Boston Marathon bomber returned to death row by Supreme Court

WASHINGTON (CN) — The Supreme Court reinstated a death sentence for Boston Marathon bomber Dzhokhar Tsarnaev in a 6-3 ruling on Friday morning.

The decision fell along ideological lines with Justice Clarence Thomas delivering the opinion for the majority joined by Roberts, Alito, Gorsuch, Kavanaugh and Barrett. Justice Stephen Breyer wrote a dissenting opinion joined by Kagan and Sotomayor. 

“Dzhokhar Tsarnaev committed heinous crimes,” Thomas wrote. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

A naturalized U.S. citizen who came to America with his family as refugees from Kyrgyzstan, Tsarnaev committed the 2013 Boston Marathon bombings with his older brother, Tamerlan, leaving three dead and more than 260 injured with 17 requiring amputations. While on the run for several days after the attack, the Tsarnaev brothers also shot and killed a university police officer. Tamerlan died — run over by Dzhokhar driving a stolen SUV — after a firefight with authorities in the chase. The younger Tsarnaev was convicted on all counts in 2015 and given the death penalty plus 20 life sentences. 

That death penalty were overturned in 2020, however, after the First Circuit saw problems with how the trial court had vetted the jurors. The panel additionally reversed three charges for carrying a firearm during a crime of violence and questioned the exclusion of evidence about a triple murder in Waltham, Massachusetts, possibly connected to Tamerlan.

The Supreme Court took up the case last year, holding arguments in October.

On the jurors’ pretrial consumption of media related to the bombings, Thomas said criminal defendants have the right to an impartial jury but that doesn’t mean they have to be ignorant. 

“Notorious crimes are ‘almost, as a matter of necessity, brought to the attention’ of those informed citizens who are ‘best fitted’ for jury duty,” Thomas wrote. “A trial court protects the defendant’s Sixth Amendment right by ensuring that jurors have ‘no bias or prejudice that would prevent them from returning a verdict according to the law and evidence.’” 

Thomas said the district court did not abuse its discretion by not asking jurors about their media consumption connected to the bombings because the questions would have been unfocused and risked producing unmanageable data. 

Tsarnaev attempted to present evidence about the Waltham murders in a bid to paint his brother as the mastermind behind the bombings, but Thomas noted that death-penalty trials are “not an evidentiary free-for-alls."

“Dzhokhar sought to divert the sentencing jury’s attention to a triple homicide that Tamerlan allegedly committed years prior, though there was no allegation that Dzhokhar had any role in that crime,” Thomas said. “Nor was there any way to confirm or verify the relevant facts, since all of the parties involved were dead.” 

Breyer disagreed with the majority here. He said introduction of the Waltham murder evidence should have been allowed. 

“Dzhokhar conceded his guilt,” Breyer wrote. “The only issue was whether he deserved to die.” 

Providing great detail into the Waltham murders, Breyer said the inclusion that evidence would have assisted in the claim that Tsarnaev would not have committed the bombing if not for the influence of his brother and may have swayed the jurors’ opinion on whether he should get the death penalty. 

“This evidence may have led some jurors to conclude that Tamerlan’s influence was so pervasive that Dzhokhar did not deserve to die for any of the actions he took in connection with the bombings, even those taken outside of Tamerlan’s presence,” Breyer wrote. “And it would have taken only one juror’s change of mind to have produced a sentence other than death, even if a severe one.” 

Breyer also used the case to address his opposition to capital punishment. Kagan did not join this part of the dissent. 

“I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty,” Breyer wrote. “This case provides just one more example of some of those problems.”

On Friday afternoon White House press secretary Jen Psaki said President Joe Biden has deep concerns over whether capital punishment is “consistent with values that are fundamental to our sense of justice and fairness” and that he supports the ongoing pause and review of the practice at the Department of Justice. Psaki said Biden believes Tsarnaev should be punished.

“He has made clear, as I noted, his grave concerns about capital punishment as implemented, but he respects the process and the ongoing review that is being led by the Department of Justice and the attorney general,” Psaki said. 

The Department of Justice declined to comment on the ruling.

Justice Amy Coney Barrett — joined by Justice Neil Gorsuch — wrote a concurring opinion to express skepticism over the authority of the appeals court to impose a procedural rule on a district court. She says that, while the high court has suggested appeals courts have this authority, that concept may need to be rethought.  

“Understandably, then, the First Circuit followed our lead,” the Trump appointee wrote. “But before we go further down this road, we should reexamine the map.” 

Barrett claims there is no source for this authority and it is not clear it exists. Noting that the Supreme Court’s authority to regulate procedures in lower federal courts is not justified either, Barrett said it at least has an arguable basis in the constitution’s establishment of the court as supreme. 

“Whatever the status of this Court’s supervisory authority, it is difficult, if not impossible, to find any comparable constitutional hook for such power in the courts of appeals,” Barrett wrote. “Nor does any statute grant them this general authority.” 

Despite this argument, Barrett said the case doesn’t ask the court to answer if appeals courts have this authority, however, the justices might want to examine the issue in the future. 

Breyer refuted this point, noting the court’s precedents. 

“A degree of authority for the courts of appeals, closer to the fray, to issue at least some supervisory rules facilitates the flexibility needed in our geographically dispersed multicircuit system,” Breyer said. 

Ginger Anders, an attorney with Munger, Tolles & Olson representing Tsarnaev, did not immediately respond to a request for comment on the ruling. 

Follow @KelseyReichmann

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