Dzhokhar Tsarnaev is portrayed in this brochure photo presented as evidence by the US Attorney’s Office in Boston, Massachusetts, on March 23, 2015.
US Attorney’s Office in Boston | Reuters
The Supreme Court said on Monday it would decide whether the death penalty could be reinstated for Dzhokhar Tsarnaev, who was convicted of plotting together with his older brother the 2013 attack on the Boston Marathon finish line, in which three died and hundreds were injured.
In an order, the court agreed to hear an appeal filed by the Justice Department against a decision of a court of first instance that overturned Tsarnaev’s death sentence. The US Circuit Court of Appeals said that the court judge, US District Court judge George O’Toole, did not adequately ensure that jurors were impartial in the high profile case.
Tsarnaev’s lawyers argued in court documents that judges should not consider the Justice Department’s appeal. They wrote that, even if the court supports the Department of Justice in the case, it is likely that the 1st Circuit would still give the death sentence for other reasons related to the jury’s misconduct.
Tsarnaev, 27, received 20 life sentences in addition to the death penalty, and will remain in prison for the rest of his life, regardless of the Supreme Court’s action.
The case was appealed by the Justice Department in October, while former President Donald Trump was still in office. It will be a test of President Joe Biden’s commitment to ending the federal death penalty, which Trump resumed after a break of nearly two decades.
Civil rights groups pressured Biden to order Justice Department prosecutors to stop seeking the sentence. Biden campaigned to work with Congress to eliminate death sentences at the federal level and to encourage states to do so as well.
The court will likely hear the case early in its term next fall, with a decision expected in the summer of 2022.
The White House and a lawyer for Tsarnaev did not immediately return requests for comment.
The central dispute in the case is whether jurors in Tsarnaev’s case were properly selected to eliminate the potential bias resulting from extensive media coverage of the attack.
While the court asked jurors how much they read about the case, O’Toole rejected requests by Tsarnaev’s lawyers to ask potential jurors more specific questions about the coverage they had seen and their impressions of the event.
Circuit Judge O. Rogeriee Thompson, in her July 2020 appeals court decision, wrote that the lower court’s decision robbed Tsarnaev of receiving a fair trial, citing questions asked to jurors, as well as the decision to exclude evidence that Tsarnaev’s older brother, Tamerlan Tsarnaev, influenced Dzhokhar.
“A central promise of our criminal justice system is that even the worst among us deserves to be tried fairly and legally punished,” Thompson wrote to the court.
Thompson ordered the district court to assemble a new jury and hold a new trial “strictly limited to the sentence Dzhokhar should receive on death charges”.
The Justice Department asked the judges to review that decision. The then acting attorney general Jeffrey Wall wrote in a document that erasing a “nationally significant” capital sentence based on a specific circuit rule weighs heavily in favor of this Court’s intervention. “
“In view of the importance of this case for the Nation, the review of the appeal must include the highest Court of the Nation,” wrote Wall.
He added that if the court did not reverse the 1st Circuit decision, the United States would be forced to “abandon the search for the death penalty in this case” or conduct another trial, which would require the bombing victims “to relive their disturbing experiences.”
Tamerlan Tsarnaev was killed in a shootout with the police days after the bombing. Dzhokhar Tsarnaev is in prison in Florence, Colorado.