to news reports about the bombings.

The U.S. Supreme Court reversed that decision in March. The case then returned to the 1st Circuit to address other grounds for appeal that neither court had yet to resolve. read more