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March 22, 2021

SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

As noted in this post, the First CIrcuit last summer overturned the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, and the Trump administration sought review in October on these two questions in the government's cert petition:

  1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
  2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

This morning, as detailed in this new order list, the US Supreme Court granted cert in US v. Tsarnaev.  Because the cert grant does not specify a particular question presented, I assume both of the questions presented flgged by the government will be before the Justices.

Of course, the new Biden Administration is purportedly opposed to the death penalty based on statements by then-candidate Joe Biden before his election.  (I do not believe Prez Biden has spoken to this matter directly and he had a history of supporting the death penalty in the past.)  Notably, the Biden Administration did not seek to withdraw the cert petition in Tsarnaev, and it will now be very interesting to see how it plans to move forward with this case now that cert has been granted.  

A few prior recent related posts:

March 22, 2021 at 09:45 AM | Permalink


And of course, then-PADAG Merrick Garland formerly oversaw the McVeigh case, which also involved a terrorist (albeit domestic, not religious fundamentalist) bombing, and which also raised venue issues (but where the request was granted). So it seems quite fitting he’s involved with this case now as AG.

Posted by: hardreaders | Mar 22, 2021 4:09:44 PM

It's hard to see how this case is worth the Court's time, other than the fact it plays such a large role in our collective history. But that's not a listed reason to grant cert. Rule 10 (not listing, inter alia, pet projects of the pro-death penalty set as a reason to grant review). Might there be not only the written rules, but also the unwritten ones?

Posted by: John | Mar 22, 2021 9:30:33 PM

Anyone who believes that the Supreme Court is rule-bound is quite naive. The Court is just nine political appointees with individual preferences who dress their preferences up with legal trappings (or don't bother to, as the case may be). It happens that the current Court (perhaps like Americans at large) loves the death penalty and hates Muslims. Hence the grant. It's not rocket science.

Posted by: rjb | Mar 22, 2021 9:47:42 PM

John, with all due respect, the question of the proper scope of voir dire on pre-trial publicity is a recurring issue around the country. See the currently pending Chauvin case in Minnesota. While Tsaernev is arising under the First Circuit's "supervisory authority" over its district courts, the Supreme Court has supervisory authority over all of the district courts. So clarifying the type of voir dire that should be asked in high publicity cases is a significant issue.

Similarly, the degree to which alleged "unrelated" crimes committed by the codefendant is proper sentencing mitigation evidence is a recurring issue in every case in which there are codefendants (not just capital cases). Getting some guidance on the limits of such evidence would be useful.

Posted by: tmm | Mar 23, 2021 12:41:57 PM

tmm, did you ever see that 70s UK horror movie about pagans engaging in human sacrifice? Well, you've constructed a strawman of similarly massive proportions. (BTW, I actually did see the movie and it's campy AF.)

The actual QPs—left 100% intact by the Court w/o any rephrasing—are not about addressing some "recurring issues" that abound throughout both federal and state courts. They are instead quite clearly limited to the alleged errors made by CA1 in this particular case. So John is totally correct.

The gov't even admits as much in its petition on page 15. It concedes that "the court of appeals’ errors are largely case-specific[.]" The only reasons it gives are: (1) "the context of th[e] case makes the[] [errors] exceptionally significant"; (2) the case involves "profound stakes"; and (3) it is a "landmark case" that must be put "back on track toward its just conclusion". But again, John rightly notes that none of those are valid reasons for granting cert. They just invite the Court to swing the outcome of the case because it's so high profile and involves both terrorism and the DP.

Posted by: hardreaders | Mar 23, 2021 1:39:50 PM

FWIW, noted death penalty proponent, Bill Otis, seems to be on team "they did this to promote the death penalty." I'll spare you his entire blog post, but he concludes that the Court took the case, not because of some frequently recurring issue, but to "send a message" that it is pro death penalty.

Posted by: John | Mar 24, 2021 12:44:38 AM

John, but you forgot to mention that Otis is only a longtime criminal law expert who also has professional experience in the appellate section of the DOJ that specifically included evaluating cert petitions. In contrast, tmm is a bona fide anonymous interwebs commenter (err, ok, so am I, but anyway...). So I think it's clear who can speak authoritatively on this issue.

Posted by: hardreaders | Mar 24, 2021 1:20:20 AM

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