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Supreme Court heard arguments in case about Boston Marathon bomber's death sentence


At the Supreme Court today, the justices heard arguments in the case of Dzhokhar Tsarnaev. He was sentenced to death for his role in the 2013 terrorist bombing at the Boston Marathon, where three people were killed and 260 were injured. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The question in today's case was not Tsarnaev's guilt but whether he was properly sentenced to death. Though Massachusetts has abolished the death penalty, Tsarnaev was convicted on 30 federal charges and sentenced to death for six of those crimes. But a federal appeals court in Boston overturned the death sentences. Today the justices focused on the trial judge's refusal to allow evidence that the defense said would have shown Dzhokhar, 19 at the time of the bombing, was under the influence of his brother, Tamerlan, seven years older. Specifically, the judge would not allow the jury to hear evidence allegedly showing that the older brother two years before the bombing slit the throats of three men in Waltham, Mass., an act of jihad on the anniversary of the 9/11 attack. Justice Elena Kagan questioned the omission of that evidence at the penalty phase of the trial when the defense is supposed to be allowed leeway in showing why the defendant is less culpable and not deserving of the death penalty.


ELENA KAGAN: At that point, it's the job of the jury - isn't it? - to decide on the reliability of the evidence?

TOTENBERG: Justice Stephen Breyer seemed to agree.


STEPHEN BREYER: They had no other defense. They agreed he was guilty. Their only claim was, don't give me the death penalty because it's my brother who was the moving force.

TOTENBERG: But several of the court's conservatives chimed in to note that all the participants in the Waltham murders are now dead. Tamerlan and the friend who identified him as the killer are dead - Tamerlan after a shootout with police after the Boston bombing, and the friend was killed a month later after he attacked FBI agents.

Justice Brett Kavanaugh.


BRETT KAVANAUGH: The theory that Tamerlan was the lead player in that is entirely - well, is unreliable.

TOTENBERG: Chief Justice John Roberts.


JOHN ROBERTS: There were no witnesses available. They were both dead.

TOTENBERG: But lawyer Ginger Anders, representing the defendant, maintained that there was corroboration of Tamerlan's role in the three murders - evidence that included an FBI affidavit, a search of Tamerlan's computer and more. Without that evidence before the jury, she said, the prosecution was able to portray the older brother as merely bossy, and the defense was not allowed to show the jury that Dzhokhar was strongly influenced and led by his violent older brother.


GINGER ANDERS: The government could not have made those arguments if it had - the defense would have said Tamerlan's not just bossy. He's violent. He's already committed violent jihad. Dzhokhar knows about it.

TOTENBERG: Indeed, as Justice Kagan observed, even without that evidence...


KAGAN: This jury actually produced a very nuanced verdict. It was only the acts where the older brother was not on the scene in which death was appropriate.

TOTENBERG: Addressing Deputy Solicitor General Eric Fagan, Kagan asked, what do you suppose the jury might have thought if they knew that the older brother had murdered three people? Fagan replied that the jury saw video evidence of what the younger brother actually did.


ERIC FAGAN: What those exhibits are going to show is respondent physically separating from his brother near the finish line of the Boston Marathon, positioning himself behind a group of children, putting down his backpack, contemplating for about three minutes, taking out his phone and calling his brother, after which the first bomb goes off. He barely gets off screen before 20 seconds later, the second bomb explodes, killing and maiming people.

TOTENBERG: Justice Barrett then interjected a note of reality.


AMY CONEY BARRETT: Mr. Fagan, I'm wondering what the government's endgame is here.

TOTENBERG: As she noted, the Biden administration has imposed a temporary moratorium on federal executions, but the administration is still defending the Tsarnaev death sentence.


BARRETT: If you win, presumably that means that he is relegated to living under the threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point.

TOTENBERG: Fagan did the best he could, explaining that the attorney general is reviewing the Trump administration's execution protocols, and in the meantime, asking the Supreme Court to uphold the jury's verdict.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF LANE 8 AND ANDERHOLM'S "BLUEBIRD") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.