Updated October 13, 2021 at 4:16 PM ET
The U.S. Supreme Court appeared to lean toward reinstating the death sentence imposed on the Boston Marathon bomber, though the court's liberal justices were incredulous about the actions of the district court judge in the original trial.
The question in Wednesday's case was not Dzhokhar Tsarnaev's guilt, but whether he was properly sentenced to death. Although Massachusetts has abolished the death penalty, Tsarnaev was convicted on 30 federal charges and sentenced to death for six of those crimes. But a federal appeals court in Boston subsequently overturned the death sentences.
The justices focused on the trial judge's refusal to allow evidence that the defense said would show that Dzhokhar, 19 at the time of the bombing, was under the influence of his brother Tamerlan, seven years older. Specifically, the judge would not allow the jury to hear evidence allegedly showing that Tamerlan two years before the bombing slit the throats of three men in Waltham, Mass., in an act of jihad on the anniversary of the 9/11 attack.
Justice Elena Kagan questioned the omission of that evidence at the penalty phase of the trial, when the defense is supposed to be allowed leeway in showing why the defendant is less culpable, and not deserving of the death penalty.
"At that point, it's the job of the jury, isn't it, to decide on the reliability of the evidence?" she asked.
Justice Stephen Breyer seemed to agree.
"They had no other defense. They agreed he was guilty," he said. "Their only claim was, 'Don't give me the death penalty because it's my brother who was the moving force.' "
But several of the court's conservatives chimed in to note that all the participants in the Waltham killings are now dead — Tamerlan and the friend who identified him as the killer are dead: Tamerlan after a shootout with police after the Boston bombing; the friend a month later after he attacked FBI agents.
"The theory that Tamerlan was the lead player is entirely unreliable," Justice Brett Kavanaugh said.
Chief Justice John Roberts added: "There were no witnesses available. They were both dead."
But lawyer Gingers Anders, representing Dzhokhar, maintained that there was corroboration of Tamerlan's role in the three murders — evidence that included an FBI affidavit, a search of Tamerlan's computer and more. Without that evidence before the jury, she said, the prosecution was able to portray the older brother as merely bossy. The defense, she said, was not allowed to show the jury that Dzhokhar was strongly influenced and led by his violent older brother.
"The government could not have made those arguments. If it had, the defense would have said, 'Tamerlan is not just bossy, he's violent. He's already committed violent jihad. Dzhokhar knows about it,' " she said. "There's no question that that would have a profound effect."
Indeed, as Justice Kagan observed, even without that evidence, "this jury actually produced a very nuanced verdict. It was only the acts in which the older brother was not on the scene in which death was appropriate."
Addressing Deputy Solicitor General Eric Feigin, Kagan asked, what do you suppose the jury might have thought if they knew that the older brother had murdered three people?
Feignin replied that the jury saw video evidence of what the younger brother did.
"What those exhibits show is the respondent physically separating himself from his brother near the finish line of the Boston Marathon, positioning himself behind a group of children, putting down his backpack, contemplating for about three minutes, taking out his phone and calling his brother, after which the first bomb goes off," he said. "He barely gets off screen before, 20 seconds later, the second bomb explodes, killing and maiming people."
Justice Amy Coney Barrett then interjected a note of reality.
"Mr. Feigin, I'm wondering what the government's end game is here," she asked.
As she noted, the Biden administration has imposed a temporary moratorium on federal executions, but the administration is still defending the Tsarnaev death sentence.
"If you win, presumably that means he is relegated to living under the threat of a death sentence that the government doesn't plan to carry out," she said. "So I'm just having trouble following the point."
Feigin did the best he could, explaining that the attorney general is reviewing the Trump administration's execution protocols, and in the meantime asking the Supreme Court to uphold the jury's verdict.
A decision from the Supreme Court is expected by summer.
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