U.S. Seeks Supreme Court Review of Marathon Bomber Case

The U.S. Solicitor General has filed a certiorari petition asking the Supreme Court to review the Marathon Bomber case. The Court of Appeals for the First Circuit had overturned the death sentence of the surviving bomber brother, Dzhokhar Tsarnaev. See this post.

The court of appeals’ reason for overturning the death penalty was its own precedent regarding the questioning of potential jurors about their exposure to pretrial publicity. The government contends that the court of appeals sprung a surprise on the district court and the prosecution by interpreting a 52-year-old precedent to require more specific questioning than was generally recognized at that point. This interpretation puts the First Circuit into more than a little tension with two Supreme Court precedents, Mu’Min v. Virginia, 500 U.S. 415 (1991) and Skilling v. United States, 561 U.S. 358 (2010).

For most litigants, asking the Supreme Court to review their case is a long shot, but not for the Solicitor General. A large portion of SG petitions are granted. On a case this notorious, with a court of appeals making an idiosyncratic rule on an important point, the likelihood the court will take it is quite strong.

The case is United States v. Tsarnaev, No. 20-443.