Members of the Supreme Court clashed Wednesday morning over the government’s bid to execute Boston Marathon bomber Dzhokhar Tsarnaev.
The justices heard arguments for 90 minutes over a federal appeals court decision that upheld Dzhokhar’s 2015 convictions but overturned the death sentence. The Biden administration is asking the High Court to reimpose the death penalty for Dzhokhar, even though Attorney General Merrick Garland has imposed a moratorium on federal executions.
Capital punishment has been a particularly divisive topic among the justices in recent years, and Wednesday’s case was no exception. The Court allowed the Trump administration to execute 13 federal inmates in 2020, sometimes over heated dissents from the liberal trio. And in a 2019 case, a five-justice majority warned courts to guard against delay tactics from death row inmates. Later this term, the Court will consider whether certain restrictions that Texas imposes on chaplains who accompany the condemned into the execution chamber are lawful.
Justice Amy Coney Barrett pressed government lawyer Eric Feigin to explain the government’s "end game" in Dzhokhar’s case, given that Garland has suspended federal executions. Feigin didn’t say that the Biden administration will put Dzhokhar to death. But he noted that the appeals process will take years, a tacit concession that some future attorney general could authorize Dzhokhar’s execution.
"The administration continues to believe the jury imposed a sound verdict and the court of appeals was wrong to upset that verdict," Feigin said.
Wednesday’s arguments were spirited throughout and at times heated. At one point, Justices Elena Kagan and Brett Kavanaugh broke with usual form and engaged with each other directly, rather than direct questions toward the lawyers on hand.
A three-judge panel of the First U.S. Circuit Court of Appeals set aside Dzhokhar’s death sentence for two reasons. First, they said the trial judge didn’t adequately screen jurors for bias. Second, they said the judge was wrong to exclude evidence that implicated Dzhokhar’s older brother and co-conspirator Tamerlan in an unsolved triple murder from 2011 in Waltham, Mass.
Wednesday’s proceedings mostly focused on the second issue. Following the marathon bombing, authorities came to suspect Tamerlan and an accomplice named Ibragim Todashev robbed and murdered three drug dealers in Waltham as an act of jihad. Dzhokhar’s lawyers have portrayed Tamerlan as a charismatic personality who had extraordinary influence in Dzhokhar’s life. The Waltham murders, they said, were a turning point that convinced Dzhokhar to follow his brother into jihadism.
"Tamerlan's commission of the murders supplied the key indoctrinating event by demonstrating to Dzhokhar that Tamerlan had irrevocably committed himself to violent jihad," said Ginger Anders, Dzhokhar’s lawyer. "That would have had a profound effect on Dzhokhar, who was already enthralled to his brother and therefore would have felt intense pressure to follow Tamerlan's chosen path."
Anders said the trial court was wrong to keep the Waltham evidence out because it cost Dzhokhar his right to a fair and individualized sentence.
"A sentencing proceeding where the defense is not permitted to make its fundamental mitigation argument and to rebut the government's aggravation arguments cannot result in a reliable and constitutional death sentence," Anders said.
A majority of the Court did not appear persuaded during Wednesday’s arguments. The trial court excluded the Waltham evidence because it concluded there wasn’t enough to tie Tamerlan to the crime, and a long digression could confuse the jury.
The Court’s conservative members credited that argument. They said trial judges can perform basic "gatekeeping" functions for the jury, ensuring all the information they receive for their deliberations is relevant and reliable. For example, Justice Samuel Alito said the trial judge was simply trying to head off "another trial within this trial about what happened at Waltham."
The Justice Department argued Wednesday that the trial court was right to exclude the Waltham evidence. But even if the court was mistaken, the error was not grave enough to vacate the death sentence, Feigin said.
"After watching video of [Dzhokhar] by himself personally placing a shrapnel bomb behind a group of children at the Boston Marathon, the jury in this case returned a nuanced verdict unanimously recommending capital punishment for that specific deliberate act," Feigin said. "The court of appeals should have let that verdict stand."
Dzhokhar is currently detained at the supermax prison in Florence, Colo. A decision in his case, No. 20-443 U.S. v. Tsarnaev, is expected by June 2022.