Supreme Court considers reimposing death sentence for Boston Marathon bomber

WASHINGTON — The Supreme Court takes up one of the higher-profile cases of the term Wednesday, considering whether to reimpose the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev after a federal appeals court voided it.

Although Attorney General Merrick Garland has ordered a moratorium on executions in the federal system, the Justice Department under President Joe Biden is nonetheless taking the same position that it did under the Trump administration, defending the death sentence for Tsarnaev.

Tsarnaev was convicted of joining his older brother, Tamerlan, in planting two homemade pressure-cooker bombs near the marathon finish line in 2013 that killed three people and injured hundreds more, many of them seriously. Tamerlan, 26, died days after the bombings following a gun battle with police. Dzhokhar, then 19, was later found hiding in a boat parked in a backyard.

In a separate phase of the trial, the jury recommended capital punishment for Tsarnaev.

Tsarnaev appealed the sentence, and a three-judge panel of the U.S. Court of Appeals for the 1st Circuit last year ordered a new sentencing hearing. It ruled unanimously that the trial judge failed to allow enough questioning of potential jurors about how closely they followed the extensive news coverage of the bombings.

The court also said the judge should have allowed Tsarnaev's lawyers to bring up a 2011 triple killing in the Boston area that investigators suspected was committed by Tamerlan. The defense wanted to use it to show that the younger Tsarnaev was dominated by his violent older brother, and was therefore less responsible for the bombings.

During the trial, Tsarnaev's lawyers did not deny his role in the marathon bombing. But they said he was easily manipulated by his brother, whom they called the mastermind.

Justice Department lawyers urged the Supreme Court to reverse the appeals court and let the death sentence stand, calling the case "one of the most important terrorism prosecutions in our nation's history" and describing Tsarnaev as "a radical jihadist bent on killing Americans."

Past Supreme Court rulings don't require asking prospective jurors about the specific content of the news reports they've seen or heard, the government said. Instead, the test is whether jurors can set aside their impressions or opinions and base their verdicts on the evidence presented.

And as for the 2011 triple slaying, Justice Department lawyers said allowing evidence of the older brother's alleged involvement in a separate crime, with a different alleged accomplice, in an apparent effort to get money, could be confusing and distracting to the jury.

They added that an order to hold a new sentencing hearing would further traumatize the Boston community, saying, "The victims will have to once again take the stand to describe the horrors" that Tsarnaev inflicted on them.

Massachusetts Gov. Charlie Baker, a Republican, said he supported the government's effort to reverse the lower court ruling.

"I said a long time ago that I thought Tsarnaev should face the death penalty," he said. "So I would agree with the Biden administration on that one."

Many survivors of the bombing also support the death penalty for Tsarnaev. Marc Fucarile, who lost his right leg in the attack, said of capital punishment, "It's there, and his actions call for it."

But Bill and Denise Richard, whose 8-year-old son was killed in the bombings, said despite the heinousness and brutality of the crime, they have a different view. "The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives," they wrote in a letter published in the Boston Globe in 2015.

If the court rules for the Justice Department, Tsarnaev will remain on death row at Colorado's supermax prison. If it rules for Tsarnaev, the Biden administration will have to decide whether to try again to seek the death penalty or let his sentence of life in prison on the noncapital counts stand.

Either way, he'll never get out, a point noted by the appeals court. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," Judge O. Rogeriee Thompson wrote.

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