The US Supreme Court will likely reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev — after a federal appeals court tossed the sentence last year.
In more than 90 minutes of oral arguments Wednesday, the court’s six conservative justices seemed swayed by the Biden’s administration belief that the 1st US Circuit Court of Appeals in Boston court erred when it dismissed Tsarnaev’s death sentence for his role in the 2013 bombing.
The devastating blast killed three people and wounded more than 260 others when two homemade pressure-cooker bombs were detonated near the finish line of the major sporting event.
The high court’s three liberal justices, meanwhile, appeared more favorable to Tsarnaev, now 28. The Kyrgyz-American national would have to face a new sentencing trial if the appellate ruling were affirmed and the Biden administration decided to keep pushing for capital punishment.
The appellate court vacated Tsarnaev’s death sentence in July 2020, ruling he didn’t get a fair trial due to potential juror bias over exposure to news coverage of the bombing and that a trial judge improperly excluded evidence that may have shown Dzhokhar was influenced by his late older brother, Tamerlan.
Days after the bombing on April 15, 2013, Tamerlan, 26, died during a police shootout and was run over by his brother as he fled. Hours later, Dzhokhar was captured while hiding in a boat in the Boston suburb of Watertown.
The primary focus of the high court arguments Wednesday related to evidence that implicated Tamerlan in a triple killing in Waltham outside Boston on the 10th anniversary of the 9/11 terrorist attacks.
Ginger Anders, Dzhokhar Tsarnaev’s lead Supreme Court attorney, told the justices the evidence bolstered the theory that “Dzhokhar radicalized because of Tamerlan.” She claimed Tamerlan indoctrinated his younger brother.
But the trial judge sided with prosecutors that the evidence tying Tamerlan to the triple homicide wasn’t reliable and irrelevant to Dzhokhar’s role in the marathon attack.
Justice Elena Kagan said Wednesday that jurors should have been able to decide for themselves if that evidence was reliable, saying “that’s the role of the jury.”
However, conservative justices, including Brett Kavanaugh, suggested the judge was right to keep the Waltham killings from the jury because both Tamerlan and a man who implicated him, Ibragim Todashev, had died before the start of the trial.
“We don’t know what happened,” Kavanaugh said. “Todashev had all the motive in the world to point the finger at the dead guy.”
Todashev, 27, told authorities after the marathon bombing that Tamerlan recruited him to rob the three men before the elder Tsarnaev slashed their throats.
Todashev then died in May 2013 when an FBI agent shot the Chechen man in Orlando while he was being questioned by authorities about his friendship to Tamerlan.
Todashev’s statements were deemed reliable enough that prosecutors got a search warrant for evidence tied to the triple murder, which led Justice Stephen Breyer to ask Wednesday whether it was admissible in a “death case” if it sufficed for a search warrant.
An attorney for the Justice Department, Eric Feigin, said different standards apply and that federal agents weren’t saying all of what Todashev said was true. He also pointed out Tsarnaev’s admission of responsibility for the bombing and video showing him putting a shrapnel bomb hidden in a backpack behind a group of children.
The April 15, 2013, bombing killed three people, including an 8-year-old boy. Former Attorney General Bill Barr has previously said the Trump administration would do “whatever’s necessary” to reinstate Tsarnaev’s death penalty, ultimately appealing the lower court ruling. The Supreme Court then agreed to review the case when the Biden administration didn’t indicate any change of view.
President Joe Biden, however, has called for an end to the federal death penalty – a fact noted by Justice Amy Coney Barrett during Wednesday’s arguments.
While questioning the “government’s end game,” Barrett said that if the Biden administration wins its case, Tsarnaev would be “living under a death sentence” that the US doesn’t intend to carry out.
When the justices will issue their ruling was not immediately clear, the Boston Globe reported.
With Post wires
