In more than 90 minutes of argument, the six conservative court justices seemed likely to accept the Biden administration’s argument that a federal appeals court mistakenly overturned Tsarnaev’s death sentence for his role in the bombing that killed three. people near the finish line of the marathon in 2013.
The first U.S. Circuit Court of Appeals in Boston ruled last year that the trial judge improperly excluded evidence that could have shown that Tsarnaev was deeply influenced by his older brother, Tamerlan, and was somehow less responsible for the Butcher shop.
The appeals court also blamed the judge for not sufficiently questioning jurors about their exposure to extensive news coverage of the bombing.
The three liberal court judges seemed more favorable to Tsarnaev. If the appeal ruling is upheld, Tsarnaev would face a new sentencing trial if the administration decided to continue pushing for a death sentence.
Tsarnaev’s guilt for the death of Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford, Massachusetts; and eight-year-old Martin Richard of Boston is not in question, only whether he should be sentenced to life in prison or to death.
Judge Amy Coney Barrett was the only member of the court to raise seeking the administration of a capital sentence for Tsarnaev even as he has stopped federal executions.
US President Joe Biden has also called for an end to the federal death penalty.
Judge Barrett wondered about the “end of the government game”, noting that if the administration wins the case, Tsarnaev would be “living under a death sentence that the government does not intend to carry out.”
The focus was primarily on the evidence implicating Tamerlan Tsarnaev in a triple murder in the Boston suburb of Waltham on the 10th anniversary of the terrorist attacks of September 11, 2001.
The evidence reinforced the defense team’s theory that “Tamerlan influenced Dzhokhar, Tamerlan indoctrinated Dzhokhar, and Dzhokhar became radicalized because of Tamerlan,” attorney Ginger Anders told the judges.
But the trial judge agreed with prosecutors that the evidence linking Tamerlan to the Waltham killings was unreliable, irrelevant to Dzhokhar’s involvement in the marathon attack, and would only confuse jurors.
Judge Elena Kagan said the jurors should have been able to decide whether the evidence was reliable. “That is the role of the jury,” Kagan said.
But Judge Brett Kavanaugh was one of several conservative judges who suggested that the judge had good reason to hide the account of the Waltham killings from the jury because both Tamerlan Tsarnaev and Ibragim Todoshev, who implicated him, were dead at the time of the trial.
Inside America’s Chambers of Death
“We don’t know what happened. Todoshev had every reason in the world to point the finger at the dead man,” Judge Kavanaugh said.
Tamerlan Tsarnaev, 26, had been in a shootout with police and was run over by his brother while on the run, hours before police captured Dzhokhar Tsarnaev, bloodied and wounded, in the Boston suburb of Watertown.
Todoshev was interviewed by researchers after the marathon. He told authorities that Tamerlan recruited him to rob the three men, and that they tied them up with duct tape before Tamerlan cut their throats to avoid leaving witnesses.
In a bizarre twist, while Todoshev was being questioned in Florida, he was shot and killed after authorities said he attacked officers. The agent who killed Todoshev was acquitted of any crime.
Prosecutors found Todoshev’s statement reliable enough to request and obtain a search warrant for Tamerlan’s car looking for blood, DNA and other evidence relevant to the triple murder.
If the statement was enough for a search warrant, “isn’t it enough to get into a death case?” Judge Stephen Breyer asked.
Justice Department attorney Eric Feigin responded that different standards apply and that by requesting a search warrant, federal agents were not saying that every word of what Todoshev said was true.
Feigin tried to point out to the court that Tsarnaev admitted responsibility for the bombing and his deadly actions captured on camera near the finish line of the marathon, including placing a backpack with a shrapnel behind a group of children.
When jurors weighed that evidence and sentenced Tsarnaev to death, “the appeals court should have left that verdict standing,” Feigin said.
Tsarnaev, now 28, was convicted of all 30 counts against him, including conspiracy and use of a weapon of mass destruction and the murder of Massachusetts Institute of Technology police officer Sean Collier during the attempt. escape of the Tsarnaev brothers. The appeals court upheld all but some of his convictions.