Supreme Court Hears Argument on Department of Justice Efforts to Reinstate Death Penalty in Boston Marathon Bombing Case

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.”