Supreme Court Overturns Appeals Court Decision Reversing Death Sentence in Boston Marathon Bombing

The U.S. Supreme Court has over­turned a fed­er­al appeals court deci­sion that had reversed the death sen­tences imposed on Dzhokhar Tsarnaev for his role in the 2013 Boston Marathon bomb­ings that killed three peo­ple and injured more than 250 others. 

In a 6 – 3 deci­sion authored by Justice Clarence Thomas and joined by all mem­bers of the Court’s con­ser­v­a­tive super­ma­jor­i­ty, the jus­tices rein­stat­ed Tsarnaev’s death sen­tences and remand­ed the case to the U.S. Court of Appeals for the First Circuit to decide the penal­ty-phase issues the court found it unnec­es­sary to address when it vacat­ed Tsarnaev’s death sen­tences in July 2020. Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, dissented.

A unan­i­mous pan­el of the cir­cuit court reversed Tsarnaev’s death sen­tences on July 31, 2020, find­ing that the tri­al court had failed to ade­quate­ly ques­tion jurors about their expo­sure to per­va­sive pre­tri­al pub­lic­i­ty about the case. Though District Court Judge George A. O’Toole, Jr. prop­er­ly inquired as to the sources of infor­ma­tion from which jurors had heard about Tsarnaev and the bomb­ing, the appeals court wrote, he failed to ques­tion nine of the twelve impan­eled jurors about the con­tent of what they had read and heard, includ­ing inac­cu­rate and inadmissible information.

Justice Thomas dis­agreed. Trial courts have ​“broad dis­cre­tion” over ques­tion­ing jurors, he wrote, and Judge O’Toole ​“did not abuse [the court’s] broad dis­cre­tion by declin­ing to ask about the con­tent and extent of each juror’s media con­sump­tion regard­ing the bomb­ings.” The appeals court, he wrote, lacked the author­i­ty to ​“sup­plant the dis­trict court’s broad dis­cre­tion to man­age voir dire by pre­scrib­ing spe­cif­ic lines of questioning.”

The appeals court also grant­ed Tsarnaev a new penal­ty-phase hear­ing because Judge O’Toole had uncon­sti­tu­tion­al­ly pre­vent­ed him from pre­sent­ing evi­dence sup­port­ing the mit­i­gat­ing cir­cum­stance that he had act­ed under the dom­i­na­tion of his vio­lent and rad­i­cal­ized old­er broth­er Tamerlan. Justice Thomas wrote that the dis­trict court had act­ed with­in its dis­cre­tion to exclude evi­dence that Tamerlan had pre­vi­ous­ly mur­dered three peo­ple in Waltham, Massachusetts in an act of jihad. Judge O’Toole’s rul­ing that the evi­dence was ​“with­out any pro­ba­tive val­ue” and ​“would be con­fus­ing to the jury” was rea­son­able, Thomas said, in light of the fact that all of the par­tic­i­pants in the Waltham mur­ders were dead and there was no ​“way to con­firm or ver­i­fy the relevant facts.” 

The appeal returned to the case to an ear­li­er stage of the appel­late process, like­ly adding years to its jour­ney through the courts. Retired Massachusetts fed­er­al dis­trict court judge Nancy Gertner explained to Boston Public Radio that Tsarnaev’s appeals would still be in the courts ​“for many, many, many years.” The case, she said, ​“is not remotely over.”

In dis­sent, Justice Breyer wrote that the Waltham evi­dence was more pro­ba­tive of Tamerlan’s vio­lent rad­i­cal­iza­tion than a host of oth­er evi­dence the tri­al court had per­mit­ted Dzhokhar Tsarnaev to present. Moreover, he wrote, the Government had used the very evi­dence the dis­trict court exclud­ed to ​“estab­lish prob­a­ble cause that Tamerlan com­mit­ted the Waltham mur­ders” and to obtain ​“a search war­rant for Tamerlan’s car to look for evi­dence of those mur­ders. … [T]he fact that both the Government and a fed­er­al judge found the evi­dence suf­fi­cient­ly reli­able to estab­lish prob­a­ble cause that Tamerlan com­mit­ted the mur­ders,” Breyer wrote, ​“strong­ly sug­gests that the District Court here abused its dis­cre­tion in con­clud­ing that the same evi­dence was so unre­li­able that Dzhokhar could not use it as mit­i­gat­ing evi­dence to estab­lish the same proposition.”

The Supreme Court’s deci­sion will force the appeals court to address claims it had pre­vi­ous­ly avoid­ed relat­ed to charges that two of the jurors failed to dis­close evi­dence sug­gest­ing that they were biased against Tsarnaev. That evi­dence showed that the fore­woman had tweet­ed or retweet­ed about the bomb­ing 22 times — includ­ing com­ment­ing on the psy­cho­log­i­cal impact of being at work while her fam­i­ly was ​“locked down” dur­ing the man­hunt for Tsarnaev — and then con­cealed that infor­ma­tion dur­ing jury selec­tion when asked about her social media activ­i­ty. A sec­ond juror had vio­lat­ed the court’s order to stay off social media and post­ed on Facebook that he was in the jury pool for the case. In response, one friend urged him to ​“play the part so u get on the jury then send him to jail where he will be tak­en care of,” and anoth­er wrote, ​“if you’re real­ly on jury duty, this guys [sic] got no shot in hell.” When the defense learned of those posts, Judge O’Toole refused to ques­tion the jurors about them and refused to remove them from the jury. 

The Community’s Response

Massachusetts has no death penal­ty and the Boston com­mu­ni­ty has been deeply divid­ed over the case. 

Tsarnaev was sen­tenced to death for plac­ing and set­ting off a bomb that killed two peo­ple — 8‑year-old Martin Richard and 23-year-old grad­u­ate stu­dent Lingzi Lu. In an open let­ter in the Boston Globe on April 16, 2015, Martin’s par­ents, Bill and Denise Richard, implored fed­er­al pros­e­cu­tors to drop the death penal­ty. ​“We sat in the court­room, day after day, bear­ing wit­ness to over­whelm­ing evi­dence that includ­ed graph­ic video and pho­tographs, repli­cat­ed bombs, and even the clothes our son wore his last day alive,” they wrote. ​“We know that the gov­ern­ment has its rea­sons for seek­ing the death penal­ty, but the con­tin­ued pur­suit of that pun­ish­ment could bring years of appeals and pro­long reliv­ing the most painful day of our lives. We hope our two remain­ing chil­dren do not have to grow up with the lin­ger­ing, painful reminder of what the defen­dant took from them, which years of appeals would undoubtedly bring.”

Justice Thomas’ opin­ion includ­ed a graph­ic descrip­tion of Martin’s death. The Richard fam­i­ly declined media requests for com­ment on the decision. 

Massachusetts U.S. Attorney Rachel Rollins, who ear­li­er had indi­cat­ed she would pur­sue a new death penal­ty tri­al for Tsarnaev if direct­ed to do so by Attorney General Merrick Garland, released a state­ment prais­ing ​“the resilien­cy of our city, the fam­i­lies of the vic­tims, and the hun­dreds of brave sur­vivors.” Noting that oth­er legal issues remain ​“that must be addressed by var­i­ous courts,” she said “[l]egal rul­ings don’t erase trau­ma and pain. Our focus today, and always, is on the hun­dreds of fam­i­lies that were deeply impact­ed and trau­ma­tized by this hor­rif­ic act of domestic terrorism.”

In a state­ment, Massachusetts Gov. Charlie Baker said, ​“While noth­ing can ever bring back those we lost on that ter­ri­ble day, I hope today’s deci­sion will bring some sense of jus­tice for vic­tims of the Boston Marathon bomb­ing and their families.” 

U.S. Representative Ayana Pressley, the author of one of the bills to abol­ish the fed­er­al death penal­ty, issued a state­ment rip­ping the Court’s deci­sion. ​“State-sanc­tioned mur­der is not jus­tice, no mat­ter how heinous the crime,” she said. ​“The Supreme Court’s deci­sion today to rein­state the death penal­ty in the Tsarnaev case is deeply dis­ap­point­ing, but unsur­pris­ing for this far-right major­i­ty Court that has shown time and again its con­tempt for the peo­ple.” Pressley renewed her call on President Biden ​“to take exec­u­tive action to halt fed­er­al exe­cu­tions, com­mute the sen­tences of those on death row, direct DOJ pros­e­cu­tors to no longer seek the death penal­ty, and dis­man­tle the death row facil­i­ty at Terre Haute.”

Much of the Boston Marathon route runs through Pressley’s con­gres­sion­al dis­trict. ​“I remain com­mit­ted to account­abil­i­ty and heal­ing for every­one impact­ed by the Boston Marathon bomb­ing,” she said. ​“I pray for those who are forced to re-live their trau­ma each time we are remind­ed of that devastating day.”

The Tsarnaev Case and Federal Death-Penalty Policy

The Court’s deci­sion renewed ques­tions con­cern­ing the Biden administration’s pol­i­cy on the fed­er­al death penal­ty. During the 2020 pres­i­den­tial cam­paign, then-can­di­date Biden pledged on his cam­paign web­site to ​“work to pass leg­is­la­tion to elim­i­nate the death penal­ty at the fed­er­al lev­el, and incen­tivize states to fol­low the fed­er­al government’s exam­ple.” Since tak­ing office, how­ev­er, the White House has not tak­en any action on bills to abol­ish the death penal­ty or requests that he pre­vent future fed­er­al exe­cu­tions by com­mut­ing the sen­tences of the pris­on­ers on fed­er­al death row. Instead, the White House has left it to the Justice Department to set death-penalty policy.

After the Tsarnaev deci­sion was announced, White House Press Secretary Jen Psaki told the media that Biden ​“knows the deep pain that [Tsarnaev’s] crime caused” and ​“believes that Tsarnaev should be pun­ished for respon­si­bil­i­ty in the mur­der of three inno­cent peo­ple at the marathon, for wound­ing dozens of oth­ers.” Without com­mit­ting the admin­is­tra­tion to any pol­i­cy posi­tion, Psaki added that Biden ​“has expressed before that he has deep con­cerns about whether cap­i­tal pun­ish­ment is con­sis­tent with the val­ues that are fun­da­men­tal to our sense of jus­tice and fairness.”

Attorney General Merrick Garland has pur­sued a pol­i­cy that, crit­ics say, is incon­sis­tent with Biden’s pro­fessed oppo­si­tion to the death penal­ty. In June 2021, Garland paused fed­er­al exe­cu­tions while DOJ reviews changes to fed­er­al death-penal­ty pol­i­cy that were adopt­ed dur­ing the Trump admin­is­tra­tion. However, he has giv­en no assur­ances that exe­cu­tions will remain on hold after the review is com­plete and the Department con­tin­ues to review cas­es on an indi­vid­ual basis to decide whether to seek the death penal­ty. In his mem­o­ran­dum announc­ing the review of the Trump poli­cies, Garland wrote that DOJ must ​“take care to scrupu­lous­ly main­tain our com­mit­ment to fair­ness and humane treat­ment in the admin­is­tra­tion of exist­ing fed­er­al laws gov­ern­ing capital sentences.”

The same day the Supreme Court rein­stat­ed the death penal­ty in Tsarnaev’s case, fed­er­al pros­e­cu­tors in North Dakota — which like Massachusetts does not have a state death penal­ty — filed notice that they intend to appeal a fed­er­al dis­trict court rul­ing that over­turned the death sen­tence imposed on Alfonso Rodriguez.