The question in Wednesday's case was not Dzhokhar Tsarnaev's guilt, but whether he was properly sentenced to death. Although Massachusetts has abolished the death penalty, Tsarnaev was convicted on 30 federal charges and sentenced to death for six of those crimes. But a federal appeals court in Boston subsequently overturned the death sentences.
The justices focused on the trial judge's refusal to allow evidence that the defense said would show that Dzhokhar, 19 at the time of the bombing, was under the influence of his brother Tamerlan, seven years older. Specifically, the judge would not allow the jury to hear evidence allegedly showing that Tamerlan two years before the bombing slit the throats of three men in Waltham, Mass., in an act of jihad on the anniversary of the 9/11 attack.
Justice Elena Kagan questioned the omission of that evidence at the penalty phase of the trial, when the defense is supposed to be allowed leeway in showing why the defendant is less culpable, and not deserving of the death penalty.
"At that point, it's the job of the jury, isn't it, to decide on the reliability of the evidence?" she asked.
Justice Stephen Breyer seemed to agree.
"They had no other defense. They agreed he was guilty," he said. "Their only claim was, 'Don't give me the death penalty because it's my brother who was the moving force.' "
But several of the court's conservatives chimed in to note that all the participants in the Waltham killings are now dead — Tamerlan and the friend who identified him as the killer are dead: Tamerlan after a shootout with police after the Boston bombing; the friend a month later after he attacked FBI agents.
"The theory that Tamerlan was the lead player is entirely unreliable," Justice Brett Kavanaugh said.
Chief Justice John Roberts added: "There were no witnesses available. They were both dead."
But lawyer Gingers Anders, representing Dzhokhar, maintained that there was corroboration of Tamerlan's role in the three murders — evidence that included an FBI affidavit, a search of Tamerlan's computer and more. Without that evidence before the jury, she said, the prosecution was able to portray the older brother as merely bossy. The defense, she said, was not allowed to show the jury that Dzhokhar was strongly influenced and led by his violent older brother.
"The government could not have made those arguments. If it had, the defense would have said, 'Tamerlan is not just bossy, he's violent. He's already committed violent jihad. Dzhokhar knows about it,' " she said. "There's no question that that would have a profound effect."
Indeed, as Justice Kagan observed, even without that evidence, "this jury actually produced a very nuanced verdict. It was only the acts in which the older brother was not on the scene in which death was appropriate."
Addressing Deputy Solicitor General Eric Feigin, Kagan asked, what do you suppose the jury might have thought if they knew that the older brother had murdered three people?
Feignin replied that the jury saw video evidence of what the younger brother did.
"What those exhibits show is the respondent physically separating himself from his brother near the finish line of the Boston Marathon, positioning himself behind a group of children, putting down his backpack, contemplating for about three minutes, taking out his phone and calling his brother, after which the first bomb goes off," he said. "He barely gets off screen before, 20 seconds later, the second bomb explodes, killing and maiming people."
Justice Amy Coney Barrett then interjected a note of reality.
"Mr. Feigin, I'm wondering what the government's end game is here," she asked.
As she noted, the Biden administration has imposed a temporary moratorium on federal executions, but the administration is still defending the Tsarnaev death sentence.
"If you win, presumably that means he is relegated to living under the threat of a death sentence that the government doesn't plan to carry out," she said. "So I'm just having trouble following the point."
Feigin did the best he could, explaining that the attorney general is reviewing the Trump administration's execution protocols, and in the meantime asking the Supreme Court to uphold the jury's verdict.
A decision from the Supreme Court is expected by summer.
Source: bpr.org, Nina Totenberg, October 14, 2021
Supreme Court appears likely to side with the Biden administration and restore the death penalty for Boston Marathon bomber
A lower court dismissed Tsarnaev’s death sentence last year.
The Biden administration has asked the Supreme Court to reverse that decision.
In one of the most high-profile cases this term, the Supreme Court on Wednesday seems likely to side with the Biden administration and reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.
The case comes after President Donald Trump’s Justice Department, which restarted federal executions after a 17-year pause, urged the Supreme Court to reverse a lower court decision that threw out Tsarnaev’s death sentence last year.
The Biden administration has asked the Supreme Court to do the same, writing in a brief that Tsarnaev is the “most notorious domestic terrorist in recent American history.”
This comes despite President Joe Biden’s campaign pledge to end capital punishment and pressure from some Democrats and civil rights organizations to abolish the practice.
Attorney General Merrick Garland has also imposed a moratorium on federal executions, which Supreme Court Justice Amy Coney Barrett brought up on Wednesday, questioning the reasoning behind the DOJ’s request.
“The administration continues to believe the jury imposed a sound verdict and the court of appeals was wrong to upset that verdict,” Eric Feigin, the Department of Justice’s deputy solicitor general, responded.
“What we are asking here is that the sound judgment … 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,” he added.
The court appeared divided along ideological lines, as the three liberals strongly scrutinized the government’s position, whereas the six conservatives did not.
The case dates back to 2013, when Tsarnaev and his older brother, Tamerlan, carried out the infamous bombings that killed three people and injured hundreds. Tamerlan died in a shootout with the police days afterward.
Two years later, a jury convicted Tsarnaev and sentenced him to death. But in July 2020, the 1st US Circuit Court of Appeals dismissed his death sentence, ruling that the district judge who presided over his case in 2015 failed to properly screen the jurors’ media exposure of the high-profile attack before the trial, leaving room for potential bias against Tsarnaev.
The appeals court also ruled that the district judge improperly left out evidence of Tamerlan’s previous crimes that could have affected the jury’s decision. Tamerlan was allegedly involved in three murders two years before the Boston Marathon bombings.
Tsarnaev’s lawyer on Wednesday said the district judge violated the Eighth Amendment by leaving out that evidence, which may have resulted in a lighter sentence, such as life in prison, for Tsarnaev.
“This is powerful mitigating evidence that showed that Dzhokhar was indoctrinated at the instigation of his brother,” attorney Ginger Anders told the Supreme Court.
Democratic-appointed Justice Elena Kagan appeared to embrace that position, saying the district judge refused “to admit evidence of a gruesome murderous crime.”
Kagan asked the DOJ’s lawyer: “Isn’t this a classic case in which the evidence understood one way is highly relevant” to a jury’s decision?
“This investigation had hit the end of the road,” Feigin replied, adding “there was no way to figure out what happened” regarding Tamerlan’s previous alleged crime.
The court’s GOP-appointed justices seemed to add to that point. Justice Samuel Alito said that “evidence is inadmissible many times over in a regular trial.” Justice Brett Kavanaugh said the district judge has “a gatekeeping role” on evidence.
The justices will hand down their ruling on the case, United States v. Tsarnaev, by the end of June. If the justices reinstate Tsarnaev’s death sentence, it’s still unclear whether he will be executed, given Biden’s public opposition to the death penalty.
Tsarnaev, 28, is being held in federal prison in Florence, Colorado.
Source: Business Insider, Shawn Utley, October 14, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde