Life-or-death decision

Supremes to rule whether to reimpose capital punishment vs. Tsarnaev

The death penalty may be back on the table for convicted Boston Marathon bomber Dzhokhar Tsarnaev as several of the Supreme Court’s conservative justices seemed to indicate during questioning that an appeals court was wrong to throw it out.

In more than 90 minutes of arguments, the court’s six conservative justices appeared to embrace the Biden administration’s position that an appeals court judge wrongly threw out Tsarnaev’s death sentence for his role in the bombing that killed three people and injured 264 near the finish line of the 2013 marathon and subsequent murder of an MIT police officer days later.

The appeals court ruled that a federal trial judge improperly limited questioning of prospective jurors about the pretrial media they were exposed to. The panel also said the judge should have allowed evidence involving a previous crime that Tsarnaev says showed he was acting under the influence of his older brother, Tamerlan.

Justice Clarence Thomas said the Supreme Court has previously given federal trial judges “quite a bit of discretion at the jury-selection stage.”

Justice Samuel Alito questioned the usefulness of the evidence about the other crime, suggesting that judges shouldn’t be required to hold “mini-trials” about extraneous matters in death penalty proceedings.

The court’s three liberal justices appeared more favorable to Tsarnaev, now 28. If the appellate ruling were affirmed, he would have to face a new sentencing trial should the administration continue pressing for a death sentence

Justice Amy Coney Barrett was the only member of the high court to raise the disconnect between the Biden administration’s pursuit of the death penalty for Tsarnaev at the same time it has placed a halt on federal executions.

President Biden also has called for an end to the federal death penalty.

Barrett wondered what the “government’s end game” was, noting that if the administration wins the case, Tsarnaev would be “living under a death sentence the government doesn’t intend to carry out.”

The 1st U.S. Circuit Court of Appeals in Boston ruled last year that the trial judge improperly excluded evidence that could have shown Tsarnaev was deeply influenced by his older brother, Tamerlan, and was somehow less responsible for the carnage.

Tsarnaev’s guilt in the deaths of Lingzi Lu, a 23year-old Boston University graduate student from China; Krystle Campbell, a 29year-old restaurant manager from Medford; 8-year-old Martin Richard of Dorchester and MIT Officer Sean Collier, 27, is not at issue, only whether he should be sentenced to life in prison or to death.

Tsarnaev’s lawyer, Ginger Anders, 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.

She said the crime showed that Tamerlan was “irrevocably committed” to jihad.

“That evidence was central to the mitigation case,” Anders argued. Its exclusion “distorted the penalty phase.”

Justice Department lawyer Eric Feigin said that evidence was “very unreliable” because it came from a second suspect, Ibragim Todashev, who pinned the murders on Tamerlan before dying in a shootout with police.

“We don’t know what happened. Todashev had all the motive in the world to point the finger at the dead guy,” Justice Brett Kavanaugh said.

The Supreme Court’s decision is expected by summer.

File pHOTO cOurTesy Of bOsTOndefender.Org , AbOve; bOb leOnArd / Ap file, belOw GUILT ESTABLISHED: Marathon bomber Dzhokhar Tsarnaev is seen in his cell at the Colorado Supermax prison. Below, Tsarnaev, in white cap, and his brother, Tamerlan, in black cap, are seen near the 2013 marathon finish line before the bombs detonated.