The U.S. Supreme Court will review last summer's appeals court decision, which reversed Dzhokhar Tsarnaev's death sentence and raised the prospect of a new trial based on the issue of his sentence: life in prison or the death penalty? GBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about the decision and its potential implications in other high-profile cases. The transcript below has been edited for clarity.
Joe Mathieu: So this is your wheelhouse. I wonder if, first of all, you were surprised the Supreme [Court] granted review of the case.
Daniel Medwed: Frankly, I was. For one thing, statistically, it's quite rare for the Supreme Court to hear cases — to grant a writ of certiorari, as it's called. Out of 7,000 to 8,000 cert petitions filed each year, the Supreme Court usually accepts only about 80, and fewer and fewer of them are criminal law cases, at least over the last ten years. Now, the odds are a little bit better when it's the government, not the defendant, seeking review, as was the case here. But still, it's a long shot. For another thing, the legal issues in the Tsarnaev case don't strike me as the typical ones that tickle the fancy of the Supreme Court. Usually, the court's interested in cases where there's a split in the law, the lower courts are divided or where the underlying issue has widespread ramifications across the country, like abortion or same-sex marriage. This First Circuit decision was really about the application of facts to reasonably well-settled First Circuit precedent about what should be done in jury selection in a high profile case and when mitigating evidence will come in in a death penalty matter. So I wasn't expecting it, I'll admit it.
Mathieu: What do you think, then? Does that mean the court is interested in reinstating the death sentence or it's just such a high profile case they felt the need to tackle this?
Medwed: Yeah, it's so hard to say because the court is very cryptic when it grants cert like this. It seldom states the reasons or even identifies the names of the justices who were intrigued by the case. We do know that there's broad support for looking at it because at a minimum, it takes four justices to vote in favor in order for a cert petition to be granted review. But I doubt it's about the desirability of the death penalty in general or even in the context of this case. My hunch is that some judges just had misgivings about the First Circuit opinion for whatever reason, or maybe they just wanted to take a closer look at one of the legal issues, probably that jury selection issue. To what extent must a trial judge jump through certain hoops in these notorious cases to create a fair and impartial jury?
Mathieu: If the court reversed the first court decision here, Daniel, what would be the actual effect? Does that mean Tsarnaev then is likely to be executed?
Medwed: Well, if the trial outcome is reinstated, yes, that would mean that the death sentence is back on the books. But we are a long way from the execution chamber because Tsarnaev would have other post conviction remedies available to him. For instance, after the conclusion of the direct appeal — the end of the Supreme Court review — he would have a full year in which to file what's called a request for habeas corpus. He could go back to federal court and file another challenge. Also, he could go to the Biden administration and seek clemency. He could ask Biden to commute his sentence to life in prison, which is not as far fetched as it may sound because both Biden and Attorney General Merrick Garland have recently gone on the record expressing concerns about inequities in the federal death penalty process.
Mathieu: So how about the implications for other high profile cases, Daniel? Derek Chauvin's trial in Minneapolis for killing George Floyd, for instance?
Medwed: This decision could have wide-ranging ripple effects depending on the precise nature of the opinion. If the Supreme Court reverses the First Circuit decision, reinstates the death sentence and elaborates on what must be done in jury selection in a high profile case, I think that's a message that would be heard loud and clear across the country, and certainly in Minneapolis. But I also just want to emphasize that no matter what happens, Tsarnaev is going to die in prison. It's just a question of whether he dies of natural causes or by execution because this case is just about the sentence.
