Tsarnaev death penalty appeals are 'not remotely over' says former judge

In a 6-3 vote Friday, the U.S. Supreme Court reinstated the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev.

Retired Massachusetts U.S. District Judge Nancy Gertner said on Boston Public Radio Friday that this ruling is not definitive. “This is not over, this round is over but this [case] is not remotely over,” Gertner said. The ruling supports the Biden administration’s decision to execute Tsarnaev..

The 1st Circuit Court of Appeals in Boston threw out the death penalty for Tsarnaev in 2020, finding that the trial judge did not include evidence potentially showing that Tsarnaev was under the influence of his older brother and possibly less responsible. The court also said the judge did not sufficiently question the jurors about their news consumption of the bombing.

The Supreme Court’s ruling Friday addresses those issues, but the case will now return to the Circuit Court of Appeals to litigate other problems, such as jurors lying about posting on social media about the case.

Massachusetts U.S. Attorney Rachael Rollins affirmed in February that if U.S. Attorney General Merrick Garland chooses to seek the death penalty, her office would have to follow.

Gertner said the legal world was surprised that the Supreme Court took up the case, and that Friday’s ruling was expected. “Everyone was shocked that the Supreme Court took this case,” she said. “This was … hardly the kind of legal or issue or principle issue of national importance that you would expect the Supreme Court to take.”

“When they took it, we all knew what the outcome would be,” Gertner added. All three liberal justices dissented from the ruling.

The recent rulings connected with the Boston Marathon bombing case do not question Tsarnaev’s guilt, but rather if the death penalty is warranted.

Gertner said the fact that a case like this will take a long time to reach a final decision is a good thing. “The appeals process is precisely because we appropriately say that death is different,” Gertner said. "There will be rounds [of appeals] after this, there always are, and that's how it should be."

A prolonged appeals process means that victims seeking closure will have to wait further. “The case is not going to be over for a while," Gertner said, "there will not be quote ‘closure’ for the victims for many, many, many years.”