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Supreme Court reinstates death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Washington Post logo The Washington Post 3/4/2022 Robert Barnes
Dzhokhar Tsarnaev, arrested in the Boston Marathon bombing, is pictured in this handout photo presented as evidence by the U.S. Attorney's Office in Boston. © Handout ./Reuters Dzhokhar Tsarnaev, arrested in the Boston Marathon bombing, is pictured in this handout photo presented as evidence by the U.S. Attorney's Office in Boston.

The Supreme Court on Friday reinstated the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, convicted in the 2013 attack that killed three people and left hundreds injured.

The vote was 6 to 3, with the liberal justices in dissent. Tsarnaev’s guilt was not at issue, but the court’s decision reversed an appeals court ruling that jury deliberations about whether Tsarnaev deserved death or life in prison were tainted by some of the presiding judge’s decisions.

Justice Clarence Thomas, writing for the majority, said the process was fair.

“Dzhokhar Tsarnaev committed heinous crimes,” Thomas wrote, joined by fellow conservatives. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

The decision will not change Tsarnaev’s status, at least in the short term. Even though his administration inherited the case and urged the Supreme Court to overturn the appeals court, President Biden opposes capital punishment and Attorney General Merrick Garland has imposed a moratorium on the federal death penalty to study it further.

Biden “expressed horror at the events of the Boston Marathon bombing at the time,” White House press secretary Jen Psaki said after the court ruling. “He believes that Tsarnaev should be punished for responsibility in the murder of three innocent people at the marathon, for wounding dozens of others … he knows the deep pain that his crime caused.”

But she also said Biden “has expressed before that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness.”

Rachael Rollins, the U.S. attorney in Boston, said other legal issues “must be addressed by various courts” in Tsarnaev’s case. “Legal rulings don’t erase trauma and pain,” she said in a statement. “Our focus today, and always, is on the hundreds of families that were deeply impacted and traumatized by this horrific act of domestic terrorism.”

From 2015: Tsarnaev found guilty on all counts in Boston Marathon bombing trial

Tsarnaev did not contest his guilt at trial, and the three-judge panel of the U.S. Court of Appeals for the 1st Circuit upheld his conviction on 27 charges. That included charges in the deaths of a graduate student from China, Lingzi Lu, a restaurant manager named Krystle Campbell, and 8-year-old Martin Richard of Boston.

More than 260 people were wounded — some grievously — by the bombs the 19-year-old Tsarnaev and his older brother Tamerlan placed at the April 2013 running of the Boston Marathon. The brothers also killed Sean Collier, a police officer at the Massachusetts Institute of Technology while they were on the run. Tamerlan was killed days later after a violent confrontation with police in Watertown.

But last July, the appeals court judges 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.

Past coverage: Supreme Court to consider Boston Marathon bomber’s death sentence

In overturning Tsarnaev’s death sentence, the panel also said some evidence was improperly withheld that might have indicated Tamerlan was domineering and had radicalized his younger brother.

But Thomas said the 1st Circuit was wrong in second-guessing U.S. District Judge George A. O’Toole Jr.'s handling of the trial.


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Based on O’Toole’s years of trial experience, Thomas wrote, he concluded “that jurors who came in with some prior knowledge would still be able to act impartially. … The District Court’s decision was reasonable and well within its discretion, as our precedents make clear.”

Prosecutors seek money from Boston Marathon bomber’s prison bank account

The second issue was O’Toole’s decision not to let Tsarnaev’s lawyers introduce the older brother’s alleged role in a triple murder that was unrelated to the bombing. They said that would have shown how dangerous Tamerlan was and would show him to be the ringleader.

But those murders were never solved, and Thomas said the unrelated crime would simply have been confusing to the jury. “Nor was there any way to confirm or verify the relevant facts, since all of the parties involved were dead,” Thomas wrote.

He was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

In dissent, Justice Stephen G. Breyer addressed only one part of Tsarnaev’s case — the claim that Tamerlan “took the leading role and induced Dzhokhar’s participation in the bombings.”

At the penalty phase of the trial, “if courts admit evidence of past criminal behavior, unrelated to the crime at issue, to show aggravating circumstances, why should they not do the same to show mitigating circumstances?” Breyer wrote.

Information that Tamerlan took part in “ideologically motivated murders in 2011 supports the claim that Tamerlan was the violent, radicalizing force behind the ideologically motivated bombings a year and a half later,” Breyer wrote. He added that “it would have taken only one juror’s change of mind to have produced a sentence other than death, even if a severe one.”

Breyer’s dissent was joined by Justices Sonia Sotomayor and Elena Kagan. But neither joined a part of the opinion in which Breyer again expressed his doubts about capital punishment.

“I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty,” Breyer wrote. “This case provides just one more example of some of those problems.”

The crimes rocked the Boston area, and the 1st Circuit’s opinion last summer reignited those feelings.

Dic Donohue, a law enforcement officer who was wounded in pursuit of the Tsarnaevs, tweeted after the Supreme Court’s decision was announced that “the back and forth never ends. Bottom line: he can’t kill anyone else.”

Rep. Ayanna Pressley (D-Mass.) called the decision “deeply disappointing.” She has filed legislation to end the federal death penalty.

“State-sanctioned murder is not justice, no matter how heinous the crime,” she said in a statement. “I remain committed to accountability and healing for everyone impacted by the Boston Marathon bombing and I pray for those who are forced to re-live their trauma each time we are reminded of that devastating day.”

The case is U.S. v. Tsarnaev.

FBI surveillance case

The court also ruled against a group of Muslim men who claimed they were targeted because of their religion for improper FBI spying.

But the court’s narrow and unanimous ruling did not end their case.

The government had said allowing the lawsuit to move forward could have revealed damaging national security information, and invoked the “state secrets” privilege. The U.S. Court of Appeals for the 9th Circuit, though, ruled that a provision of the Foreign Intelligence Surveillance Act had altered the government’s ability to make that claim.

In an opinion written by Alito, the court said the 9th Circuit was wrong.

The decision will likely make it more difficult for the men, who filed a class-action lawsuit saying the FBI had launched a surveillance operation on them and hundreds of others affiliated with mosques in Southern California.

The case is FBI v. Fazaga

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