Washington — The Supreme Court on Wednesday weighed a bid by the Biden administration to reinstate the death sentences of Boston Marathon bomber Dzhokhar Tsarnaev, which were tossed out by a lower court last year.
Arguments in the case spanned roughly 90 minutes and came days after participants crossed the finish line at the 125th running of the marathon, held Monday.
The Justice Department under President Biden is asking the high court to restore Tsarnaev’s capital sentences. Eric Feigin, deputy solicitor general, characterized the now-28-year-old as a “motivated terrorist who willingly maimed and murdered innocents, including an 8-year-old boy, in furtherance of jihad.”
The conservative members of the court seemed sympathetic to the Biden administration’s argument that the death sentences should be restored.
But looming over the proceedings Wednesday was Mr. Biden’s opposition to the death penalty and the Justice Department’s moratorium on federal executions, which was reinstated in July after the Trump administration carried out 13 executions in a six-month span.
“I’m wondering what the government’s end game is here,” Justice Amy Coney Barrett asked Feigin. “The government has declared a moratorium on executions, but you’re here defending his death sentences. And if you win, presumably that means that [Tsarnaev] is relegated to living under the threat of a death sentence that the government doesn’t plan to carry out. So I’m just having trouble following the point.”
Feigin told Barrett the Biden administration believes the jury imposed a “sound verdict” in Tsarnaev’s case, and the lower court was wrong to toss out his capital sentences.
“What we are asking here is that the sound judgment of 12 of [Tsarnaev’s] peers that he warrants capital punishment for his personal acts in murdering and maiming scores of innocents, and along with his brother, hundreds of innocents at the finish line of the Boston Marathon should be respected,” he said.
Tsarnaev’s role in the 2013 bombing is not disputed, as his attorneys acknowledge he and his older brother, Tamerlan Tsarnaev, detonated the two homemade devices near the finish line of the Boston Marathon. Instead, they have argued Tamerlan Tsarnaev was the mastermind behind the attack, and the younger Tsarnaev acted under his brother’s influence.
The two brothers attempted to flee the state in the wake of the bombing, sparking a four-day manhunt that put Boston and the surrounding areas in lockdown. Tsarnaev was ultimately arrested by police after he was found hiding out in a boat behind a house in Watertown, Massachusetts, but Tamerlan Tsarnaev died in a shootout with police as they pursued the pair.
Tsarnaev was convicted on 30 counts in 2015, including three counts of using a weapon of mass destruction resulting in death. The jury recommended, and the district court imposed, the death penalty on six of 17 capital counts.
While the 1st U.S. Circuit Court of Appeals upheld nearly all of Tsarnaev’s convictions, with the exception of three, it invalidated the capital sentences and ordered a new sentencing proceeding. The lower court ruled the district judge who oversaw Tsarnaev’s trial abused his discretion by rejecting requests to ask prospective jurors specific questions about pretrial media coverage they may have seen or read about Tsarnaev’s case.
The lower court also found the district court erred during the penalty phase of the trial by excluding evidence that Tamerlan Tsarnaev was allegedly involved in a triple murder two years before the Boston Marathon bombing — on the 10th anniversary of the September 11, 2001, terror attacks — which would have strengthened the central theory from Tsarnaev’s lawyers that he acted under his older brothers’ influence.
The evidence excluded during the sentencing portion of the trial was the focus for much of the arguments, with Justice Elena Kagan peppering Feigin with questions about other evidence regarding Tamerlan Tsarnaev’s conduct that was introduced during the trial, including that he shouted at people and assaulted a student.
“It’s different that Tamerlan yelled in a mosque, and it’s different that Tamerlan assaulted a fellow student, and it’s different that Tamerlan yelled at people, but all of this was admitted to show what kind of person Tamerlan was and what kind of influence he had over his brother,” Kagan said. “And yet, the court, again, you know, refuses to admit evidence of a gruesome murderous crime in which, according to the evidence that was kept out, Tamerlan had extraordinary influence over a co-felon in getting him to murder three people.”
Feigin said allowing evidence about Tamerlan Tsarnaev’s alleged role in the 2011 murders would have “sidetracked the proceedings and consumed a disproportionate amount of it focusing on Tamerlan,” rather than his younger brother.
Requiring a new penalty phase in the case, he warned, would also inflict further harm on the victims, who would have to testify again about their experiences.
Justice Samuel Alito expressed concerns that allowing evidence about the earlier triple murders would have opened the door to a “mini-trial” during Tsarnaev’s own trial that focused on the alleged crimes of his older brother, who is no longer alive.
“At a trial, you don’t have these mini-trials,” he said. “If a person’s on trial for murder X, you don’t have a trial about murder Y and murder Z.”
But Ginger Anders, who argued on behalf of Tsarnaev, said evidence about the earlier crimes would have “changed the terms of the debate,” as the government downplayed the influence Tamerlan Tsarnaev had on his younger brother during the penalty phase.
“The government could not have made those arguments,” she said. “If it had, the defense would have said, ‘Tamerlan is not just bossy, he’s violent. He’s already committed violent jihad. Dzhokhar knows about it.’ There’s no question that that would have a profound effect.”
Still, Chief Justice John Roberts said while information about the triple murders involving Tamerlan Tsarnaev may have changed the terms of the debate, it also would have focused it on issues the district court determined couldn’t be resolved.
“There were no witnesses available. They were both dead,” he said. “And he concluded that that would require, I don’t know if he used the term or not, but a mini-trial, certainly a detour into something that, at the end of the day, there was no basis for resolving.”
The Trump administration asked the Supreme Court to take up its appeal of the 1st Circuit’s decision, arguing a new sentencing proceeding would impose significant burdens on the victims of the 2013 bombing. The Justice Department under Mr. Biden did not change positions in the case, despite the president’s opposition to the death penalty, and the high court said in March it would hear the Justice Department’s appeal.
A decision from the Supreme Court is expected by summer 2022.
