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Thursday, February 29, 2024
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Feds said mention of unsolved murders would confuse marathon bomber’s jury. Could it also save his life?

The Biden administration's appeal to reinstate the death penalty for Dzhokhar Tsarnaev comes even as it strings progressive voters along on a promise to end capital punishment in the U.S.  

WASHINGTON (CN) — Several Supreme Court justices sparred with the government’s lawyer — and sometimes each other — on Wednesday as they considered whether to reinstate the death penalty on Boston Marathon bomber Dzhokhar Tsarnaev. 

The 2013 bombings committed by Tsarnaev and his older brother, Tamerlan, left three people dead at the finish lineand more than 260 injured, 17 requiring amputations. The younger Tsarnaev was convicted on all counts in 2015 and given the death penalty plus 20 life sentences. Tamerlan never made it to trial: run over and killed by Dzhokhar in a stolen SUV as authorities closed in on the fugitives. The weeklong chase also resulted in the death of a Massachusetts Institute of Technology police officer. 

Inciting an appeal by the Justice Department, however, the First Circuit overturned Tsarnaev’s death sentences in 2020 and reversed three of his convictions for carrying a firearm during a crime of violence. The court remanded the case for a new penalty trial, citing the government’s failure to properly vet jurors and the exclusion of evidence pertaining to an unsolved triple murder that occurred in Waltham, Massachusetts, on the 10th anniversary of 9/11.

Prosecutors said it would be confusing to tell jurors that, during the course of the bombing investigation, an associate of Tamerlan's picked out Tamerlan as the one who slit the throats of three drug dealers in 2011. Agents ended up killing the associate because he tried to attack them while writing out that confession.

For the defense, however, evidence about Tamerlan would have helped their case that he was pulling the strings of his impressionable younger brother. They say a jury's knowledge of the Waltham murders might have kept Dzhokhar Tsarnaev off death row.

“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,” said Ginger Anders, an attorney for the from Munger, Tolles & Olson representing the bomber. “The government argues that Tamerlan was merely bossy, the Waltham evidence showed that wasn't true.” 

Dzhokhar, now 28, was a naturalized U.S. citizen and undergraduate student at the University of Massachusetts at Dartmouth at the time of the bombing. In the early 2000s, he came with his family as refugees from Kyrgyzstan where their people, ethnic Chechens, faced persecution.

Justice Elena Kagan noted at Wednesday's hearing that the defense’s whole argument rested on Dzhokhar being unduly influenced by his older brother.

While Kagan acknowledged that the government chose not to include evidence from the Waltham murders because it was not strong enough, she said that was the jury’s job, not the government's, to decide. She also questioned the government’s choice to leave the Waltham murder evidence out while including other evidence about Tamerlan. 

“This court let in evidence about Tamerlan shouting at people; this court let in evidence about Tamerlan assaulting a fellow student — all because that showed what kind of person Tamerlan was and what kind of influence he might have had over his brother, and yet this court kept out evidence that Tamerlan led a crime that resulted in three murders,” the Obama appointee pressed. 

Justice Stephen Breyer continued on this line of questioning, noting that the government used the Waltham murder evidence to obtain a search warrant after the marathon bombing. 

“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,” Breyer asked. 

Justice Sonia Sotomayor had issues with the withheld evidence as well.

“This is a constitutional right to present mitigating evidence,” Sotomayor said. “It seems to me that I'm not sure how we would ever have an abuse solely on a district court's decision not to permit a defendant to put on a defense.” 


Meanwhile Justice Brett Kavanaugh seemed to lean into the government’s arguments, quoting from a brief that said the Waltham murder evidence was insufficient and that Ibragim Todashev, the friend of Tamerlan’s making the accusation, “had all the motive in the world to point the finger at the dead guy.” 

When Kavanaugh claimed the premise was assumed away, Kagan interjected. “The premise was assumed away because that’s the role of the jury,” Kagan said. 

A courtroom sketch shows Boston Marathon bomber Dzhokhar Tsarnaev, center, standing with his defense attorneys at the Moakley federal courthouse in the penalty phase of his trial in Boston on May 15, 2015. (Jane Flavell Collins via AP)

Justice Samuel Alito suggested that inclusion of the Waltham evidence would have forced the court to conduct “mini trials” for other cases. 

“If a person's on trial for murder X, you don't have a trial about murder Y and murder Z,” the Bush appointee said. 

Anders pushed back against the mini trial argument. “I don't think this could be an improper mini-trial here, it's the trial,” she said. 

The justices parsed the difference between the Federal Death Penalty Act — which allows defendants to present information relevant to a mitigating factor — and the Eighth Amendment. 

Kavanaugh questioned why another defendant committing a crime mattered in Tsarnaev’s case at all. 

“Explain the relevance there, where the defendant is saying that he committed, he the defendant, committed these murders and maimed these people, but my co-defendant is a worse person because he previously committed some other murders,” the Trump appointee said. 

Anders argued that Tsarnaev was radicalized by his older brother and that a previous “jihadist murder” was central to that theory. 

“If you’re a younger brother under your older brother’s sway, you won't feel any particular need to accede to persuasion if the form of persuasion takes is a few emails that say hey here's an article I thought you might be interested in,” Anders said. “The Waltham murders would have proven that that's not all that was going on between the brothers.” 

The government is arguing this case in the midst of a federal moratorium on the death penalty and a promise from President Joe Biden to end the practice.

Justice Amy Coney Barrett questioned why the government was pursuing the case in light of those circumstances. 

“I'm wondering what the government's end game is here,” the Trump appointee asked. “So 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.” 

Deputy U.S. Solicitor General Eric Feigin argued that the Court of Appeals usurped the District Court’s discretion by insisting evidence from the Waltham murders be heard by the jury. 

Before he could even finish his opening statement, the justices began questioning the government’s claims on the limits of the appeals court’s authority. Alito, Barrett and Justice Clarence Thomas all asked questions about the appeals court’s authority to implement the supervisory rule stemming from the 1968 case Patriarca v. United States concerning pretrial publicity.

Justice Sotomayor said she thought the lower court’s ruling to ask more from the jurors was reasonable in a highly public case like this. She listed the many different types of publicity jurors may have been exposed to before the trial and then pivoted to question Feigin on what specifically the appeals court actually wanted asked to the jurors.   

“The one question they wanted to ask: what stands out in your mind about all that publicity? It seems to me that that's not asking for details of everything you've read, but what has influenced you or affected you enough for you to remember it,” Sotomayor said. “That seems like a totally appropriate question to me.” 

The Department of Justice declined to comment following the hearing, and Tsarnaev’s attorney did not respond to requests for comments. 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Criminal, Trials

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