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.”