Will The Supreme Court Reinstate A Death Sentence For Boston Marathon Bomber?

Last year, the First Circuit Court of Appeals in Boston overturned the death sentence of convicted Boston Marathon bomber Dzhokhar Tsarnaev. The U.S. Supreme Court decided to review that decision, and oral arguments are scheduled for tomorrow in Washington. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined host Sean Corcoran on Morning Edition to discuss.

Sean Corcoran: Before we get into the weeds, what’s the significance of this case as a practical matter? Is there a chance Tsarnaev will be released?

Daniel Medwed: No. He stands convicted of more than 20 convictions that have life sentences. The only issue is whether the death sentence imposed after his 2015 trial is appropriate. The First Circuit said he should get a new trial just on that issue of life versus death, and the Supreme Court is evaluating that decision. He will die behind bars — the only question is whether that will be due to execution.

Corcoran: Why did the Supreme Court decide to review the case? My understanding is the Court takes very few. Because it’s so high-profile? Or because it involves the death penalty?

Medwed: It’s hard to say. On the one hand, it’s true that the Court agrees to hear only a handful of cases each term, usually 60-80 out of 7,000-8,000 requests, and four of the nine justices must express interest in order for a case to be heard. It’s called the issuance of a writ of certiorari, popularly known as granting “cert.”

On the other hand, whether a case is well-known has little to do with its odds of being reviewed. By the Court’s own rules, it tends to look either first at cases where the legal issues are matters of general national significance, like the right to abortion, or second, where there’s a split in the lower courts regarding a question of law. In the Tsarnaev case, I doubt the first prong applies because neither his lawyers nor the prosecutors have framed his case as a referendum on the constitutionality of the death penalty. My hunch is that it’s the second prong — the Court is interested in weighing in on a discrete area of law where courts are all over the map, namely, how to conduct jury selection in highly-publicized cases.

Corcoran: Daniel, you just mentioned that you think the Supreme Court took this case to clarify the law surrounding jury selection. What happened in Tsarnaev’s jury selection that was so problematic?

Medwed: Well, because of all the pretrial publicity in the case, the defense lawyers for Tsarnaev asked for very specific questions during "voir dire" — that's the process of choosing jurors. The judge allowed the defense to ask a series of content-specific questions: “Juror A: Have you heard about this case? What have you read about this case?” But the judge, George O’Toole, didn’t allow the defense lawyers to go as far as they’d like. The judge was worried about going into too much detail, too much depth about what the jurors had actually read, especially in the context of social media.

The First Circuit court of appeals said that was a problem — that the defense should have received more latitude to delve into each juror’s familiarity with the case. The appeals court cited some other problems — issues related to whether evidence about Tamerlan Tsarnaev’s involvement in a homicide in Waltham should have been presented to the jury. But I suspect the real issue that intrigued the Supreme Court related to jury selection.

Corcoran: Ok, so let’s assume the Supreme Court agrees with the First Circuit that Tsarnev didn’t receive a fair trial. Does that mean he will have another trial here in Boston?

Medwed: It depends. Capital cases have two phases at trial. There's the guilt phase, which concerns whether prosecutors can prove beyond a reasonable doubt that the defendant committed the crimes and which really wasn't too significant in the Tsarnaev case because he essentially admitted his culpability. Next there’s the sentencing phase, which explores the appropriate punishment, basically life in prison versus death.

If the Supreme Court affirms, federal prosecutors — the U.S. Attorney’s Office — will have to decide whether to retry just that sentencing phase. And that’s a politically and emotionally fraught decision for the Biden decision to make. My hope, frankly, is that prosecutors would waive their right to retry him and that he just spends the rest of his life in a supermax prison in Florence, Colorado.