Death penalty still option for convicted Boston Marathon bomber Dzhokhar Tsarnaev

BOSTON — Friday’s federal appeals court decision to vacate Dzhokhar Tsarnaev’s death sentence is a serious setback for federal prosecutors, but it may not be a permanent road block.

A panel of three federal judges on Friday threw out the convicted Boston Marathon Bomber’s death sentence on several grounds, among them, a ruling that the trial judge did not fully weed out anti-Tsarnaev bias on the jury.

Boston US Attorney Andrew Lelling has not signaled what his next step might be.

However, former federal prosecutor Brad Bailey tells me, he thinks the US Attorney might first go to the US Supreme court, rather than seek a new penalty phase trial.

“There’s a conservative majority there,” Bailey said. “I think they areaware of the issues that may be involved if they attempt to do the retrial here.”

Friday’s decision did not overturn Tsarnaev’s guilty verdict.

A new Tsarnaev trial, with new jurors, would only focus on whether Dzhokhar should get the death penalty.

And while re-trial could be rocky for federal prosecutors, Bailey tells me, Friday’s decision could actually give prosecutors a road map to what went wrong the first time.

And that could strengthen the Government’s expected attempt to keep a new trial in Boston.

“The U.S Attorney’s office may say, ‘Listen we’re not going to cart family members at their inconvenience elsewhere in the United States. We’re not going to have some of those 269 living victims inconvenienced and have to go elsewhere. This is where it should be, we can get it right,’ " Bailey said.

Another option: the Government could argue its case in front of the full 1st Circuit Court of Appeals.

However, three of those judges already ruled against them last week.