Supreme Court 'to reinstate Boston Marathon bomber's death penalty'

Supreme Court is ‘poised to REINSTATE Boston Marathon bomber’s death penalty’ over 2013 attack after hearing arguments

  • Justices heard 90 minutes of arguments from government lawyer and Dzhokhar Tsarnaev’s attorney
  • Tsarnaev’s death penalty was thrown out after appeals court ruled the trial judge improperly excluded mitigating evidence 
  • Six conservative justices seemed to favor reinstating the death penalty for Tsarnaev, 28, even though there is moratorium on federal executions
  • Justice Amy Coney Barrett asked what was the ‘government’s end game’ given its pursuit to end federal death penalty 
  • Three liberal justices appeared more favorable to Tsarnaev, which Elena Kagan suggesting that mitigating evidence should have been presented 
  • Supreme Court should make a decision on the case by June 2022 

The US Supreme Court sounded ready on Wednesday to reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev for his role in the 2013 attack that killed three people.

In more than 90 minutes of arguments, which were punctuated by a rare tense exchange between Justice Brett Kavanaugh and Elena Kagan, the court’s six conservative members seemed poised to embrace the Biden administration’s position that a federal appeals court mistakenly threw out Tsarnaev’s death sentence.

The 1st US Circuit Court of Appeals in Boston ruled last year that the trial judge improperly excluded evidence that could have shown Tsarnaev was deeply influenced by his older brother, Tamerlan, and was somehow less responsible for the carnage. 

The appeals court also faulted the judge for not sufficiently questioning jurors about their exposure to extensive news coverage of the bombing.

The high court’s three liberal justices appeared more favorable to Tsarnaev. If the appellate ruling were affirmed, Tsarnaev would have to face a new sentencing trial if the administration decided to continue pressing for a death sentence.

The Supreme Court sounded ready Wednesday to reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev, pictured above in 2013 

Tsarnaev was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction during the marathon on April 15, 2013 

Pictured: People are seen running in fear after the two explosions were set off near the finish line of the Boston Marathon on April 15, 2013 

Tsarnaev’ guilt in the deaths of Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford, Massachusetts; and 8-year-old Martin Richard, of Boston, is not at issue, only whether he should be sentenced to life in prison or to death.

Justice Amy Coney Barrett was the only member of the court to raise the administration’s pursuit of a capital sentence for Tsarnaev even as it has halted federal executions. President Joe Biden also has called for an end to the federal death penalty.

Barrett wondered about the ‘government’s end game,’ noting that if the administration wins the case, Tsarnaev would be ‘living under a death sentence the government doesn’t intend to carry out.’

No federal inmates were executed for 17 years before Donald Trump oversaw 13 executions in the last six months of his term. Biden’s attorney general, Merrick Garland, has since imposed a moratorium on federal executions. 

Three people, Krystle Campbell, 29 (left), Martin Richard, eight (middle), and Lingzi Lu, 23 (right), were killed by the two blasts

Justice Department lawyer Eric Feigin said the Biden administration believes the jury reached a ‘sound verdict and that the court of appeals was wrong to upset that verdict.’ 

The main focus was on evidence that implicated Tamerlan Tsarnaev in a triple killing in the Boston suburb of Waltham on the 10th anniversary of the September 11, 2001, terrorist attacks. 

The evidence bolstered the defense team theory that ‘Tamerlan influence Dzhokhar, Tamerlan indoctrinated Dzhokhar and Dzhokhar radicalized because of Tamerlan,’ lawyer Ginger Anders told the justices.

But the trial judge agreed with prosecutors that the evidence linking Tamerlan to the Waltham killings was unreliable, was irrelevant to Dzhokhar’s participation in the marathon attack and would only confuse jurors.

Justice Elena Kagan asked Feigin to ‘assume’ that the evidence against Tsarnaev was strong, and asked what the district court would have done then?

Kagan argued that jurors should have been able to decide whether the evidence was reliable. ‘That’s the role of the jury,’ Kagan said. 

During his trial lawyers for Tsarnaev (left) argued that his older brother Tamerlan Tsarnaev (right) was the mastermind behind the bombing. Tamerlan, 26, was killed in a shootout with police days after the attack 

But Justice Brett Kavanaugh appeared to take a swipe at Kagan’s argument, saying that the district court judge had good reason to keep the account of the Waltham killings from the jury because both Tamerlan Tsarnaev and Ibragim Todashev, who implicated him, were dead by the time of the trial, and the evidence against Tamerlan was weak.

‘We don’t know what happened. Todashev had all the motive in the world to point the finger at the dead guy,’ Kavanaugh said.

Kagan replied: ‘The premise was assumed away because that was the role of the jury.’ 

Conservative Justice Samuel Alito said if evidence of the Waltham murders were admitted, effectively a trial within a trial would be needed to determine what happened. Alito called the evidence ‘inadmissible many times over in a regular trial.’

Fellow conservative Justice Neil Gorsuch wondered what would happen if the evidence were admitted but then it is ‘impossible to determine who led the Waltham murders.’

Chief Justice John Roberts was the only one of the court’s conservatives who indicated he potentially could side with Tsarnaev on the Waltham murders issue. Roberts said it should be easier to admit evidence during a proceeding that would determine whether someone is sentenced to death than for other reasons. 

Tamerlan Tsarnaev, 26, had been in a gunfight with police and was run over by his brother as he fled, hours before police captured a bloodied and wounded Dzhokhar Tsarnaev in the Boston suburb of Watertown.

Todashev was interviewed by investigators after the marathon attack. He told authorities that Tamerlan recruited him to rob the three men, and they bound the men with duct tape before Tamerlan slashed their throats to avoid leaving any witnesses.

In a bizarre twist, while Todashev was being questioned in Florida, he was shot dead after authorities say he attacked the agents. The agent who killed Todashev was cleared of any criminal wrongdoing.

The Supreme Court’s six conservative justices seemed to favor reinstating the death penalty for Tsarnaev, while their three liberal colleagues appeared more favorable to the defendant 

Prosecutors deemed Todashev’s statement reliable enough to ask for and get a search warrant for Tamerlan´s car for blood, DNA and other evidence relevant to the triple murder.

If the statement sufficed for a search warrant, ‘isn’t it enough to get into a death case?’ Justice Stephen Breyer asked.

Feigin answered that different standards apply and that in asking for a search warrant, federal agents were not saying that every word of what Todashev said was true.

Feigin tried to point the court to Tsarnaev’s admission of responsibility for the bombing and his deadly actions captured by cameras near the marathon finish line, including placing a backpack with a shrapnel bomb behind a group of children.

When jurors weighed that evidence and sentenced Tsarnaev to death, ‘the appeals court should have let that verdict stand,’ Feigin said.

‘The jury’s nuanced verdict in this case was based on that evidence, not anything about pretrial publicity’ or other issues, Feigin said. 

If the death sentence is reinstated, he added, it would still be held up by other procedures while Garland’s moratorium review of executions takes its course. 

Tsarnaev, now 28, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the killing of Massachusetts Institute of Technology Police Officer Sean Collier during the Tsarnaev brothers´ getaway attempt. The appeals court upheld all but a few of his convictions.

After Wednesday’s arguments, the Supreme Court should make a decision by June 2022. 

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