In a legal marathon running alongside the real Boston Marathon, the Supreme Court heard oral argument this week about whether to re-instate the on-again, off-again death sentence of Dzhokhar Tsarnaev, for his role in planting the deadly bombs near the 2013 Marathon finish line.
In 2015, a federal jury sentenced Tsarnaev to death. But in 2020, a federal appeals court threw out the sentence. The court upheld the jury’s finding of guilt but found that the death penalty phase was marred by two fatal errors.
The first was the failure of the trial judge to rigorously examine prospective jurors for exposure to pretrial publicity. The second was wrongly excluding relevant evidence that would have helped Tsarnaev show there were mitigating circumstances sufficient to spare his life.
To no one’s surprise, a majority of the Supreme Court seems poised to put Tsarnaev’s death sentence back in place. More surprising is the position of the Biden administration. Although the Justice Department has declared a moratorium on all federal executions and opposes capital punishment, it nonetheless argued to the Court that they should put Tsarnaev back on death row.
Justice Barrett cut to the chase by asking what the point was of re-instating Tsarnaev’s death sentence, since the government was committed to never executing him. Eric Feigin, Deputy Solicitor General, gave a boilerplate answer about feeling obligated to show respect for the jury verdict. He avoided saying what the Biden administration would do if the Supreme Court upheld the court of appeals order of a new death penalty trial. The Justice Department would then have to decide whether, against its stated position, it would argue for execution.
Of the two reasons the appeals court gave for tossing out Tsarnaev’s death sentence, the justices asked more questions about the mitigating circumstance issue. During the death penalty phase, a defendant has a constitutional right to present any evidence of mitigating circumstances. Tsarnaev had only one strong mitigating argument to make to the jury—that he was not the lead actor but just a weak younger brother.
To buttress that argument, Tsarnaev sought to introduce evidence that Tamerlan, the older brother, was involved in carrying out, as a prior act of jihad, an unsolved robbery and triple homicide in 2011 in Waltham, against three drug dealers. The trial judge refused to allow this evidence in, finding that the allegations that Tamerlan was responsible for the Waltham murders were merely speculative and that the jury would be confused by getting into a wholly separate event.
But, as Justice Kagan pointed out, it is the jury’s job, not the judge’s, to weigh the strength of evidence and to decide whether it is credible. Justice Kagan stressed that “the entire point of the defendant’s mitigation case was that he was . . . dominated by, unduly influenced by his older brother.” If the jury had heard that Tamerlan “was a guy who walks into places and murders three people,” they might have been more receptive to the younger brother’s portrait of his role.
Turning to the pretrial publicity issue, the questioning kept returning to the oldie but goodie trial of reputed Rhode Island Mafia boss, Raymond Patriarca. In that case, the U.S. Court of Appeals for the First Circuit instructed judges in future cases to conduct rigorous examination of jurors in any case with massive pretrial publicity. In the Patriarca trial, the judge asked only whether jurors could put aside what they had learned from the media. This was not enough to protect a defendant’s right to an impartial jury and henceforth, the appeals court directed judges to “to examine each prospective juror apart from other jurors and prospective jurors, with a view to eliciting the kind and degree of [media] exposure.”
Justice Sotomayor listed the avalanche of incendiary stories to which Tsarnaev’s potential jurors were exposed. She recounted the pronouncements from major politicians calling for the death penalty. It wasn’t asking too much, she said, for the judge to probe jurors for exactly what they learned and remembered from the media. But, as almost all the justices conceded, the trial judge did not conduct the required specific questioning.
If ever there was a case that required a judge to go the extra mile and probe for bias, the Boston Marathon trial was it. There was a perfect storm of prejudicial factors—an act of terrorism committed by immigrant Muslims against an iconic event done by planting bombs in ways that killed a child and two adults, and maimed hundreds of others.
And yet, if one can judge from the questioning, at least five justices (Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) are likely to excuse the judge’s failure to probe for bias as harmless error. There was a kind of “come off it, who are you kidding, the jury was going to sentence this guy to death anyway.” If you start with that attitude, then any legal error can be winked at.
It was disappointing that no justice brought up the most troubling example of failure to screen out biased jurors. It says a lot about the stacked deck at Tsarnaev’s trial that the judge even refused to dismiss one prospective juror who posted on social media following Tsarnaev’s capture, “Congratulation to all . . . who worked so hard . . .to bring in that piece of garbage.” This person made it onto the jury and served as foreperson.
When mistakes like this are made at trial, even this pro-death-penalty Supreme Court should see why we need to give Tsarnaev a new death sentence hearing. As hard as it is to let the Boston Marathon bomber profit from this commitment to the justice he did not give his victims, that is the difference between him and us.