Supreme Court to weigh Tsarnaev sentence
Boston Marathon bomber sentenced to death in ’15
WASHINGTON – Liz Norden has never seen herself as a proponent of an eyefor-an-eye system of justice, but she also never anticipated the pain her family would endure at the hands of a convicted killer determined to hurt as many people as possible.
And that is why Norden, the mother of two sons who lost legs in the 2013 Boston Marathon bombing, has become a vocal supporter of the death penalty for convicted bomber Dzhokhar Tsarnaev. Norden said she hopes such a sentence might prevent another family from having to experience what hers went through.
“I watch my sons put their legs on every single day. I have vivid memories of my son calling me that day and telling me how bad he was hurt,” said Norden, who runs a foundation that helps people pay for prosthetic limbs. “If this case does not warrant the death penalty, what would?”
Eight years after the bombing that killed three people and injured more than 260, the Supreme Court will hear arguments Wednesday on the government’s request to reinstate the death penalty for Tsarnaev. The divisive case has revived a debate over executions and tested President Joe Biden’s opposition to capital punishment.
Tsarnaev, 28, was convicted of dozens of crimes in the attack and received a death sentence in 2015. But the U.S. Court of Appeals for the 1st Circuit threw out that sentence last year, ruling that a lower court judge failed to ensure a fair jury given the wall-to-wall media coverage of the bombing and manhunt.
Another question for the Supreme Court: whether the trial court erred when it excluded evidence that Tsarnaev’s brother, Tamerlan Tsarnaev, was implicated in a triple killing years before the bombing. Dzhokhar Tsarnaev’s lawyers wanted to include the evidence to cast his brother as a repeat killer and the true mastermind of the marathon attack.
Tamerlan Tsarnaev was killed in a shootout with police in a Boston suburb after the bombing. Dzhokhar Tsarnaev is being held at supermax prison in Colorado and will serve his life in prison even if his death sentence is overturned.
Some of the victims and their families, such as Norden, have publicly supported the death sentence. Others say that continuing the years-old litigation has prolonged their suffering and has unnecessarily kept Tsarnaev’s name in the news.
“The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives,” Bill and Denise Richard, whose 8-year-old son was killed in the bombing, wrote in a letter to the Boston Globe in 2015. “We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”
Several polls in 2015, found a majority of Massachusetts residents supported a life sentence for Tsarnaev.
In addition to the bombing itself, the Tsarnaev brothers shot and killed Massachusetts Institute of Technology Police Officer Sean Collier. Boston Police Officer Dennis Simmonds died a year after he was wounded in the shootout with the bombers.
Andrew Lelling, the former lead federal prosecutor in Massachusetts who was involved in the decision to appeal to the Supreme Court last year, said some victims supported the death penalty from the beginning and others were opposed. There is also a growing group in the middle, he said, “that just wants the case to go away.”
“They don’t want to see this guy’s name anymore in the press. They don’t want him to get the benefit of that publicity,” Lelling said. “You have fears (from some) of having to go through this again. A lot of people in Boston just don’t want to do that.”
That raises a thorny question for the Biden administration: What will happen if the Supreme Court upholds the appeals court’s decision?
The Trump administration, which restarted federal executions and carried out 13 of them during its final months, told the Supreme Court it would seek the death penalty again if a majority of the justices threw out the sentence. Retrying Tsarnaev’s sentencing phase, the Justice Department said, would force victims of the bombing back onto the stand and would put Boston through yet another trial.
While President Donald Trump was an outspoken supporter of the death penalty, Biden’s administration has indicated “great” concern about how it is carried out, and the Justice Department placed a moratorium on executions in July. Biden’s Justice Department, which has continued to support Tsarnaev’s execution, would have to decide whether to pursue a new sentencing phase if the high court upholds the 1st Circuit.
“If the Supreme Court upholds the 1st Circuit – and that’s a big ‘if,’ by the way – that’s where I think the politics of the death penalty might come into play,” said Robert Bloom, a Boston College Law School professor.
Conservative justices, who have a 6-3 advantage on the court, declined to stop several federal executions that had been challenged through emergency appeals.
The high court will hear arguments in another death penalty case next month centered on an inmate in Texas who asked that his preacher be permitted to hold his hand in the execution chamber. Texas has argued that permitting such interaction would interfere with the safety of the execution itself.
Legal experts predict the Tsarnaev case will offer little precedent for lower courts to follow because the circumstances are so unusual. Tsarnaev’s lawyers wanted to ask potential jurors specific questions about the proliferation of media content they had consumed, such as what they had “read, seen, heard, or experienced” about the attack. Instead, the trial court permitted a more general question about whether jurors had formed an opinion based on the media coverage and whether they could set it aside.
Tsarnaev’s attorneys told the Supreme Court in a brief late last year that the appeals court was correct to flag the trial court’s decision to block evidence of Tamerlan Tsarnaev’s potential involvement in other crimes. That evidence, the attorneys said, “went to the heart of respondent’s mitigation case because it showed Tamerlan’s planning of extreme violence and his ability to influence others to join him in those acts.”