WASHINGTON (AP) – The Biden administration this week will try to convince the Supreme Court to reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev by arguing that a jury was not required to examine evidence that the government itself had in a earlier phase of the case.
Tsarnaev’s guilt in the deaths of three people in the shocking bombing at the finish of the marathon in 2013 is not at issue in the case the judges will hear on Wednesday – only whether he should be sentenced to life imprisonment or death.
The court is also unlikely to consider the government’s aggressive push for a death penalty for Tsarnaev, even though it has halted federal executions and President Joe Biden has called for an end to the federal death penalty.
Instead, the main focus will be on evidence that Tsarnaev’s lawyers wanted the jury to hear supporting their argument that his older brother, Tamerlane, was the mastermind behind the attack and that the impressionable younger brother was somehow was less responsible. The evidence implicated Tamerlan Tsarnaev in a triple murder in Waltham, a Boston suburb, on the 10th anniversary of the September 11, 2001 terrorist attacks.
The federal appeals court in Boston ruled last year that the trial judge erred in excluding the evidence and rejected Tsarnaev’s death sentence. There is a second issue in the case: whether the trial judge did enough to question jurors about their exposure to extensive coverage of the bombing.
The Trump administration, which carried out 13 executions in the past six months, quickly appealed. When the new government indicated no change of position, the court agreed to review the case.
Tsarnaev’s lawyers have never disputed that he and his brother detonated the two bombs at the finish line of the marathon on April 15, 2013. Lingzi Lu, a 23-year-old Boston University student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford; and 8-year-old Martin Richard, who had gone to the marathon with his family, were killed. More than 260 people were injured.
During a four-day manhunt for the bombers, Massachusetts Institute of Technology police officer Sean Collier was shot dead in his car. Boston police officer Dennis Simmonds also died a year after being injured in a confrontation with the bombers.
Police arrested a bloodied and injured Dzhokhar Tsarnaev in the Boston suburb of Watertown, where he hid in a boat parked in a backyard hours after his brother’s death. Tamerlan Tsarnaev, 26, had had a shootout with police and was run over by his brother as he fled.
Tsarnaev, now 28, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the murder of Collier during the Tsarnaev brothers’ attempted escape. The appeals court upheld all but a few of his convictions.
A convicted murderer who begs a jury to incarcerate him for life, rather than vote for his execution, has a lot of leeway to provide evidence that he thinks would make a death sentence less likely.
The 2011 killings, defense lawyers said, got to the heart of their argument that Tsarnaev was deeply influenced and radicalized by his respected brother, who had already shown he was capable of extreme violence. The younger sibling was less responsible for the chaos at the marathon, they said.
“So the evidence made it much more likely that Dzhokhar was acting under Tamerlane’s radicalizing influence and that Tamerlane was directing the bombings,” Ginger Anders, the lead lawyer of Tsarnaev’s Supreme Court, wrote in a lawsuit.
For its part, the administration states that it does not dispute the leading role of the older brother and that defense lawyers have been able to defend that case. Still, the jury sentenced Tsarnaev to death, wrote Acting Solicitor General Brian Fletcher.
Tsarnaev “made the choice to commit a terrorist attack on children and other innocent bystanders during the marathon, and the jury held him responsible for that choice,” Fletcher wrote.
The account of Tamerlan’s involvement in the earlier murders came from a friend, Ibragim Todashev, who interviewed investigators after the marathon attack. Todashev told authorities that Tamerlane had recruited him to rob the three men, and they tied the men up with duct tape before Tamerlane slit their throats to prevent witnesses from being left behind.
In a bizarre twist, while Todashev was being questioned in Florida, he was shot dead after authorities said he assaulted the officers. The agent who killed Todashev was acquitted of any criminal misconduct.
Dzhokhar also told a college friend that his brother was involved in the Waltham murders and committed “jihad,” a lawyer representing the friend told prosecutors. No one has ever been charged with the triple murder.
But prosecutors said the evidence linking Tamerlan to the Waltham murders was unreliable, irrelevant to Dzhokhar’s participation in the marathon attack, and would only confuse the jurors. The judge who oversaw the trial agreed.
Still, authorities previously used Todashev’s statements to request a search warrant to search Tamerlane’s car after the bombings for blood, DNA and other evidence relevant to the triple murder.
Anders called the government’s description of the statements as unreliable “a breathtaking turn of events” after defending their reliability to obtain a warrant.
The Justice Department said different standards apply and federal agents when asking for a search warrant did not say every word of what Todashev said was true.
A court ruling for Tsarnaev would raise the possibility of a new criminal trial. force victims and their families to relive that horrific time, if the administration wanted to try again for a death sentence.
Two years after the attack, the parents of the youngest victim wrote an essay printed on the front page of The Boston Globe urges the Justice Department to end its pursuit of the death penalty. Denise and Bill Richard wrote that years of calls to keep Tsarnaev’s name in the news would force them to keep reliving their ordeal and prevent them from beginning to heal.
“As long as the defendant is in the spotlight, we have no choice but to live up to a story told on his terms, not ours. The minute the defendant disappears from our newspapers and TV screens is the moment we begin the process of rebuilding our lives and families,” they wrote.
Richer reported from Boston.