Supreme Court Ready to Return Boston Marathon Bomber to Death Row | Jeffrey Abramson | Verdict

In a legal marathon taking place alongside the real Boston Marathon, the Supreme Court this week heard argument on whether to restore the death sentence to Dzhokhar Tsarnaev, for his role in planting the deadly bombs near the 2013 Line finish of the marathon.

In 2015, a federal jury sentenced Tsarnaev to death. But in 2020, a federal appeals court overturned the sentence. The court upheld the jury’s guilty verdict but ruled that the death penalty phase had been marred by two fatal errors.

The first was the trial judge’s failure to rigorously examine prospective jurors for exposure to the pre-trial publicity. The second erroneously excluded relevant evidence that would have helped Tsarnaev show that there were extenuating circumstances sufficient to spare his life.

Unsurprisingly, a majority of the Supreme Court appears to be on the verge of reinstating Tsarnaev’s death penalty. More surprising is the position of the Biden administration. Although the Justice Ministry has declared a moratorium on all federal executions and opposes the death penalty, it nonetheless argued in court that they should put Tsarnaev back on death row.

Judge Barrett got right to the point by asking what was the point of reinstating Tsarnaev’s death penalty, since the government had pledged never to execute it. Eric Feigin, Deputy Solicitor General, gave a catch-all answer about feeling obligated to respect the jury’s verdict. He avoided saying what the Biden administration would do if the Supreme Court upheld the appeals court’s order for a retrial of the death penalty. The Justice Department would then have to decide whether, against its stated position, it would argue for execution.

Of the two reasons given by the appeals court for dismissing Tsarnaev’s death sentence, the judges asked more questions on the question of mitigating circumstances. During the phase of the death penalty, an accused has the constitutional right to present any evidence of extenuating circumstances. Tsarnaev had only one strong point to make before the jury: he was not the main actor but just a weak younger brother.

To support this argument, Tsarnaev sought to introduce evidence that Tamerlan, the older brother, was involved in the commission, as a prior act of jihad, of an unsolved robbery and triple homicide in 2011 in Waltham. , against three drug traffickers. The trial judge refused to admit this evidence, concluding that the allegations that Tamerlan was responsible for the Waltham murders were only speculative and that the jury would be confused by engaging in an entirely separate event.

But, as Justice Kagan pointed out, it is for the jury, not the judge, to assess the strength of the evidence and decide whether it is credible. Justice Kagan noted that “the whole point of the Respondent’s mitigating case was that he was[dominéparindûmentinfluencéparsonfrèreaînéSilejuryavaitentenduqueTamerlan«étaitungarsquisepromènedansdesendroitsetassassinetroispersonnes»ilsauraientpeut-êtreétéplusréceptifsauportraitdujeunefrèredesonrôle

En ce qui concerne la question de la publicité avant le procès, l’interrogatoire revenait sans cesse au procès à l’ancienne mais bon du célèbre patron de la mafia de Rhode Island, Raymond Patriarca. Dans ce cas, la Cour d’appel des États-Unis pour le premier circuit a demandé aux juges des affaires futures de procéder à un examen rigoureux des jurés dans tous les cas avec une publicité massive avant le procès. Dans le procès Patriarca, le juge a seulement demandé si les jurés pouvaient mettre de côté ce qu’ils avaient appris des médias. Cela ne suffisait pas à protéger le droit de l’accusé à un jury impartial et, désormais, la cour d’appel a ordonné aux juges « d’examiner chaque candidat juré indépendamment des autres jurés et des candidats jurés, en vue de déterminer le type et le degré de [media] exposure.”

Judge Sotomayor listed the avalanche of inflammatory stories to which Tsarnaev’s potential jurors were exposed. She recounted statements by leading politicians calling for the death penalty. It wasn’t too much to ask, she said, for the judge to probe the jurors to find out exactly what they learned and took away from the media. But, as almost all of the judges acknowledged, the trial judge did not conduct the specific examination required.

If ever there was a case that required a judge to go the extra mile and investigate bias, the Boston Marathon trial was this. There has been a perfect storm of damaging factors – an act of terrorism committed by Muslim immigrants against an iconic event committed by planting bombs in a way that killed a child and two adults, and maimed hundreds more.

And yet, if one can judge from the questioning, at least five judges (Alito, Thomas, Gorsuch, Kavanaugh and Barrett) are likely to excuse the judge’s failure to seek bias as a mistake. harmless. There was a sort of “how are you doing, who are you kidding, the jury was going to sentence this guy to death anyway.” If you start with this attitude, then any legal errors can be reported.

It was disappointing that no judge cited the most disturbing example of the failure to eliminate biased jurors. It says a lot about the stacked game during Tsarnaev’s trial as the judge even refused to fire a potential juror who posted on social media after Tsarnaev’s capture: “Congratulations everyone. . . who worked so hard. . . to bring this waste. This person was on the jury and served as foreman.

When mistakes like this are made at trial, even this pro-death penalty Supreme Court should see why we need to give Tsarnaev another death sentence hearing. As hard as it is to let the Boston Marathon bomber enjoy this commitment to justice that he failed to deliver to his victims, that’s the difference between him and us.

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