Bloomberg Law
March 4, 2022, 4:34 PM

Supreme Court Reinstates Marathon Bomber’s Death Sentence (1)

Greg Stohr
Greg Stohr
Bloomberg News

A divided U.S. Supreme Court reinstated the death sentence for Dzhokhar Tsarnaev, the man who set off one of the bombs that killed three people at the 2013 Boston Marathon.

The justices, voting 6-3, said Friday that Tsarnaev got a fair trial even though a judge limited questioning of prospective jurors about pretrial media coverage. The court also backed the judge’s decision to bar evidence involving a previous crime that Tsarnaev says showed he was acting under his brother’s influence.

“Dzhokhar Tsarnaev committed heinous crimes,” Justice Clarence Thomas wrote for the court. “The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

The court’s three liberals -- Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor -- dissented. They said the judge should have admitted the disputed evidence.

The ruling doesn’t mean Tsarnaev will be executed anytime soon. Although President Joe Biden’s administration urged the court to reinstate the sentence, Biden opposes capital punishment and Attorney General Merrick Garland has placed a moratorium on federal executions.

Tsarnaev could press further appeals lasting beyond Biden’s tenure, potentially putting the decision whether to execute him into the hands of a future administration.

Tsarnaev, who was 19 at the time of the bombing, didn’t contest his guilt and instead sought to persuade jurors to sentence him to life in prison. Tsarnaev said he was acting under the radicalizing leadership of his older brother, Tamerlan, who set off the other bomb at the marathon’s finish line. Tamerlan died when he was run over by a car driven by his brother during a shootout with police.

‘Confusing’ Evidence

Tsarnaev’s lawyers said he should have been allowed to introduce evidence that Tamerlan previously robbed and murdered a close friend and two others as an act of jihad in 2011.

The Justice Department said that evidence was unreliable because it came from a second suspect who pinned the murders on Tamerlan before dying in a shootout with police. U.S. District Judge George O’Toole said the jury would have no way of knowing which man carried out the 2011 killings.

Thomas said the evidence “risked producing a confusing mini-trial where the only witnesses who knew the truth were dead.”

In dissent, Breyer said the 2011 killings “supported Dzhokhar’s theory that Tamerlan’s violent and radicalizing influence induced all of the actions Dzhokhar took in connection with the Boston Marathon bombings.”

Breyer added that “it would have taken only one juror’s change of mind to have produced a sentence other than death, even if a severe one.”

Breyer, who is retiring at the end of the Supreme Court’s term, has said the death penalty is probably unconstitutional.

“I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty,” he said Friday. “This case provides just one more example of some of those problems.”

Sotomayor and Kagan didn’t join that part of Breyer’s opinion.

Media Coverage

Tsarnaev’s lawyers also contended that O’Toole didn’t do enough to ensure jurors weren’t tainted by the extensive media coverage of the bombing. Tsarnaev’s lawyers said each juror should have been asked a series of open-ended questions about what they remembered hearing about the case.

Thomas said the district court’s rejecting of that request “was reasonable and well within its discretion.”

The Justice Department said the 21 days of questioning -- a process known as voir dire -- were sufficient to ensure an impartial jury.

The bombing at the marathon finish line killed Krystle Campbell, 29; Lingzi Lu, 23; and Martin Richard, 8, and injured hundreds more.

The decision is unlikely to prove popular in Boston. Local pollster Steve Koczela tweeted that a 2015 survey found only about one-quarter of people supported the death penalty for Tsarnaev, while 61% preferred life in prison.

The case is United States v. Tsarnaev, 20-443.

(Updates to add poll on death sentence in 20th paragraph. A previous version corrected reference to Kagan joining Breyer’s comments on death penalty’s constitutionality.)

--With assistance from Carey Goldberg.

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Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Tony Czuczka

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