‘This case is far from over,’ legal analyst says of Tsarnaev death sentence

The U.S. Supreme Court is reinstating the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev after his sentence was overturned on appeal. Daniel Medwed, Northeastern Law professor and GBH News legal analyst, joined hosts Paris Alston and Jeremy Siegel on Morning Edition to talk about the high court's decision last week and its implications for both Tsarnaev and capital punishment more generally. This transcript has been edited for clarity and length.

Paris Alston: Daniel, first of all, let's begin with a summary of the rather complicated litigation in this case. What has happened in court since Tsarnaev was convicted and sentenced to death in 2015?

Daniel Medwed: A lot has happened. So after he was sentenced back in 2015, the defense team began working on what's called the direct appeal. That's when the defense directly challenges the proceedings below, and cites claims of error by the prosecution and the judge at trial. That process took five years to complete, and it culminated in the filing of a brief and oral arguments in the First Circuit Court of Appeals right here in Boston. A panel of judges issued its decision in July 2020, in which it reversed the death sentence on two grounds.

The first was on the basis that the trial judge allegedly had not engaged in a sufficiently robust jury selection process. [It claimed that] the trial judge should have asked more questions about the media consumption of prospective jurors, and the extent to which they had read about the Boston Marathon bombing case in advance. And second was that the trial judge made a mistake when he excluded evidence about Dzhokhar Tsarnaev's older brother, Tamerlan's alleged involvement in a triple homicide in Waltham. The defense was trying to create a picture in which Tamerlan was the domineering, violent force in their relationship, and allegedly they got cut off at the pass when the judge didn't allow them to develop that argument about the Waltham slaying. The Trump Administration then responded in July 2020 by seeking review of this First Circuit decision in the U.S. Supreme Court. The U.S. Supreme Court took the bait, and that's what led to last week's decision.

Jeremy Siegel: So now the Supreme Court is reversing the First Circuit's decision here. Were you surprised by this?

Medwed: Not necessarily. I think a lot of us, in looking at this case, thought that given the ideological makeup of the Supreme Court, they'd probably find a way to reinstate the death sentence. And in fact, this split decision here broke down clearly along political fault lines. The six more conservative justices in the majority voted to reverse the First Circuit and reinstate the death sentence, and the three more liberal-leaning justices — Breyer, Kagan and Sotomayor — voted in dissent.

Alston: Daniel, what does this outcome mean for the death penalty going forward? Because public opinion, even on this case and on the death penalty more generally, has shifted back and forth over the years. Is this a sign that the Supreme Court may move in the direction of abolishing capital punishment anytime soon, or even cut back on where it's applied?

Medwed: So on the one hand, at least on the surface, this Supreme Court opinion doesn't seem to really be about the death penalty. The court confined its analysis essentially to those two issues being raised by the First Circuit. And in a sense, this opinion could be construed as suggesting that trial judges simply need greater autonomy in how they construct jury selection, and in how they decide whether or not to admit evidence of a third party's potentially violent nature.

However, on the other hand, when you dig beneath the surface of this opinion, it seems very much about the death penalty – that it's basically a proxy war in that larger fight over capital punishment. And I think it's probably a sign that the conservative members of the court are not going to cut back on the death penalty anytime soon, let alone abolish it.

Siegel: So what does this specific decision mean exactly for Tsarnaev? Are there any other legal remedies on his end legally, or is this the end of the road?

Medwed: Well, it is the end of the road for this particular phase, the direct appeal. But it's certainly not the end of the road for litigation. First, every criminal defendant after the exhaustion of the direct appeal has a right to file what's called a petition for habeas corpus within one year. Habeas corpus is an ancient British remedy we inherited from the folks across the pond, which asks the government to justify the detention. The phrase "habeas corpus" means "you have the body" and you're asking the state to tell us, why do you have the body behind bars? And it's a vehicle for prisoners to raise jurisdictional and constitutional issues that maybe weren't included in the direct appeal. Under federal law, you have a right to at least one habeas corpus petition.

But there are also options under certain circumstances to file second or successive habeas corpus petitions down the road. So that means that there are going to be many, many bites at the post-conviction apple in this case. Second, Tsarnaev could pursue clemency from the president. Depending on the occupant of the Oval Office down the line, he could ask for a sentence commutation to life in prison. So there are a lot of different litigation and executive branch remedies. This case is far from over.

Alston: So if none of those remedies pan out and Tsarnaev's death sentence is still in place, how long do you think the process could take before he is potentially executed? Because I have to say, I mean, we're not that far out from the 10th anniversary of the bombing. And this case, as you've illustrated, has gone back and forth so many times, and it keeps bringing up these feelings of that fateful and tragic day for Boston, for the country. So where does this go?

Medwed: It's going to be a while, Paris. So first of all, the data surrounding the length of time between a sentence and execution is growing. Back in 1984, statistics indicated it took about six years for that process to play out. On average, in 2019, it had soared to 22 years — the average time between a death sentence and execution.

In addition, I think the occupant of the Oval Office again will be a critical variable when, if ever, Tsarnaev is executed. Prior to President Trump, there had been only three federal executions from 1976 to 2020. During President Trump's last year or so, there were 13. So it really depends on who's in charge, in terms of trying to gauge whether Tsarnaev will be executed and when that might occur. But I think it's going to be a while — many, many years.