WASHINGTON (CN) — The Supreme Court agreed Monday to consider reinstating Boston marathon bomber Dzhokhar Tsarnaev’s death sentence.
Four people were killed and more than 260 were injured, 17 with amputations, from the pressure-cooker bombs that Tsarnaev and his older brother, Tamerlan, left at the marathon finish line on April 15, 2013.
Though he was convicted of all counts in 2015, the First Circuit overturned the younger Tsarnaev’s sentence last year after finding that several jurors in the case were biased. Prosecutors have appealed the order to conduct a new sentencing trial.
To the government, the issue is not whether jurors were biased but whether the First Circuit relied improperly on the “half-century-old decision” in Patriarca v. United States, which involved the screening of jurors about pretrial publicity.
“In invalidating respondent’s capital sentences, the court of appeals did not conclude that any juror was biased by pretrial publicity or unable to render a decision based on trial evidence,” the petition for certiorari state. “Nor did the court identify particular contextual factors specific to the jury selection in this case that required the district court to do more to ensure the jury’s impartiality.”
Ginger Anders, an attorney for Tsarnaev with Munger, Tolles & Olson, wrote in a brief to the high court that, in the event of a remand, the First Circuit will probably vacate her client’s death sentences again — this time for juror misconduct.
Tsarnaev, a naturalized U.S. citizen who came to America with his family as refugees from Kyrgyzstan, was apprehended four days after the bombing. Hours before his capture, the 19-year-old ethnic Chechen inadvertently ran over and killed Tamerlan with the SUV they had stolen.
While none of the 30 counts against him related to his brother’s death, Tsarnaev was convicted on 15 counts related to the measures that he took in his attempt to escape capture, including his murder of Sean Collier, a 27-year-old police officer with the Massachusetts Institute of Technology.
The court also reversed three of Dzhokhar Tsarnaev’s convictions for carrying a firearm during a crime of violence.
The National Fraternal Order of Police — represented by William Jay with Goodwin Procter — supports the government in the appeal. Jay wrote in a brief that supplanting the trial court’s judgment will have grave consequences for victims of the attack’s family members, to say nothing of the procedural protections given to federal capital defendants.
“Once the district court empanels a new jury, respondent’s victims and their families will again face respondent and will again offer testimony describing how the bombings have transformed their lives,” Jay wrote. “The court of appeals would force respondent’s victims and their families to relive these horrific events from seven years ago.”
Nancy Gertner, a Harvard law school professor and retired federal judge in Massachusetts, noted in a statement Monday that the Supreme Court “almost always takes the case” when it is the federal government seeking review.
“Given that Mr. Tsarnaev will never leave prison, the government should consider whether continuing to pursue a death sentence for him is unnecessarily traumatizing for the victims’ families and the city of Boston,” Gertner said in a statement.
Though it was the Trump administration that brought the underlying petition, President Joe Biden’s Solicitor General Elizabeth Prelogar has taken over the case now.
Neither the Department of Justice nor Anders has responded to a request for comment Monday.