Justices to consider government’s appeal to reinstate death penalty for Boston Marathon bomber

Monday marked the 125th running of the Boston Marathon, moved from April to October this year because of the COVID-19 pandemic. On Wednesday, the Supreme Court will hear the United States’ effort to reinstate the death penalty for Dzhokhar Tsarnaev, who was convicted for his role in the 2013 bombings at the finish line of the marathon.

Both the bombings and the manhunt that followed garnered worldwide coverage (which is at the heart of one of the questions before the court on Wednesday). Dzhokhar and his brother, Tamerlan, placed backpacks containing homemade bombs in the crowds of spectators in the finish-line area and then detonated them. Three people were killed, and hundreds of others were grievously injured.

Dzhokhar Tsarnaev.

Three days after the bombings, the Tsarnaev brothers shot a police officer at the Massachusetts Institute of Technology in the head and stole a graduate student’s SUV. During the police pursuit that followed, Dzhokhar ran over his brother with the SUV, killing him. Dzhokhar Tsarnaev was eventually discovered hiding inside a boat a few blocks away.

At his 2015 trial, Tsarnaev’s lawyers acknowledged his involvement in the bombings but contended that he had been influenced by his brother to commit the crimes. The jury convicted Tsarnaev on all counts and sentenced him to death.

Tsarnaev appealed to the U.S. Court of Appeals for the 1st Circuit, which last year upheld his convictions and life sentences but threw out Tsarnaev’s death sentences. The court of appeals ruled against the government on two separate grounds. First, it held, the district court should have asked potential jurors what media coverage they had seen or heard about Tsarnaev’s case. Second, it concluded, the district court should not have excluded from the sentencing phase evidence that Tamerlan was involved in a separate, unsolved triple murder in Massachusetts in 2011. That evidence, the court of appeals reasoned, was “highly probative of Tamerlan’s ability to influence” his brother.

The Department of Justice went to the Supreme Court last October, asking the justices to review the 1st Circuit’s ruling. By the time the justices announced in March that they had granted review, the Trump administration had been succeeded by the administration of President Joe Biden, who had promised during his campaign to pass legislation to end the federal death penalty. But despite a July 1, 2021 order from Attorney General Merrick Garland that placed a moratorium on federal executions to allow the Department of Justice to review the policies and procedures surrounding executions, the Biden administration continued to pursue the appeal in Tsarnaev’s case.

Calling the case “one of the most important terrorism prosecutions in our Nation’s history,” the federal government urged the justices to “reverse the decision below and put this case back on track toward a just conclusion” – restoring Tsarnaev’s death sentences. First, the government emphasized, potential jurors can decide a case impartially even if they have already been exposed to publicity about the case. And in this case, the government stressed, the trial judge went to considerable efforts to screen out jurors who could not decide the case fairly: He cast a wide net for prospective jurors, gave them a lengthy questionnaire that included several questions about pretrial publicity, and then himself questioned them for 21 days, including about their exposure to coverage of the case. The 1st Circuit’s holding that the judge should have asked jurors specific questions about their exposure to news coverage of the case, the government contended, was both contrary to the Supreme Court’s precedents and “gave short shrift to the superior perspective and conscientious efforts of the district judge to address pretrial-publicity concerns through individualized interviews rather than inflexible scripts.” And the 1st Circuit reached that conclusion, the government added, despite identifying “little, if anything, likely to have specifically biased the jury” in favor of the death penalty.

The 1st Circuit’s decision to throw out Tsarnaev’s death sentences on the ground that he should have been allowed to introduce evidence about his brother’s involvement in the unsolved 2011 triple murders also improperly second-guesses the trial judge, the government continued. Given how far removed the crime – the robbery and murder of three drug dealers – was from the marathon bombings, it would have added little to Tsarnaev’s defense while potentially creating significant confusion. Indeed, the government suggested, that information would not have changed the jury’s conclusion that Tsarnaev was a willing participant in the bombings, rather than being influenced by his brother, particularly when jurors saw a video that showed Tsarnaev placing the “shrapnel bomb just behind a group of children,” as well as text messages void of any sign of remorse.

The government suggested that, if the 1st Circuit’s ruling stands, it will pursue a new penalty phase of Tsarnaev’s trial and attempt to seek the death penalty again with a new jury. That would involve an “unnecessarily onerous” jury selection process and would require victims “to return to court to ‘relive their disturbing experiences.’”

Tsarnaev conceded that the bombings were “a grievous and shocking act of terrorism,” but he countered that he should not be sentenced to death for them because the penalty phase of his trial was “compromised by two serious errors.” Addressing the issue of pretrial publicity, he contended that trial judges “routinely” ask potential jurors in “high-profile” cases to recount what, if anything, they have heard about the case. “If there were ever a case in which jurors needed to be asked what they remembered of the pretrial coverage,” Tsarnaev submitted, “it is this one.” Potential jurors, Tsarnaev told the court, were “bombarded with inflammatory, inadmissible material” that could have “deeply prejudiced” anyone who saw it. But the trial judge failed to do so, Tsarnaev observed, creating a scenario in which jurors could be selected “in near-total ignorance of whether they remembered, and were biased by, publicity that includes victims’ powerful — and inadmissible — calls for the death penalty.” And the courts of appeals, Tsarnaev argued, have “broad authority” to require trial courts to implement procedures for “sound judicial practice,” even if those procedures are not mandated by statute or the Constitution – exactly what the 1st Circuit did in this case.

Turning to the trial court’s exclusion of evidence regarding Tamerlan’s involvement in the 2011 triple murder, Tsarnaev wrote that it is “hard to overstate the importance” of that evidence “and the damage its exclusion did to” Tsarnaev’s case to be spared the death penalty because he was less culpable than his brother. Tsarnaev portrayed his older brother as the “principal authority figure” in his life. Evidence of the 2011 triple murder, which Tamerlan committed “as a form of violent jihad,” Tsarnaev asserted, “powerfully supported Dzhokhar’s contention that Tamerlan exercised powerful sway over him and played the leading role in the bombings.” And it is exactly the kind of evidence, Tsarnaev continued, that jurors must be allowed to consider to fulfill their constitutional obligation to provide an individualized sentencing determination.

Without that evidence, Tsarnaev argued, the government was able to portray him as “an equal and indispensable partner in the offense.” “And because the evidence was so central to the sentencing proceeding,” Tsarnaev concluded, the government cannot suggest that it wouldn’t have changed the outcome. Nor, Tsarnaev added, can the government justify the exclusion of the evidence on the ground that it is unreliable, when the government itself had previously contended in an application for a search warrant that there was probable cause to believe that Tamerlan had committed the murders.

A decision in the case is expected sometime next year.

This article was originally published at Howe on the Court.