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Justices Consider Whether to Reinstate Marathon Bomber’s Death Sentence

October 14, 2021 by Dan McCue
Spectators helping victims soon after the Boston Marathon Bombing in 2013. (Photo by Aaron Tang, Wikimedia Commons)

WASHINGTON — On April 15, 2013, two Chechen-American brothers planted a pair of homemade pressure cooker bombs near the finish line of the Boston Marathon.

At approximately 2:49 p.m. that Monday afternoon, the bombs detonated 14 seconds apart, killing three and injuring 264 others. At least 17 of the injured lost limbs, some of them instantly amputated in the blast.

Three days later, the FBI released security camera images of the suspects, later identified as Dzhokhar and Tamerlan Tsarnaev. Tamerlan died after a police shootout and being run over by his younger brother while Dzhokhar escaped from the scene in a stolen car.

A police officer was also killed during the shootout.

The younger Tsarnaev was arrested just days later after a Watertown, Massachusetts resident discovered him hiding in a boat in his backyard.

During questioning by police, Dzhokhar admitted to his role in the bombing, saying he and his brother were motivated by the wars in Iraq and Afghanistan.

At his trial, he amended his story, still admitting guilt in the bombing, but claiming his brother had been the mastermind behind it and intimidated him into going along with it. 

The only question was whether Dzhokhar Tsarnaev would die for his crime, as a jury had recommended. On Wednesday, eight years and several months after the fact, it was the U.S. Supreme Court’s turn to grapple with that question.

The case came to the High Court after a divided, three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston upheld Tsarnaev’s convictions on 27 counts, but struck down his death sentence.

The majority on the panel ruled his death sentence should be overturned because the trial judge had not questioned jurors closely enough about their exposure to pretrial publicity and had also excluded evidence related to Tsarnaev’s older brother.

The Trump administration immediately asked the Supreme Court to review the decision, and the Biden administration has continued to press it despite the fact the president has vowed to do away with federal executions.

On Wednesday, the justices first looked at the questioning of the potential jurors, a process that had taken 21 days at the start of the first trial.

Justice Sonya Sotomayor noted that the rule for questioning jurors has been simply stated in earlier cases that have come before the court. Namely, the rule is that you ask the jurors questions about the “kind and degree” of publicity that’s out there.

“Here,” Sotomayor said, “the Court permitted degree, it permitted people to tell how much they had read — a little, a lot or a moderate amount — but it didn’t permit questioning as to what kind of publicity” they’d been exposed to.

Sotomayor said this is important “because there was a whole lot of different publicity here.” 

“There was publicity on the day of the event. There was publicity the days after. There was publicity about what major politicians and others were suggesting the punishment should be.

There were interviews of victims,” she said. “There was a whole lot of different kinds of publicity. And the district court — and the government objected when counsel attempted to elicit that kind of information.

“That seems like extreme control over trying to figure out whether someone could have been influenced by that publicity,” Sotomayor said.

But Chief Justice John Roberts and Justice Samuel Alito pushed back, both drawing a distinction between a court precedent and a hard and fast rule.

“It is a prophylactic rule that is adopted by the court for the purpose of protecting a constitutional right, but it isn’t — there is no — there’s no — the proposition is not that this is required by the Constitution,” Alito said.

It was Justice Elana Kagan who turned to the evidentiary question in the case.

She and what remains of the liberal wing of the court appeared most concerned over the trial court’s decision to exclude evidence that Tamerlan Tsarnaev had been involved in an unsolved triple murder in 2011 in Waltham, Massachusetts. 

The evidence came from a 2013 F.B.I. interview with a friend of the brothers named Ibragim Todashev, who told investigators that he had participated in the robbery of three drug dealers in 2011 and that during the robbery Tamerlan Tsarnaev cut their throats.

Todashev started to write out his confession, but suddenly leaped up and attacked the agents questioning him. The agents shot and killed him.

In the view of the liberal justices, this evidence would have supported Dzhokhar Tsarnaev’s claim that he had been controlled and manipulated by his brother.

“The entire point of the defendant’s mitigation case was that he was dominated by, unduly influenced by, his older brother — and that would have gone to exactly that point,” Kagan said.

Eric Feigin, a lawyer for the federal government, conceded it could have but tried to offer alternatives to Kagan’s position. The justice would not relent.

“Your entire case rests on the notion that this evidence just wasn’t strong enough, that it … it didn’t establish that Tamerlan had played a leading role in the Waltham murders. … But how is that the job of a district court to evaluate, much less decide, that question?” the justice asked. 

“I would have thought that once the district court says this is obviously related to his sentencing defense, in other words, it goes to his own culpability, it essentially confirms … the mitigating factor that he was unduly influenced by his brother.

“At that point, it’s the job of the jury, isn’t it, to decide on the reliability of the evidence, to decide whether it’s strong evidence or weak evidence that Tamerlan, in fact, played a leading role in those other gruesome murders?”

Feigin said unfortunately, given how things played out, Todashev’s statements could only be considered “unreliable hearsay” delivered by “a dead man with a powerful motive to lie.”

Even if the trial judge had been mistaken in excluding the evidence, Feigin said. 

“Even if the court of appeals had identified a misstep in one of the hundreds of judgment calls that this complex trial required, any error here was harmless,” Feigin said later. 

“The experienced district judge empaneled an impartial jury which heard overwhelming evidence about respondent’s own actions and motivations and rendered a sound judgment against a motivated terrorist who willingly maimed and murdered innocents, including an 8-year-old boy, in furtherance of jihad,” he said.

Ginger Anders, a lawyer for Tsarnaev, disagreed. 

“The evidence’s exclusion distorted the penalty phase here by enabling the government to present a deeply misleading account of the key issues of influence and leadership,” Anders said.

“The government argued that Tamerlan was merely bossy. The Waltham evidence showed that wasn’t true,” she continued.

“The government argued that Tamerlan did no more than send Dzhokhar a few extremist articles. The Waltham evidence showed that wasn’t true.”

“The government argued that the brothers were equal partners because Tamerlan had not succeeded in jihad until Dzhokhar joined him. The Waltham evidence showed that wasn’t true either.

“But the defense couldn’t make any of those points. A sentencing proceeding where the defense is not permitted to make its fundamental mitigation argument and to rebut the government’s aggravation arguments cannot result in a reliable and constitutional death sentence,” Anders said.

Justice Stephen Breyer seemed inclined to agree with the defense attorney.

“This was their defense,” he said of Tsarnaev’s defense team at trial. 

“They had no other defense. They agreed he was guilty. Their only claim was, ‘don’t give me the death penalty because it’s my brother who was the moving force.’”

Breyer went on to note the government had used Todashev’s affidavit to show probable cause in the investigation of the earlier murders and search a car.

“Now, if the government thinks it stands up enough to show probable cause at least, isn’t it enough to get into a death case?” the justice asked. 

Justice Amy Coney Barrett asked about another factor now hanging over the court as it weighs its decision in the case — the president’s stated opposition to the death penalty and a moratorium put in place on all federal executions in July by the Justice Department.

“I’m wondering what the government’s end game is here,” she said to Feigin. “The government has declared a moratorium on executions, but you’re here defending his death sentences. And if you win, presumably, that means that he is relegated to living under the threat of a death sentence that the government doesn’t plan to carry out. So I’m just having trouble following the point.”

Feigin responded by saying the administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict.

“If the verdict were to be reinstated eventually, which will require some further proceedings on remand, there would then be a round of collateral review, some time for reviewing any clemency petitions,” he continued.

“Within that time, the attorney general presumably can review the matters that are currently under review, such as the current execution protocol,” he said.

“What we are asking here is that the sound judgment of 12 respondent’s peers that he warrants capital punishment for his personal acts in murdering and maiming scores of innocents, and along with his brother, hundreds of innocents at the finish line of the Boston Marathon should be respected,” Feigin said.

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue.

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