The 125th running of the Boston Marathon was two days ago. Today at 10:00 AM EDT, the United States Supreme Court will hear argument in the government's appeal to reinstate the death penalty for Boston Marathon Bomber Dzhokhar Tsarnaev. See United States v. Tsarnaev, No. 20-433 (Oct. 13, 2021) (argument). You can listen to the arugment live on the Court's website here. Briefing on the mertis is avalable here. This case is about the process of empanelling the jury that recommended Mr. Tsarnaev's death sentence in a situation where pretrial publicity was "unrivaled in American legal history."
Dzhokhar and his brother, Tamerlan, placed backpacks containing explosives in the crowds of spectators near the finish line of the marathon in 2013. Three people were killed and hundreds of others were seriously injured. The bombings and manhunt garned global media attention and resulted in a citywide "shelter-in-place" lockdown. A few days days after the bombings, the Tsarnaev brothers shot a police officer at the Massachussetts Institute of Technology. During the pursuit that followed, Dzhokhar ran over his brother with an SUV, killing him. During his federal trial, the defense acknkowledged Dzhokhar's invovlement but argued he was influenced by his older brother. During the jury-selection process, defense counsel sought to ask each juror content questions, both in the jury questionnaire and during voir dire. But the government objected, even though it initially proposed content questions as part of the parties’ joint questionnaire. The district court sustained the objection and declined to engage in any content questioning. Dzhokhar was convicted and sentenced to death for his role in the bombings.
Last year, the First Circuit Court of Appeals affirmed Mr. Tsarnaev's convictions and life sentences but threw out his death sentence, ruling against the govenrment on two separate grounds. First, it held, the district court should have asked potential jurors what media coverage they had seen or heard about Tsarnaev’s case. Second, it concluded, the district court should not have excluded from the sentencing phase evidence that Tamerlan was involved in a separate, unsolved triple murder in Massachusetts in 2011. That evidence, the court of appeals reasoned, was “highly probative of Tamerlan’s ability to influence” his brother.
The Court will consider the following questions presented:
(1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.