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May 7, 2014

Boston Marathon bomber's defense team starts legal attack on federal death penalt

As reported in this Boston Globe article, "attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev today asked a federal judge to declare the federal death penalty unconstitutional for a number of reasons, including the fact that Massachusetts itself does not permit capital punishment." Here is more about the filing:

The attorneys also argued that the federal death penalty violates the Eighth Amendment ban on “cruel and unusual punishment" because there is the possibility that innocent people will be executed and there is a history of a “seemingly ineradicable pattern of racially disparate enforcement."

The attorneys, in a filing in US District Court in Boston, noted that the First US Circuit Court of Appeals had rejected similar arguments raised in the case of serial killer Gary Sampson in 2007. But the attorneys argued that new developments, including changes in the law and public revulsion over events such as the recent botched execution in Oklahoma, argued for US District Judge George A. O’Toole Jr. to take a new look.

“The vulnerability of this particular death penalty prosecution to Eighth Amendment challenge is all the greater in light of recent legal authority and scholarship that cast doubt on the power of the federal government to impose the death penalty in states, like Massachusetts, that have abolished it," the attorneys wrote. The attorneys argued that the Eighth Amendment was not just intended to secure individual rights but also to constrain the power of the federal government.

“When the Eighth Amendment is properly understood as part of an effort to limit the power of the federal government, it should prohibit the federal government from inflicting severe punishments that are not authorized by state law,” the attorneys said.

Tsarnaev, 20, is being held at the federal prison at Fort Devens in Ayer. Prosecutors are seeking the death penalty against him if he is convicted of setting off the April 15, 2013, bombs that killed three people and injured more than 260. He has pleaded not guilty to all charges. His older brother and alleged accomplice, Tamerlan, was killed in a confrontation with police in Watertown. The brothers also allegedly killed an MIT police officer; Tsarnaev faces state charges in that case....

In a separate motion, the lawyers also argued that if the grand jury that indicted Tsarnaev on 30 counts did not know he would face the possibility of the death penalty, then he should not be subject to it. The lawyers sought grand jury transcripts to find out what the grand jury knew about the possible consequences of its indictments.

May 7, 2014 at 11:49 PM | Permalink


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Tsarboy: He looks like a punk and tries to look like a punk. The result will be that he gets "punked" in prison. If he were to get punked four times a week for life then I think the death penalty should be considered as something that would alleviate his pain. If he is to be killed by the government then death by bombing would be fitting.

Posted by: Liberty1st | May 8, 2014 12:02:32 AM

I wish there was a link to the briefs. I would absolutely make a Commerce Clause argument here based on Lopez. Murder is generally a local issue unless there is an actual federal interest and I think the "substantially affects interstate commerce" here is actually fairly attenuated. It really seems to be basically the same as the jurisdictional hook in Lopez. Without more, basically every homicide is arguably a federal case and that's a pretty big expansion of federal power (particularly when there are competing federalism concerns in a state where the locality has rejected the death penalty).

That being said, I can't see five votes of the US Supreme Court overturning a murder conviction on these grounds when the state itself has not prosecuted.

Posted by: Erik M | May 8, 2014 6:40:55 AM

The Boston marathon as a whole (a lot less "local" than various things regulated via the Commerce Clause) and the flight here as well as probably the source of the materials provide the interstate commercial hook as well as perhaps the international aspects of the case given the defendant. Also, the use of the device and terroristic aims that as a whole would seriously affect things that affect interstate commerce. Cf. The Bond case.

This is not "every homicide."

Posted by: Joe | May 8, 2014 7:35:51 AM

"... the possibility that innocent people will be executed and there is a history of a “seemingly ineradicable pattern of racially disparate enforcement."

Should a motion be about the actual case?

Where is the innocence? And he is a cute white boy.

Doesn't that argument make the motion frivolous and subject to sanction for wasting the time of the court?

Posted by: Supremacy Claus | May 8, 2014 8:28:58 AM

Supremacy Claus:: "Should a motion be about the actual case?"

-- Relevance is not in the operational vocabulary of the capital defense attorney.
.... .... neither is harmless error
.... .... but such as "mentally impaired and therefore ineligible for execution", par example,
is at the ready.

Posted by: Adamakis | May 8, 2014 9:45:38 AM

well I don't think there is any such thing as "harmless error" when talking about people's life.

Posted by: rodsmith | May 8, 2014 10:41:50 AM

Beg to differ:
“Harmless errors include technical errors that have no bearing on the outcome of the trial”
-- www.law.cornell.edu/wex/harmless_error
e.g. “Respondent was sentenced to death for felony murder. On state postconviction review, he argued that he had not been convicted of an offense
for which a death sentence could be imposed because the indictment did not charge him as a "principal offender" under the relevant Ohio statute.”

Yet, this murderer was the “was the only individual charged [and] the jury … determined that [he] was the principal offender." !
-- 540 U.S. 12

Trying to get off on a technicality, an irrelevant joke of a complaint.

Posted by: Adamakis | May 8, 2014 12:30:49 PM

I still say those who use the excuse "harmless error" to excuse crimes committed by the state are full of it.

Posted by: rodsmith | May 9, 2014 1:04:38 AM

I would also consider any sentence and follow up confinement illegal based on it and therefore would consider it my legal right to remove myself from said confinement no matter who I had to hurt or even kill to do it.

Posted by: rodsmith | May 9, 2014 1:05:58 AM

// therefore would consider it my legal right to remove myself from said confinement no matter who I had to hurt or even kill to do it.//

-- So why should anyone heed your opinions on law and policy?

Posted by: Adamakis | May 9, 2014 11:08:46 AM

no offense there Adamakis but once apon a time everyone thought rosa parks was wrong when she told them to go to hell I'm not sitting in the back of that damn bus.

just because most of the lawyers and judges and politicians agree with you. Does NOT make you or them right.

history will eventually decide which side was right.

Posted by: rodsmith | May 9, 2014 5:46:09 PM

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