A United States Supreme Court sharply divided along ideological lines heard oral argument October 13, 2021 on the Department of Justice’s appeal of a federal circuit court’s ruling overturning the death sentences imposed on Dzhokhar Tsarnaev for his convictions in the 2013 Boston Marathon bombing. Veteran court watchers reported that the six conservative justices seemed poised to overturn the federal appeal court’s grant of a new penalty phase hearing to Tsarnaev and to return the case to the U.S. Court of Appeals for the First Circuit to resolve the remaining challenges Tsarnaev has presented to his death sentences.

The appeals court had vacated Tsarnaev’s death sentences on two issues. First, it held that the trial court had improperly blocked defense lawyers from interviewing prospective jurors about the content of the extensive pretrial publicity to which they had been exposed. In addition, it determined that the trial court had unconstitutionally gutted Tsarnaev’s penalty-phase defense by excluding mitigating evidence the defense claimed was critical to demonstrating that Tsarnaev had acted under the domineering jihadist influence of his older brother, Tamerlan.

In a 1 hour, 35 minute argument that focused most intently on the second issue, Deputy Solicitor General Eric Feigin argued that the trial court properly excluded evidence that Tamerlan Tsarnaev had committed a robbery and triple murder—including killing one of his own friends—as an act of jihad in 2011. Feigin’s argument drew support from the Court’s conservative justices, five of whom suggested that the evidence was unreliable and would have confused and sidetracked the jury into, as Justice Samuel Alito phrased it, a “trial within a trial” as to who of two now dead individuals was responsible for the Waltham murders.

Tsarnaev’s counsel, Ginger Anders, argued that, far from a sideshow, the evidence of the Waltham, Massachusetts murders was “a central aspect of the penalty phase” that went to the core of the defense case for life. “This is the issue, as to whether Dzhokhar is going to get the death sentence or not,” she said. “It’s whether he was indoctrinated at Tamerlan’s instigation and whether Tamerlan was more likely to lead. That’s the only argument that the defense has.”

Anders noted that prosecutors are regularly permitted to present evidence of unrelated incidents as aggravating circumstances in capital cases. Here, Anders told the court, the successful exclusion of this evidence “distorted the penalty phase … by enabling the government to present a deeply misleading account of the key issues of influence and leadership. The government argued that Tamerlan was merely bossy … [and] did no more than send Dzhokhar a few extremist articles [, and] … that the brothers were equal partners because Tamerlan had not succeeded in jihad until Dzhokhar joined him.” The evidence related to the Waltham murders proved that was not true, she said.

Justice Elena Kagan came to Anders’ defense, noting the trial court considered other far less probative acts by Tamberlan to be relevant to Tsarnaev’s claim that he was dominated by his brother. Describing the trial court’s rulings, Kagan said: “This court let in evidence about Tamerlan poking somebody in the chest. This court let in evidence about Tamerlan shouting at people. This court let in evidence about Tamerlan assaulting a former student 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 argument on the trial court’s refusal to permit the defense to question jurors about the content of the pretrial publicity to which they were exposed turned into a highly technical discussion by the conservative justices on the extent of an appellate court’s authority to exercise its supervisory power over a trial court. In response to questions posed by Justice Clarence Thomas, Feigin said “the fundamental problem” with the appellate court’s rule requiring the district court to permit any particular type of questioning “is that it divests district courts of discretion that this Court has repeatedly insisted that they have.”

“This Court has not dictated specific forms of questioning, even in the most sensitive context of race,” Feigin argued. “I think it was inappropriate for the court of appeals here to have a rigid, wooden rule that dictates specific questioning,” he said.

Justice Sonia Sotomayor countered that a rule directing a trial judge to “ask [jurors] questions about the kind and degree of publicity” to which they had been exposed “wasn’t all that rigid.” Inquiring into the kind of publicity that may have influenced jurors “seems like a totally appropriate question to me,” she said.

Saying that, “The government has declared a moratorium on death sentences, but you are here defending his execution,” Justice Amy Barrett concluded the argument with a political question. “I’m wondering what the government’s end game is here?,” she asked Feigin.

“Well, Your Honor,” Feigin responded, “the administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict.” If the Court were to reinstate the death verdict against Tsarnaev, the case would still have to return to the circuit court to complete Tsarnaev’s appeal, then go through the habeas corpus process and clemency review before it reached the stage at which an execution could proceed. “Within that time, the Attorney General presumably can review the matters that are currently under review, such as the current execution protocol,” Feigin said.

While the Justice Department has temporarily paused executions, it has continued to decide on a case-by-case basis whether to seek the death penalty in pending cases and to defend death sentences on appeal. The White House has announced no formal policy on capital punishment but has reiterated that President Biden is personally opposed to the death penalty.

If the Court rules in favor of federal prosecutors in Tsarnaev’s case, the appeals court will have to face a sensitive issue its prior ruling enabled it to avoid: whether two of the jurors empaneled to serve on the case were actively biased against Tsarnaev. Tsarnaev’s defense lawyers had presented the circuit court with evidence of bias that included undisclosed social media posts by the jury forewoman prior to trial that referred to Tsarnaev as “that piece of garbage.”


Jess Bravin, Supreme Court Justices Differ on Boston Bomber’s Death Sentence, Wall Street Journal, October 13, 2021; Devin Dwyer, Justices divide sharply on rein­stat­ing Boston Marathon bomber death sen­tence, ABC News, October 13, 2021; John Fritze, Supreme Court’s con­ser­v­a­tives seem open to rein­stat­ing death penal­ty for Boston Marathon bomber, USA Today, October 13, 2021; Adam Liptak, Supreme Court Seems Ready to Restore Death Sentence for Boston Marathon Bomber, New York Times, October 13, 2021; Pete Williams, Supreme Court appears like­ly to allow death sen­tence for Boston Marathon bomber, NBC News, October 13, 2021; Mark Sherman, Justices seem set to revive marathon bomber’s death sen­tence, Associated Press, October 13, 2021; Greg Stohr, Justices Hint at Death Penalty Reinstatement for Marathon Bomber, Bloomberg News, October 13, 2021; Ariane de Vogue, Supreme Court con­ser­v­a­tives appear ready to endorse death sen­tence for Boston Marathon bomber Dzhokhar Tsarnaev, CNN, October 13, 2021; Amy Howe, Justices appear to favor rein­stat­ing death penal­ty for Boston Marathon bomber, SCOTUSblog, October 13, 2021; Baylor Spears, Supreme Court con­sid­ers exclud­ed evi­dence in Boston Marathon bomber case, UPI, October 13, 2021; Kelsey Reichman, Feds said men­tion of unsolved mur­ders would con­fuse marathon bomber’s jury; Could it also save his life?, Courthouse News Service, October 13, 2021; Nate Raymond, Boston Marathon bomb­ing vic­tims split on death penal­ty in Supreme Court case, Reuters, October 102021

Listen to the oral argu­ment and read the oral argu­ment tran­script in United States v. Tsarnaev.