Supreme Court signals willingness to reinstate marathon bomber death sentence

The Supreme Court on Wednesday appeared ready to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.

The court’s more conservative justices seemed receptive to the Justice Department’s argument that a lower court erred when it vacated the death sentence Tsarnaev received after being found guilty of perpetrating the 2013 attack.

“After watching video of respondent 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,” Eric Feigin, a Justice Department attorney, told the justices. “The Court of Appeals should have let that stand.”

Tsarnaev and his older brother carried out the attack by detonating homemade pressure cooker bombs placed near the finish line of the Boston Marathon, injuring some 260 people and killing three, including an 8-year-old child.

After a six-week trial in 2015, Tsarnaev was convicted of 30 charges, including the use of a weapon of mass destruction. The jury later handed him a death sentence, which Tsarnaev appealed.

The Boston-based U.S. Court of Appeals for the 1st Circuit last year agreed to overturn his death sentence, ruling that the trial judge had failed to adequately screen jurors for possible bias and improperly excluded evidence that Tsarnaev had been unduly influenced by his older brother.

Tsarnaev’s older brother and co-perpetrator of the marathon bombing, Tamerlan Tsarnaev, was killed during a 2013 manhunt.

The Supreme Court’s conservative justices appeared skeptical of the argument by Tsarnaev’s attorney that the trial judge committed a grave error by preventing the jury from hearing evidence that Tamerlan Tsarnaev wielded influence over him, including allegations that the elder Tsarnaev had been the ringleader in a 2011 triple murder.

Several justices suggested the trial judge was justified in doubting the reliability and relevance of disputed evidence purporting to show Tamerlan Tsarnaev instigated the 2011 crime. Tamerlan Tsarnaev had been implicated in the triple murder by alleged co-assailant Ibragim Todashev, who was killed in 2013 by law enforcement officers investigating the crime.

Chief Justice John Roberts said it would have “changed the terms of the debate” if the trial judge had admitted Todashev’s testimony during the younger Tsarnaev brother’s sentencing phase.

“It would focus debate on something that the district court determined really just couldn’t be resolved. There were no witnesses available, they were both dead,” Roberts said while questioning Tsarnaev’s attorney, Ginger Anders. “And he concluded that that would require — I don’t know if he used the term ‘mini trial’ but certainly a detour — into something that at the end of the day, there was no basis for resolving.”

The Tsarnaev case is seen as an early test for President Biden, who during the 2020 campaign publicly opposed the death penalty, making him the first U.S. president to have staked out that position. The Biden administration’s continuation of the appeal initiated by the Trump administration has caused deep disappointment among capital punishment opponents.

Attorney General Merrick Garland in July ordered a moratorium on federal executions while the department undertakes a policy review, though it is still advocating for the death sentence in some cases.

Outright repeal of the federal death penalty would require legislation, which is unlikely to make it through the current Congress given the deep partisan divide.

Tsarnaev, 28, will serve out multiple life sentences in federal prison if his death sentence is not reinstated.

A decision in the case, U.S. v. Tsarnaev, is expected by late June.

Updated at 1:44 p.m.