WASHINGTON (CN) — In the midst of a moratorium on the death penalty for federal cases but little headway otherwise on President Joe Biden's campaign promise to end capital punishment in the United States, the Supreme Court on Wednesday will hear the Justice Department's appeal to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.
Tsarnaev was given the death penalty plus 20 life sentences after a jury convicted him on all counts in 2015 for carrying out the 2013 Boston Marathon bombing that left three people dead and more than 260 injured, 17 requiring amputations. A naturalized U.S. citizen who came to America with his family as refugees from Kyrgyzstan, Dzhokhar committed the bombing with his older brother, Tamerlan. The Tsarnaevs were on the run for days after the attacks, a manhunt that end with authorities apprehending an injured Dzhokhar from a boat parked on one family's lawn. Tamerlan had been killed, run over by a stolen SUV driven by Dzhokhar, after the brothers were nearly apprehended in an earlier confrontation, but not before they gunned down a fourth victim, a young man on the Massachusetts Institute of Technology police force.
The case before the court concerns only the legal process that sentenced Dzhokhar Tsarnaev to death.
“No matter what this Court decides, respondent will at a minimum spend the rest of his life in prison for the horrific crimes he committed,” Kannon Shanmugam wrote in a brief from retired federal judges and former federal prosecutors on Tsarnaev's behalf. “Instead, this case is about the process of empaneling the jury that recommended respondent’s death sentence, in a situation where pretrial publicity was 'unrivaled in American legal history.'"
The First Circuit overturned Tsarnaev’s death sentence in 2020, remanding the case for a new penalty trial, on the basis of evidence that the government had failed to properly vet jurors. The court also reversed three of Tsarnaev’s capital convictions for carrying a firearm during a crime of violence.
In its 2-1 decision, the appeals court said Dzhokhar's sentencing conflicted with precedent it decided in the 1968 case Patriarca v. United States, which involved the screening of jurors about pretrial publicity.
“The district court refused to ask prospective jurors a question routinely asked in high-profile cases: what they remembered hearing about the case,” Ginger Anders, the attorney representing Tsarnaev, said in a brief. “If there were ever a case in which jurors needed to be asked that question, it is this one.”
In the government's petition meanwhile, it dismisses Patriarca as a “half-century-old decision” and one that has no application here as the First Circuit found no evidence of juror bias.
“A criminal defendant is entitled to trial 'by an impartial jury,' the government’s 400-plus-page petition states. "But 'juror impartiality *** does not require ignorance.'” (Emphasis and asterisks in original.)
The Criminal Justice Legal Foundation filed an amicus brief in this case as well. Kent Scheidegger, the foundation's legal director, said the courts have a duty to take into account what kind of publicity is prejudicial.
“In deciding whether the defendant committed the crime or not, the particular horror of the crime is irrelevant,” Scheidegger said in a phone interview. “How horrible a crime is has nothing to do with who did it. So, that kind of publicity can be prejudicial on the issue of guilt, but on the issue of penalty, how horrible the crime is is central and proper to the correct decision. So evidence that is prejudicial for question of guilt is not prejudicial for requesting a penalty.”
In addition to the issue of juror bias, the First Circuit questioned the exclusion of an allegation that Tamerlan had been the perpetrator of an unsolved murder that occurred in Waltham, Massachusetts, on Sept. 11, 2011: three drug dealers were found with slit throats on the 10-year anniversary of the deadliest terrorist attack on U.S. soil. Shortly after the marathon bombing, as authorities interviewed associates of the suspects, Tamerlan's friend, Ibragim Todashev, said it was Tamerlan who slit the men's throats. As Todashev wrote out his confession to the murders, however, he attacked the agents, one of whom shot and killed him.
The government obtained its search warrant for Tamerlan’s car based on Todashev’s claims, but they did not present the evidence to the jury at Dzhokhar's trial on the basis that the confession was unreliable, that its exclusion would be harmless, and it was possible the issue would confuse the jury.
“Even if jurors found the Waltham evidence credible, Tamerlan’s alleged commission of independent crimes almost two years before the bombing had no reasonable prospect of altering the jury’s recommendation that respondent receive the death penalty for his own acts of terrorism,” the government’s brief states.
For Tsarnaev’s attorney, however, the Waltham murder evidence could have been used to show that Tamerlan radicalized his younger brother.
“Having successfully excluded this powerful corroboration of Tamerlan’s history of extremist violence, the government was free to belittle the defense’s mitigation theory,” Anders said in the brief. “Prosecutors told jurors that Tamerlan was merely “bossy,” that Dzhokhar radicalized on his own, and that Tamerlan was able to act on his extremist views only when Dzhokhar joined him.”
The government warns that retrying Tsarnaev's sentencing could be longer than the previous 21-day proceeding and submit the victims to again relive the trauma of that day.
At the time of the original trial, however, the parents of Martin Richard, an 8-year-old killed at the marathon, urged the government to take the death penalty off the table.
“We understand all too well the heinousness and brutality of the crimes committed,” Bill and Denise Richard said in a letter published in the Boston Globe. “We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives.”
Neither the Department of Justice nor the attorney representing Tsarnaev responded to requests for comment ahead of Wednesday’s arguments.
Martin Richard was the youngest of the marathon bombing victims. Lingzi Lu and Krystle Campbell died at the finish line, as well. The MIT officer who was killed was Sean Collier.
Follow @KelseyReichmann
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