WASHINGTON – The Supreme Court appeared on Wednesday to be set to reinstate the death penalty against Dzhokhar Tsarnaev, who was convicted of aiding in the Boston Marathon attacks in 2013.
Last year, a three-judge panel of the United States Court of Appeals for the First Circuit in Boston upheld Mr Tsarnaev’s convictions on 27 counts. But the appeals court ruled that his death sentence should be overturned because the trial judge failed to question jurors sufficiently about their exposure to the pre-trial publicity and excluded evidence relating to Tamerlan Tsarnaev, his elder brother and accomplice.
The shelling near the marathon finish line left three people dead and 260 injured, many seriously. Seventeen people lost limbs. Law enforcement officer killed as brothers fled a few days later. Tamerlan Tsarnaev died after a shootout with the police.
After the appeal court ruling, lawyers for the federal government under the Trump administration urged the Supreme Court to hear the case. The Biden administration continued the case, US vs. Tsarnaev, No. 20-443, although President Biden has said he will work to abolish federal executions and that the Justice Department under his administration imposed a moratorium on the execution of the federal death. sadness.
Judges spent little time discussing whether the questioning of potential jurors, which lasted 21 days, was adequate. But more liberal judges have expressed concern over the exclusion of evidence that Tamerlane Tsarnaev was involved in an unsolved triple murder in 2011 in Waltham, Massachusetts. They said the evidence could have strengthened defense lawyers’ argument that Tamerlane Tsarnaev had controlled and intimidated his younger brother.
“The whole point of the accused’s mitigation case was that he was dominated by, unduly influenced by, his older brother – and it would have gone exactly to this point,” Judge Elena Kagan said.
The argument did not appear to gain traction with more conservative members of the court, who appeared to view the evidence as equivocal and speculative. It came from a 2013 FBI interview with a friend of Tamerlan Tsarnaev named Ibragim Todashev.
Mr Todashev said he participated in the robbery of three drug traffickers in Waltham in 2011. But he added that Tamerlan Tsarnaev single-handedly slaughtered the victims. As Mr. Todashev began to write his confession, he suddenly attacked the officers, who shot and killed him.
Eric J. Feigin, a federal government lawyer, said Mr. Todashev’s statements were “unreliable hearsay accusations” by “a dead man with a strong motive to lie”.
Even though the trial judge erred in excluding the evidence, Feigin said, the error was harmless given the overwhelming evidence that Dzhokhar Tsarnaev was “a motivated terrorist who willfully mutilated and murdered innocent people, including one. eight-year-old boy, in pursuit of jihad.
Ginger D. Anders, an attorney for Mr. Tsarnaev, disagreed. “Waltham’s evidence would have changed the terms of the debate,” she said.
“The exclusion of evidence has distorted the sanction phase here by allowing the government to present a deeply misleading account of key issues of influence and leadership,” she said.
Judge Kagan said the judge allowed the jury to hear further evidence relating to Tamerlan Tsarnaev.
“This court let in evidence that Tamerlane punched someone in the chest,” she said. “This court left evidence of Tamerlane yelling at people. This court left evidence that Tamerlan assaulted a classmate, all because it showed what kind of person Tamerlan was and what kind of influence he could have over his brother.
“And yet,” Judge Kagan said, “did this court keep evidence that Tamerlan committed a crime which resulted in three murders?”
Judge Stephen G. Breyer seemed to agree that the evidence was important.
“It was their defense,” he said of Mr. Tsarnaev’s lawyers. “They had no other defense. They agreed he was guilty. Their only demand was, don’t give me the death penalty because my brother was the driving force.
But Judge Samuel A. Alito Jr. said he doubted the evidence had much value. “This evidence is inadmissible many times in a regular trial,” he said.
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Judge Amy Coney Barrett asked if the case before the judges was an empty exercise in light of Mr Biden’s opposition to the death penalty and the moratorium on federal executions imposed in July by Attorney General Merrick B Garland.
“I wonder what the government’s end of the game is here,” she told Feigin. “So the government has declared a moratorium on executions, but you are here to defend its death sentences. And if you win, that probably means he’s relegated to living under the threat of a death penalty that the government has no intention of carrying out. So I find it hard to follow the point.
Mr. Feigin responded that the moratorium was in place to give the government time to review its policies and procedures in capital punishment cases and that the jury’s decision on the sentence deserved respect.
Until July 2020, there had been no federal executions in 17 years. Over the next six months, the Trump administration executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.
Mr Tsarnaev’s guilt has not been contested, Judge O. Rogeriee Thompson wrote for the appeals court panel last year. But, she added, “a fundamental promise of our criminal justice system is that even the worst of us deserve to be tried fairly and legally punished.
“Just to be perfectly clear,” Judge Thompson wrote, “Dzhokhar will remain confined in prison for the rest of his life, the only question remaining being whether the government will end his life by executing him.”