In a 6–3 opinion written by Justice Clarence Thomas and divided along ideological lines (with Justice Stephen Breyer dissenting, joined by Justices Elena Kagan and Sonia Sotomayor), the Supreme Court reinstated the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. Dzhokhar was the younger of the two Tsarnaev brothers, the older of whom, Tamerlan, was killed by Dzhokhar while fleeing from police. The sentence had been vacated by the First Circuit, which questioned the selection of the jury and the exclusion of evidence from the death penalty phase that Dzhokhar wanted to use in order to show that his brother was the real mastermind. The Supreme Court rejected both arguments; Breyer dissented only on the second issue, and did not address the pretrial publicity question.
The Tsarnaev case is not about the guilt or innocence of Dzhokhar Tsarnaev, who did not deny his involvement in the bombings. It is also not about the morality or legality of the death penalty, which in this case was squarely authorized by federal antiterrorism law: if you believe in the death penalty, it would be hard to identify a stronger case for it than a public act of terrorism, aimed at a purely civilian public event, in service of an ongoing enemy of the American people. That said, Breyer’s dissent on the sentencing issue leans heavily on the argument that “death penalty proceedings are special,” and it is hard not to suspect that the Court’s liberals would, as they typically do, find a way to avoid voting to affirm a death sentence no matter what the law says. In fact, the implications of their argument would be a radical departure from existing law. Thomas, by contrast, noted in a footnote for the majority’s opinion that the Court had not been asked to revisit as an original matter its precedents on the process for death penalty proceedings, so he was not going to do so.
The first legal issue in the case, which is relevant in almost any sensational case of public interest, was the screening of jurors for their exposure to media coverage of the case. A free press and a fair trial are both constitutional guarantees, but the former can sometimes make the latter difficult or impossible. From Capitol rioters to Derek Chauvin to corrupt politicians to targets of the Mueller and Durham investigations, defendants in high-profile cases often complain that they are being tried in the press to poison the jury pool. The trial court refused to allow an open-ended question proposed by Dzhokhar’s attorney asking jurors to recite all the facts they already knew from media coverage. But it nonetheless conducted an extraordinarily extensive inquiry into their exposure to coverage of the terror attack on what David Ortiz memorably called “our f***ing city“:
The District Court summoned an expanded jury pool of 1,373 prospective jurors and used the 100-question juror form to cull that down to 256. The questionnaire asked prospective jurors what media sources they followed, how much they consumed, whether they had ever commented on the bombings in letters, calls, or online posts, and, most pointedly, whether any of that information had caused the prospective juror to form an opinion about Dzhokhar’s guilt or punishment. The court then subjected those 256 prospective jurors to three weeks of individualized voir dire in which the court and both parties had the opportunity to ask additional questions and probe for bias. Dzhokhar’s attorneys asked several prospective jurors what they had heard, read, or seen about the case in the media.
Thomas began by noting that the Court’s precedents require an impartial jury, not an ignorant one, and that trial judges have latitude in assessing how best to select juries – particularly given the judge’s local knowledge of the media climate. “There is no blanket constitutional requirement that it must ask each prospective juror what he heard, read, or saw about a case in the media.”
As sometimes happens in cases at the Supreme Court, the outcome on this point was more or less dictated by the Court taking the case. The First Circuit applied one of its own precedents that, it felt, imposed such a blanket rule. But “lower courts cannot create prophylactic supervisory rules that circumvent or supplement legal standards set out in decisions of this Court.” That raises an issue that animated a concurring opinion by Justice Amy Coney Barrett (joined by Justice Neil Gorsuch), and contested by Breyer: Barrett argues that the inherent power of federal courts to set rules and procedures for their own courtrooms does not create a supervisory power for appellate courts to dictate these kinds of blanket rules for district courts within their own circuits. Breyer (joined by Kagan) thinks that the power to do so is well-settled. Thomas’s opinion for the Court noted in a footnote that the Court was not weighing in on that dispute, which involves some knotty theoretical questions of great practical significance. “A court of appeals cannot supplant the district court’s broad discretion to manage voir dire by prescribing specific lines of questioning, and thereby circumvent a well-established standard of review. Whatever the ‘supervisory power’ entails, it does not countenance the Court of Appeals’ use of it.”
The justices were more divided on the exclusion of evidence that Dzhokhar wanted to use in order to support his theory that he was dominated and radicalized by his older brother, and that this should mitigate his own guilt. Dzhokhar argued that Tamerlan had been involved in an unsolved drug-related triple murder in Waltham, Massachusetts on September 11, 2011 (a noteworthy date), based on a confession given orally by an accomplice, Todashev, to the FBI. Todashev, however, had attacked the FBI agents when they gave him a pen to write his confession down, and they killed him — so, both Tamerlan and Todashev were dead by the time of the trial. Thus, the only witnesses Dzhokhar could call to support his theory would be repeating levels of hearsay, whether FBI agents who quizzed the accomplice or a friend of Dzhokhar who would say that Dzhokhar knew about Tamerlan’s involvement in the triple murder. The trial judge saw this whole line of inquiry as a confusing tangent that piled hearsay upon hearsay and would send the trial down a rabbit hole that would only confuse the jurors.
For Breyer, it was worth arguing that the exclusion of any evidence of any possible theory that might support Dzhokhar avoiding the death penalty, however tenuous, should be grounds for throwing out the death sentence. For example: “The Waltham evidence showed (if the jury believed Todashev’s account) that Tamerlan had previously exerted such influence over Todashev as to make him an unwilling accomplice to a triple murder. This is much stronger evidence of Tamerlan’s capacity to influence than any evidence that the jury heard.”
Of course, this means that the jury would be asked to assess the credibility of Todashev as a witness, which is hard to do because he was dead and had, literally, died rather than sign a confession to any of this. That means that the trial would have devolved into an entire second level of disputes about the credibility of a dead man the defendant knew through another dead man, as a means of assessing the second dead man’s character — what Thomas described as “a confusing mini-trial where the only witnesses who knew the truth were dead. . . . No one alleges that Dzhokhar participated in the Waltham murders, and . . . the evidence available sheds little light on what role (if any) Tamerlan actually played.” Thus, “Dzhokhar would first have to show, without any surviving witnesses, what role Tamerlan actually played. Then, he would have to establish that he learned of the Waltham crimes before planning the bombings. Finally, he would have to explain how his knowledge of Tamerlan’s role in a nearly two-year-old violent robbery affected his own role in the bombings. Whatever other courts might think about an inquiry into a defendant’s own prior bad acts, this District Court reasonably thought that the Waltham murder inquiry risked confusing the jury in these proceedings.”
Breyer, however, insisted on offering his own micromanaging review of how the case was tried, searching for any straw to grasp to show the relevance of all of this:
The prosecution similarly told the jury that “the bulk of [Dzhokhar’s] mitigation case comes down to a single proposition: ‘His brother made him do it.’” The prosecution also told the jury that it should reject this proposition because Dzhokhar’s mitigation evidence merely showed that Tamerlan was “loud,” “bossy,” and “sometimes lost his temper.” Would the prosecution have made the same argument had the evidence required it to add, “and perhaps slit the throats of three people”?
Yes, common sense says, the prosecutors would have made exactly that argument; framed in slightly different words, perhaps, but this is a terrorist plot, not a prank. It is not a thing a man would enter into lightly. Breyer also second-guessed the trial judge’s assessment of the risk of confusing the jury. Breyer’s arguments might not be so unreasonable coming from a trial judge in the case, but as Thomas wrote, Breyer “ignores our traditional standard for appellate review of evidentiary determinations,” in which the judge on the scene has some discretion over the management of a trial.
As the majority noted, the Court’s precedents do not impose what Breyer seemed to be asking for: a mandatory rule of admitting every piece of evidence a defendant wants, even in a death penalty case, and reversing any trial judge who ever excludes anything. If that was the rule, it would require the Court to find the federal death penalty statute itself unconstitutional to the extent that it ever excludes evidence — something Dzhokhar asked the Court to do. The Eighth Amendment, the Court concluded, requires that a defendant facing the death penalty have an opportunity to present evidence for mitigating his guilt — it does not prohibit federal and state courts from having any rules of evidence whatsoever in such proceedings. That has never been the rule, and it is not the rule Congress applied when writing the statute governing these proceedings.
Breyer was cast as a moderate when he was first nominated for the Court in 1994, in large part on the theory that he would break from the habit of liberal predecessors of anti-death-penalty radicalism. It is an ironic close to his tenure on the Court to find him adopting what amounts to another radical anti-death penalty rule that would effectively eliminate the rules of evidence in such cases, without a basis to do so in the Constitution, and in direct contravention of a federal statute, all for the purpose of saving from execution one of the perpetrators of a notorious terrorist attack on Breyer’s own city.
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