SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber

The Supreme Court today heard argument in one of the most prominent death penalty cases of the last few decades, that of Dzhokar Tsarnaev, the Boston Marathon bomber.  News reports from the Washington Post and CNN  —  neither outlet being friendly to capital punishment  —  suggest that the Court will reverse the First Circuit and re-instate Tsarnaev’s thoroughly earned death sentence.

The Post notes:

The Supreme Court on Wednesday seemed prepared to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, despite aggressive questioning from the court’s liberals about whether crucial evidence was kept from jurors who decided not to spare his life.

The court was reviewing a decision by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit. In July, the panel agreed with Tsarnaev’s lawyers that the judge overseeing his 2015 trial did not adequately question potential jurors for bias in the case, which received massive publicity.

In overturning Tsarnaev’s death sentence, the panel also said some evidence was improperly withheld that might have indicated his older brother, Tamerlan, was more culpable for the bombing. Tamerlan Tsarnaev was killed as police closed in on the brothers days after the April, 2013 attack.

In fact, the district court engaged in as exhaustive a voir dire as  any I have encountered in more than 20 years as a federal prosecutor.

Somewhat to my surprise, most of the Court’s unusually long 90-minute hearing was  devoted to the contention that the district court erred in restricting a speculative line of mitigation evidence:

Said Tsarnaev’s lawyer at the Supreme Court, Ginger D. Anders: “The theory is that Tamerlan influenced Dzhokhar Tamerlan, indoctrinated Dzhokhar, and Dzhokhar radicalized because of Tamerlan, and Tamerlan was more likely to have led the bombings. I think Tamerlan’s commission of a previous jihadist murder was directly relevant to that theory.”

Tamerlan was implicated in those murders after the bombing and after his death. A man named Ibragim Todashev said Tamerlan had recruited him to rob three men in 2011. After they were bound, Todashev said, Tamerlan slashed their throats.

But as he was being interrogated, Todashev charged toward investigators, who shot and killed him.

It might be useful to remember that the next time you hear some breathless story about how law enforcement shot an “unarmed” person.

But I digress.  Justices Alito and Kavanaugh were having none of the defense speculation about what what might have happened in the earlier case and what Tsarnaev might have thought about it:

Justices Samuel A. Alito Jr. and Brett M. Kavanaugh wondered how such speculative evidence could have convinced jurors that Dzhokhar was less culpable for setting a bomb in a terrorist attack several years later.

“We don’t know what happened,” said Kavanaugh. “Todashev had all the motive in the world to point the finger at the dead guy.”

…which is, of course, a standard  tactic in capital, and the great majority of other, defense schemes.  It was always someone else’s fault, and it’s wonderfully convenient if the someone else is, well, unavailable to speak for himself.

It’s risky to try to predict a SCOTUS outcome from oral argument.  Still, I’ll give it a shot:  Death penalty re-instated by a vote of 6-3, along ideological lines.



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