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Marathon Bomber Supreme Court Review Puts Biden in Hot Seat (2)

March 22, 2021, 1:35 PM; Updated: March 22, 2021, 7:27 PM

Boston Marathon bomber Dzhokhar Tsarnaev’s vacated death sentences could be reinstated, now that the Supreme Court has agreed to scrutinize the appeals court ruling in his favor.

The high court’s move to grant review on Monday of the Justice Department’s petition potentially puts the Biden administration in an awkward position, given the president’s campaign promise to eliminate the death penalty.

The Justice Department under former President Donald Trump challenged the appeals court ruling that said the district court failed to properly probe whether jurors were too swayed by pretrial publicity.

“The decision below improperly vacated the capital sentences recommended by the jury and imposed by the district court in one of the most important terrorism prosecutions in our Nation’s history,” the Justice Department said in its petition filed Oct. 6.

The case won’t be argued until next term, which begins in October, though briefs due ahead of the argument and other court filings could signal whether the department under Biden will stay the course or shift its position in line with the president’s claimed anti-capital punishment stance.

Tsarnaev was tried and sentenced in 2015 when Biden was vice president under Barack Obama. Biden supported capital punishment as a senator.

White House Press Secretary Jen Psaki told reporters on Monday that she didn’t have any updates on death penalty policy moving forward, and that she refers inquires about Tsarnaev’s case to the Justice Department, which declined to comment.

Psaki did say, however, that Biden “has grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness.”

She added that Biden has “also expressed his horror at the events of that day” and Tsarnaev’s actions. “As vice president, he spoke to the people of Boston on the one-year anniversary of the horrible crime. As he said then, ‘We are Boston. We are America. We own the finish line.’”

Though DOJ’s petition was pending for months, Monday’s grant followed the March 10 confirmation of Attorney General Merrick Garland. The justices may have waited to see if the department would withdraw its appeal once Garland was in place.

Garland, most recently a federal appeals court judge in Washington, oversaw the government’s investigation and prosecution of the 1995 Oklahoma City bombing while with the Justice Department. Timothy McVeigh was executed for the bombing in 2001.

During his attorney general confirmation hearing, Garland expressed skepticism over the death penalty, though he’s yet to take public action against it, at least in this appeal. DOJ could still change positions in Tsarnaev’s case, as it has in others since Biden’s election.

If the justices uphold the appeals court ruling, then Biden and Garland could be confronted with whether to move forward with another sentencing proceeding.

The government under Trump said another sentencing trial would mean the victims would again have to describe the horrors inflicted on them in the 2013 Boston bombing.

Anti-death penalty advocates have been calling on Biden to commute the sentences of death-row prisoners, to avoid a scenario like the final months of the Trump administration which saw a rush of executions.

Tsarnaev will likely die in prison either way. The U.S. Court of Appeals for the First Circuit only upended his death sentences, leaving his life sentences intact for his role in the bombing with his older brother, Tamerlan, that killed three people and injured hundreds more. The brothers also killed a Massachusetts Institute of Technology campus police officer while trying to flee the state. Tamerlan died after a violent confrontation with police.

In addition to the pretrial publicity issue, DOJ’s petition asks the justices to scrutinize the appeals court’s ruling that the district court wrongly excluded evidence at the sentencing trial, of Tamerlan’s alleged involvement in other crimes two years before the bombing.

Opposing high court review, Tsarnaev’s lawyers conceded that “the Boston Marathon bombing was a grievous act of terrorism that has had a severe impact on its victims.” But they said the legal issue didn’t warrant Supreme Court review, and that the court doesn’t review cases “based on the nature of the underlying crime.”

The case is United States v. Tsarnaev, U.S., No. 20-443.

(Adds Press Secretary Psaki comments. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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