OPINION ANALYSIS

In 6-3 ruling, court reinstates death penalty for Boston Marathon bomber

Nearly nine years after bombings near the finish line of the Boston Marathon killed three people and badly injured hundreds more, the Supreme Court on Friday reinstated the death sentence of Dzhokhar Tsarnaev, who was convicted for his role in the 2013 attacks. By a vote of 6-3, the justices reversed a 2020 ruling by the U.S. Court of Appeals for the 1st Circuit that threw out Tsarnaev’s death sentence. Justice Clarence Thomas, who wrote for the majority, put the matter in stark terms: “Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

The bombings were, as the court of appeals noted, “one of the worst domestic terrorist attacks since the 9/11 atrocities.” Tsarnaev and his brother, Tamerlan, detonated two homemade bombs, made from pressure cookers and filled with nails and ball bearings, in the middle of crowds gathered near the marathon’s finish line. Tamerlan was killed during the manhunt that followed, but not before the brothers shot and killed a campus police officer at the Massachusetts Institute of Technology.

A jury convicted Dzhokhar Tsarnaev on all counts and sentenced him to death. But the 1st Circuit threw out his death sentences. It ruled that the trial judge should have asked all potential jurors what media coverage they had seen or heard about Tsarnaev’s case. It also held that the judge, during the sentencing phase of the trial, should not have excluded evidence that Tamerlan was involved in a separate, unsolved triple murder in 2011. Especially when Dzhokhar Tsarnaev’s lawyers argued that he had been swayed by his brother to commit the crimes, the court of appeals said, the evidence of Tamerlan’s possible involvement in the 2011 triple murder was “highly probative of Tamerlan’s ability to influence his brother.”

Thomas explained that although defendants have a constitutional right to an impartial jury, with jurors who can return a verdict “according to the law and evidence,” that right does not require that jurors know nothing about the case. And trial judges have “broad discretion” in jury selection, Thomas emphasized, including decisions about what to ask potential jurors. There is no constitutional right to have a trial judge ask each prospective juror what she knows or has seen in the media about the case, Thomas continued, and in this case the judge was not clearly wrong when he declined to do so. This decision was confirmed, Thomas added, by the rest of the jury-selection process, which included (among other things) a 100-question form that asked jurors whether media coverage of the bombings had caused them to reach any conclusions about Tsarnaev’s guilt or innocence.

The court of appeals, Thomas noted, had relied on its power to supervise trial courts and created a procedural rule requiring trial judges to ask prospective jurors in high-profile cases what facts they had learned about the case from the media and other sources. Thomas acknowledged that the Supreme Court’s cases have described a “supervisory power” for federal courts. But, he cautioned, that power has limits. And when the Supreme Court has repeatedly held that trial courts have broad discretion to do exactly what the trial judge did in this case, Thomas concluded, the court of appeals cannot rely on a “supervisory power” to supplant that rule.

Thomas also rejected the 1st Circuit’s holding that Tsarnaev should have been allowed to introduce evidence that his brother was involved in the 2011 triple murder. The Federal Death Penalty Act, Thomas reasoned, allows trial courts to exclude information if its usefulness will be outweighed by the possibility that it will confuse or mislead the jury. In this case, the trial judge rejected Tsarnaev’s argument that providing the jury with information about the triple murder would support his argument that Tamerlan was the ringleader of the Boston Marathon bombings. The judge explained that there wasn’t enough evidence to determine whether Tamerlan actually participated or, if so, in what role. That ruling, Thomas wrote, was also not clearly wrong.

Justice Amy Coney Barrett joined the majority’s opinion, but she also penned a separate concurring opinion, which Justice Neil Gorsuch joined. She agreed that the court of appeals was wrong to rely on its supervisory power to require the trial judge to question jurors about their specific exposure to media coverage when doing so conflicts with the Supreme Court’s cases. But she went further and expressed “skepticism that the courts of appeals possess such supervisory power in the first place.” Although the Supreme Court has “suggested that the courts of appeals possess authority to dictate procedural rules for district courts,” she acknowledged, “it is unclear” that there is any source for such power, and she suggested that the justices should take up the question in the future.

Justice Stephen Breyer dissented, in an opinion joined (for the most part) by Justices Sonia Sotomayor and Elena Kagan. Breyer agreed with the 1st Circuit that the district court should have allowed Tsarnaev to introduce evidence about his brother’s role in the 2011 murders. In Breyer’s view, the evidence would have been useful: It would have shown that Tamerlan was involved in “a brutal triple murder” and that he committed the murders for ideological reasons, which would have supported Tsarnaev’s contention that his brother was “the violent, radicalizing force behind the ideologically motivated bombings a year and a half later.” The evidence was also sufficiently reliable, Breyer observed, for the federal government to conclude that there was probable cause to believe that Tamerlan had committed the murders, as reflected in a search warrant for evidence of the murders in Tamerlan’s car. And the evidence was “critically important” to Tsarnaev’s defense, when one of the main issues at sentencing was whether Tamerlan was more responsible for the bombings than his brother.

Breyer acknowledged, but pushed back against, the idea that evidence of the 2011 murders might confuse the jury. He emphasized that because of their high stakes, “death penalty proceedings are special,” and that the FDPA allows defendants to present evidence regarding “any matter relevant to the sentence” – creating a presumption in favor of admitting the evidence, Breyer contended. Moreover, Breyer added, because prosecutors are often allowed to introduce evidence regarding a defendant’s prior criminal behavior that might prove confusing to jurors, defendants should have the same opportunity.

In a two-sentence section of his dissent, Breyer noted that, in prior cases, he has raised concerns about systemic problems in the administration of capital punishment and has questioned its constitutionality. “This case provides just one more example of some of those problems,” Breyer wrote. Sotomayor and Kagan did not join this section of Breyer’s dissent.

This article was originally published at Howe on the Court.