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Law & the Courts

Will Supremes Really Hear Tsarnaev Death-Penalty Case?

On Monday, the Supreme Court granted review on the Justice Department’s appeal of a First Circuit panel’s vacating the death sentence imposed on Dzhokhar Tsarnaev, the convicted Boston Marathon bomber.

It remains to be seen whether the Biden administration will see the case through. If it were to withdraw the appeal, that would moot the case.

I wrote about the appellate panel’s ruling back after it was issued last July:

The upshot of the ruling … is that the trial judge failed to ensure that the Boston jury could be fair and impartial in light of all the prejudicial pretrial publicity. There is a strong suggestion that the trial judge should have granted a change of venue. This seems utterly unpersuasive to me. To start with, if there is grave doubt that Tsarnaev got a fair trial under the circumstances, then why does the court leave the bulk of his convictions undisturbed?

… [T]he court takes pains to assure everyone that Tsarnaev “will remain confined to prison for the rest of his life.” The only remaining questions are whether the government will choose to re-try the death penalty phase of the case, and whether a new jury will unanimously vote for a capital sentence in a proceeding that the reviewing court — someday, years from now — decides passes its evolving standards of fairness.

Why? If the jury was inflamed by unfair prejudice from the start, then why does the court believe Tsarnaev’s convictions should stand? That a minimum sentence of life imprisonment must stand? That only the death penalty must be revisited?

While the justices have agreed to consider the case, they have been in no hurry to add it to their docket. And again, who knows if they will actually have occasion to hear it? At SCOTUSblog, Amy Howe explains:

The Department of Justice went to the Supreme Court last October, asking the justices to review the 1st Circuit’s ruling. Although the briefing in the case was complete by late December, with the DOJ having expressly tried to ensure that the case could be briefed and argued during the 2020-21 term, the justices considered the case at seven consecutive conferences before finally granting the DOJ’s petition on Monday. During that time, the Trump administration was succeeded by the administration of President Joe Biden, who is reportedly considering an end to the federal death penalty.

I’m betting Attorney General Merrick Garland will drop the appeal, quietly, at some opportune point. We shall see . . .


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