Supreme Court will consider restoring the Boston Marathon bomber’s death sentence

By Robert Barnes,

The Supreme Court announced Monday that it will consider reinstating the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, setting up a dilemma for President Biden, who has said he opposes capital punishment.

The court plans to review 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 trial did not adequately vet potential jurors for bias. It also said some evidence was improperly withheld that might have indicated Tsarnaev’s older brother, Tamerlan, was more culpable for the attack.

Tamerlan Tsarnaev was killed as police closed in on the brothers days after the April 2013 attack.

Dzhokhar Tsarnaev admitted his role in the bombing, which killed three people and wounded hundreds of others at the annual race’s finish line. At issue is the appeals court decision that he is entitled to a new penalty-phase trial to determine whether he deserves execution.

[Death sentence overturned for Boston Marathon bomber]

The Supreme Court’s decision to hear the case in its next term, which begins in October, raises a quandary for the administration — evident in White House press secretary Jen Psaki’s ambiguous answer when was asked about it Monday.

“President Biden has made clear, as he did on the campaign trail, that he has grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness,” Psaki said.

She added: “He’s also expressed his horror at the events that day and his actions and Tsarnaev’s actions, I should say, as vice president. He spoke to the people of Boston on the first anniversary of the horrible crime, as he said then, ‘We are Boston. We are America. We own the finish line.’ ”

[Dzhokhar Tsarnaev found guilty on all counts in Boston Marathon bombing]

When Biden was vice president, the Obama administration pursued the death penalty for Tsarnaev. After the appeals court decision was announced in July, President Donald Trump was adamant his administration would ask the Supreme Court to intervene, calling Tsarnaev an “animal.”

Trump’s Justice Department was aggressive in restarting the federal death penalty.

After years of no federal executions, the Trump administration put 13 inmates to death in its final months. No federal executions currently are scheduled, and it seems likely because of Biden’s opposition that current Justice Department policy would mean something of a moratorium on executions, either official or not.

But the Supreme Court has been considering whether to take up Tsarnaev’s case for two months, and the Biden administration did not intervene to express a contrary view of the government’s request.

The case carries some broader issues about pretrial publicity and evidence that are important to prosecutors beyond the issue of whether Tsarnaev is executed.

The appeals court in July ruled that his penalty-phase trial could have been tainted by jurors who had already made up their minds because of the extensive publicity surrounding the case.

“Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution,” wrote Judge O. Rogeriee Thompson.

But she added: “A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished.”

The panel also said the trial judge made a mistake by not allowing jurors to know that Tamerlan Tsarnaev had been tied to a 2011 triple murder in Waltham, Mass. Dzhokhar Tsarnaev’s lawyers argued that could convince jurors that his older brother was more of an influence in the marathon bombings.

The government told the Supreme Court in its request that the trial judge’s actions were defensible and that prosecutors should not have to redo “one of the most important terrorism prosecutions in our nation’s history.”

“To reinstate the sentences that the jury and the district court found appropriate for [Tsarnaev’s] heinous acts, the government will have to retry the penalty phase of the case; the court will have to conduct (and prospective jurors will have to undergo) a voir dire that will presumably be much longer and more onerous than the original 21-day proceeding; and the victims will have to once again take the stand to describe the horrors that respondent inflicted on them” the government’s petition said. Voir dire is the process by which prospective jurors are chosen or eliminated ahead of trial.

Tsarnaev currently is in federal prison in Colorado.