A three-judge panel of the U.S. Court of Appeals for the First Circuit, in Boston, upheld Dzhokhar Tsarnaev’s convictions in 2020 on 27 counts.
Credit...via F.B.I.

Supreme Court Restores Death Sentence for Boston Marathon Bomber

The Biden administration, which announced a moratorium on federal executions, has pursued the case against Dzhokhar Tsarnaev, who helped carry out the 2013 bombings.

· NY Times

WASHINGTON — The Supreme Court on Friday reinstated the death sentence of Dzhokhar Tsarnaev, who was convicted of helping carry out the 2013 Boston Marathon bombings that killed three and injured hundreds more.

The vote was 6 to 3, with the court’s three liberal members in dissent. The majority sided with the Biden administration in ruling that a federal appeals court had erred in overturning the death sentence a jury had handed down for Mr. Tsarnaev’s role in the bombings.

“Dzhokhar Tsarnaev committed heinous crimes,” Justice Clarence Thomas wrote for the majority. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

Friday’s ruling cleared the way for Mr. Tsarnaev’s execution, but that is unlikely to happen in the near future in light of a moratorium the Biden administration has imposed on carrying out the federal death penalty.

The bombings, near the finish line of the marathon, transformed a beloved tradition into bloody carnage. The attack left 260 injured, many of them grievously. Seventeen people lost limbs.

Dzhokhar Tsarnaev and his older brother Tamerlan, Justice Thomas wrote, “each brought a backpack containing a homemade pressure-cooker bomb packed with explosives inside a layer of nails, BBs and other metal scraps.”

“Each detonation sent fire and shrapnel in all directions,” Justice Thomas wrote. “The blast from Tamerlan’s bomb shattered Krystle Campbell’s left femur and mutilated her legs. Though bystanders tried to save her, she bled to death on the sidewalk.”

“Dzhokhar’s bomb ripped open the legs of Boston University student Lingzi Lu,” he wrote. “Rescuers tried to stem the bleeding by using a belt as a makeshift tourniquet. She too bled to death.”

A law enforcement officer was killed as the brothers fled a few days later. Tamerlan Tsarnaev died after a shootout with the police during which he was run over by his brother, who was driving a stolen vehicle.

A three-judge panel of the U.S. Court of Appeals for the First Circuit, in Boston, upheld Dzhokhar Tsarnaev’s convictions in 2020 on 27 counts. But the appeals court ruled that his death sentence should be overturned because the trial judge had not questioned jurors closely enough about their exposure to pretrial publicity and had excluded evidence concerning Tamerlan Tsarnaev.

Justice Thomas wrote that the appeals court was wrong on both points.

Judge George A. O’Toole Jr., who presided over the trial, had conducted a detailed and thorough questioning of 256 prospective jurors over three weeks, Justice Thomas wrote, after culling an initial pool of 1,373 jurors using a 100-question form.

Mr. Tsarnaev’s lawyers had asked that jurors be required to detail what they had heard and read in news reports about the bombing. Judge O’Toole rejected the request, calling it unfocused and unmanageable, a ruling that Justice Thomas wrote was “reasonable and well within his discretion.”

“In sum,” Justice Thomas wrote, “the court’s jury selection process was both eminently reasonable and wholly consistent with this court’s precedents.”

The dissenting justices did not quarrel with Justice Thomas’s analysis of Mr. Tsarnaev’s objections to how the jury was selected. The justices diverged, however, on whether evidence concerning Tamerlan Tsarnaev should have been admitted.

In a 2013 F.B.I. interview, a friend of Tamerlan Tsarnaev named Ibragim Todashev admitted to participating with him in the robbery of three drug dealers in Waltham, Mass., in 2011. But he added that Tamerlan Tsarnaev alone had slit the victims’ throats. As Mr. Todashev started to write down his confession, he suddenly attacked the agents, who shot and killed him.

Prosecutors relied on the confession to obtain a search warrant for Tamerlan Tsarnaev’s car.

Judge O’Toole did not allow Mr. Tsarnaev’s lawyers to present evidence about the Waltham murders to support their argument that their client had been under his brother’s influence, saying it would confuse the jury.

Justice Thomas said that ruling was proper, too. “Dzhokhar sought to divert the sentencing jury’s attention to a triple homicide that Tamerlan allegedly committed years prior, though there was no allegation that Dzhokhar had any role in that crime,” Justice Thomas wrote. “Nor was there any way to confirm or verify the relevant facts, since all of the parties involved were dead.”

“It certainly did not show that, almost two years later, Tamerlan led and dominated Dzhokhar in a manner that would mitigate Dzhokhar’s guilt,” Justice Thomas added.

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett joined Justice Thomas’s opinion in the case, United States v. Tsarnaev, No. 20-443.

In dissent, Justice Stephen G. Breyer wrote that he would have allowed Mr. Tsarnaev to present evidence concerning the Waltham murders.

“Dzhokhar conceded his guilt,” Justice Breyer wrote. “The only issue was whether he deserved to die.”

He added that the jury had seemed to take account of the brothers’ relationship.

“The jury did not recommend the death penalty for the charges related to the actions Dzhokhar took together with Tamerlan, and only recommended death for the charges related to the actions Dzhokhar took alone,” Justice Breyer wrote

Evidence concerning the Waltham murders could have made a difference, he wrote. “This evidence may have led some jurors to conclude that Tamerlan’s influence was so pervasive that Dzhokhar did not deserve to die for any of the actions he took in connection with the bombings, even those taken outside of Tamerlan’s presence.”

He added that if Mr. Todashev’s confession was reliable enough for a search warrant it was presumably reliable enough to put before a jury.

More generally, he wrote that “death penalty proceedings are special.”

“Unlike evidentiary determinations made in other contexts,” Justice Breyer wrote, “a trial court’s decision to admit or exclude evidence during a capital sentencing proceeding is made against the backdrop of a capital defendant’s constitutional right to argue against the death penalty.”

Justices Sonia Sotomayor and Elena Kagan joined almost all of Justice Breyer’s opinion.

Lawyers for the federal government during the Trump administration had urged the Supreme Court to hear the case, United States v. Tsarnaev, No. 20-443. The Biden administration pursued it, even though President Biden has said he will work to abolish the death penalty and the Justice Department under his administration has paused federal executions.

Jen Psaki, the White House press secretary, said on Friday that Mr. Biden “believes that Tsarnaev should be punished” but “has deep concerns about whether capital punishment is consistent with the values that are fundamental to our justice and fairness.”

The reaction in Boston was muted and mixed.

Representative Ayanna Pressley, a Democrat, said in a statement that the court’s decision was “deeply disappointing.”

“State-sanctioned murder,” she said, “is not justice, no matter how heinous the crime.”

Gov. Charlie Baker, who supported the jury’s decision in 2015 to impose a death sentence on Mr. Tsarnaev, welcomed the ruling.

“While nothing can ever bring back those we lost on that terrible day, I hope today’s decision will bring some sense of justice for victims of the Boston Marathon bombing and their families,” he said.

Dic Donahue, a retired transit police officer who was shot during the firefight after the bombings, said he was not surprised by the mixed reactions. “It was the jury’s decision,” he said, “and the penalty is out of my hands.”

Matt Berg contributed reporting.