Why Did SCOTUS Take the Boston Marathon Bomber Case?
As Kent reported yesterday the Supreme Court granted the government’s petition for cert in the Boston Marathon bomber case. The questions presented are whether the trial court held a sufficiently extensive voir dire, and whether it erred by excluding evidence that the bomber’s older brother was allegedly involved in different crimes two years before the Boston Marathon murders.
I spent the first few years of my career at the Justice Department answering defendants’ petitions for cert. The thing that immediately struck me about the government’s cert petition was that the questions presented went only to the application of reasonably settled law to the facts of an individual case. That is generally a classic formulation of a reason that the Court will not grant review. There is no broadly applicable area of law in need of elaboration, and no circuit split.
It could be that the case is sufficiently notorious that the Court thought it worthy of review simply standing on its own. But that seems unlikely; the Court tends to use its scarce time to address contentious legal questions regardless of a case’s public notoriety. So what’s going on?
I don’t know for sure, and I have no inside information (if I did, I couldn’t discuss it publicly anyway). But my preparation for my death penalty debate with Prof. Carol Steiker of Harvard Law gave me what might be a clue.
Prof. Steiker and I didn’t agree on much, but we did agree that SCOUTUS as presently constituted is more pro-death penalty than it has been in decades. In particular, the Court’s recent majority opinions in Glossip (Alito) and Bucklew (Gorsuch) seem openly impatient with the now-routine years of manufactured procedural motions and the boatload of last-minute complaints that have become, as Justice Alito put it in the oral argument in Glossip, part of the “guerrilla war” on the death penalty.
Ideological litigants understand that it’s now settled law that the death penalty is permitted by the Eighth Amendment, and that a healthy majority of the country (55% or more for at least the last 40 years, according to Gallup) support it. Against that landscape, guerrilla warfare — a litigation and public relations flurry that has essentially nothing to do with the defendant’s guilt or innocence, or the grotesqueness of his crime, and instead plays on tangential issues such as what religious denominations must have clerics available to be in the death chamber, or which particular kind of sedative is most efficacious in rendering the inmate unconscious — are now the standard if weary inventory of the capital defense bar. (This is not to mention the continuing refrain of racism, which has now become a one-size-fits-all complaint throughout criminal defense, regardless of the race of the criminal or the victim, or the absence of any discernible racial overtone in the particular crime at issue (as was the case with the Boston Marathon murders)).
So my guess (and I confess, my hope as well) is that the Court granted cert in order to send a message to the lower courts that the years of tolerance for diversionary legal maneuvering should now come to an end. Both the Boston Marathon case and the particular question about the adequacy of the trial court’s twenty-one day voir dire seem well suited to that end. The case is apt because the crime was unspeakably cruel and evil (desiccating an eight year-old boy who bled to death in his father’s arms (among other victims)), and the identity of the killer sufficiently certain, that if we are to have a viable death penalty at all, now is the time and this is the place. The question about the voir dire is apt because it’s clear that the trial judge was painstakingly thorough and fair, and that even if it might have been better to ask one more question here or there, the courts’ and the public’s confidence in the fairness and reliability of the outcome of the case, including the punishment, cannot reasonably be questioned.
Perfection is unattainable in human life and it’s certainly unattainable in court. Yes, in a capital case, we need to be sure. But the things we need to be sure of — that we’ve got the right guy, that the crime is particularly horrible, and that the death penalty is something a reasonable, properly instructed jury could easily return — were overwhelmingly established in this case. In a nation with even residual moral confidence in itself and its law, that is enough. Caution is admirable. Paralysis isn’t, and I wonder if this is where the Court will say that our present, semi-paralyzed stance toward capital punishment should be brought to an end.
I would only add that, when Glossip and Bucklew were decided, Justice Ginsburg — a resolute foe of capital punishment — was on the Court. She has been replaced by Justice Barrett, who, despite her religious convictions, has proven to be good to her word that she will apply the Constitution as its authors wrote it. And Justice Kennedy, always a shaky vote in capital cases (although, importantly, Kennedy was on the Court and voted with the majority in Glossip), has been replaced by Justice Kavanaugh, who has not exhibited Justice Kennedy’s occasional capital misgivings.
Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett. Did they take the Boston Marathon bomber case to say, finally, enough is enough?
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I have no idea why the court took up this case, but feel confident saying that Glossip and Buclew are not remotely comparable to this case. Bucklew and Glossip might legitamatly placed in the catagory of “guerilla war” tactics, not so much with this one. This is a direct appeal regarding errors at trial in both jury selection and sentencing. Much like the Oklahoma bombing case, I think a change of venue was required as virtually the entire city of Boston was locked down due to the bombing; but that is neither here nor there. Here the appeal comcerns jurors’ honesty and the scope of voir dire necessary for a constitutionally adequate impartial jury which is a bit more consequential a question than what chemical we use to kill a convicted murderer. The case also concerns the defendant’s right to present evidence in mitigation of punishment, an area of law where the Supreme court has reversed death sentences in the past. I don’t think this case falls into the category where the court might say, “enough is enough,” these are not minor, collateral, technical issues raised after appeals have been long since exhausted, rather they deal with fundamental issues going to the heart of what constitutes a fair trial. You seem to be saying that if the defendant is guilty enough and the crime bad enough we can just dispense with these procedural niceties. Close enough for government work…
The death penalty was re-instated 45 years ago. Over those more than four decades, the time from sentence to execution has ballooned. I don’t know the exact number amount. My seat-of-the-pants guess is that it’s gone from ten or eleven years back in the Eighties to 16, 17, or 18 years now. I know it was over 20 years in California before the current Governor-imposed moratorium.
That is way too much. I’ve done lots and lots of cases. It does not take that amount of time to know if you’ve got the right guy and if the crime he committed is worthy of the death penalty. Both questions get affirmative answers in this instance — something that, conspicuously, you don’t deny.
It’s true that this is a direct appeal rather than one of the exotic, time-and-again-and-again attempts at residual litigation that have become routine in capital cases. But four decades of shell games is enough, and the Court is not required to wait for the next obvious shell game to act. It’s already waited too long.
The trial judge here was as careful as you can get. Because, as I said, perfection is unattainable, it will ALWAYS be the case that some more or less legitimate question can be raised. It’s the job of defense counsel (you, for example) to raise them. It’s the job of a system that has moral confidence in itself and its values to say “no” — not “no” all the time, of course, but “no” when, to paraphrase you, the defendant is guilty enough and the crime bad enough and the procedures reliable enough for a normal person to be confident that carrying out the sentence is just.
It is here. Only an ideological abolitionist could disagree. But the country and the country’s law do not embrace ideological abolitionism.
There is no problem of the much ballyhooed “rush to judgment” here. We all know he’s guilty; be brags about it. Sister Perjean’s testimony that he was sorry down deep was just made up, like so much else of what she says. Capital defense would have more moral gravity if it didn’t lie so much.
Your side has been wonderfully successful in making death penalty litigation so complex, and so fraught with ten thousand moving parts, that it’s virtually impossible to get all of them exactly right in a single proceeding. But we don’t have to get them exactly right, as the Court has recognized. We have to get the basics right and we have.
Tsarnaev got a degree of due process that would be the envy of any fair-minded person on earth. It’s a tribute to the decency of our country that he got the elaborate protections we gave him. What country at what time has ever given a defendant the mass of protections we gave this creep?
That’s a real question. Can you name a single defendant, anywhere ever, who got more procedural protections?
The capital defense bar has been twitting the system for decades. A fair-minded and decent system must realize when the criticisms have weight, and adjust accordingly. But we don’t have to be twitted forever and, as the Justices have started to grumble in Glossip and Bucklew (and before then in Baze and Kansas v. Marsh), the “litigate-it-into-the-ground” theory of capital defense has gone as far as it should be permitted to go.
What you want here is not the vindication of “procedural niceties.” What you want is effectively to bring down the death penalty even for a grotesque child killer, and even though you have failed in the abolition effort both in statewide referenda and before the Supreme Court. Our country has gone way too far in allowing endless obfuscation, and it’s time to call a halt.
I don’t know that that’s what SCOTUS will do here, but, as you say, it’s difficult to see why otherwise it would have taken up this case.
Bill, I think you are generally right that this case is ultimately a high-profile example of certain Justices being eager to do a particular type of “error-correction” in a setting in which they see too many (death-sentence-reversal) errors. But I also think some members of the Court are also now more than happy to be putting the Biden Administration in a tough spot given concerns various of its members have expressed about capital punishment — in this regard, I found it notable the Court has had the petition fully briefed for 3 months and waited until after AG Garland was confirmed to grant.
That all said, do you really think there is any real chance that any kind of ruling here could and would change the capital litigation dynamics on the ground? I really thought Glossip was going to undercut significantly the execution method litigation, but it really did not achieve much at all. Because the “litigate-it-into-the-ground” approach has proven so very successful and has so very many fronts (now extended to clergy in the chamber), do you really think any ruling from SCOTUS can change the slow death of the death penalty that the so-called “guerrilla warfare” seems to have achieved?
Finally, your reference to Prof. Steiker reminded me of the prophetic piece she wrote with her brother way back in 2003 for the inaugural issue of the Ohio State Journal of Criminal Law: https://kb.osu.edu/bitstream/handle/1811/72573/OSJCL_V1N1_323.pdf. As you surely recall, support for capital punishment was quite strong circa 2003, but the Steikers imagined a distinct state of the law and debate circa 2022. Among the fascainitng aspects of this piece is they imagine the DP being deemed unconstitutional in 2022 for “ordinary” crimes, but preserved for “extraordinary” crimes like terrorism and utilizing “a weapon of mass destruction.” Of course, that just happens to be a key count on which Tsarnaev was convicted and sentenced to death, and his case will likely be decided in 2022. I doubt their predicted partial constitutional abolition will become a legal reality next year, but it is certain along a partical reality throughout much of the US.
Doug — A couple of points.
First, I don’t know enough about the internal scheduling of the Court to have an opinion about whether the timing of the cert grant was designed to put Biden and Garland on the spot. I would have to see strong evidence that the Court acted with such starkly political motives. And for that matter, I think Biden and Garland have an easy out from any “spot” they might think they’re in. Here’s Joe’s: “President Obama, for whom I served as second-in-command, determined that, despite his own serious questions about the death penalty, it was proper to allow a jury at least to consider it given the horrible nature of the crime and its terrorist overtones. For whatever my administration will do in future cases, I think it is proper and in keeping with my constitutional duty to see that the law is faithfully executed to allow the Supreme Court to review the First Circuit’s decision. After the Supreme Court has spoken, my administration will continue to have the opportunity to assess future developments.”
Pres. Biden knows how to appear to be statesmanlike, and yet plenty vague, when he wants to be. He’s had lots of practice. As long as Trarnaev remains on death row but doesn’t actually get executed — which could be years — Biden doesn’t have to risk making either side angry.
My second point is that whether a “we-need-to-cut-out-all-this-diversionary-stuff” sort of decision has effects on the ground will depend on its wording — how specific and how forceful. I agree with you that the capital defense bar isn’t going to change regardless of what the Court says; it’s going to keep on keepin’ on. That’s its nature. But there could be a change in how district courts and courts of appeals treat forever-and-a-day litigation, depending on how blunt SCOTUS chooses to be.
“I doubt their predicted partial constitutional abolition will become a legal reality next year, but it is certain along a practical reality throughout much of the US.” I agree with that, too. As long as the murder rate remains relatively low, prosecutors are likely to charge and get capital sentences only in pretty dreadful cases. (Of course the kicker there is that the murder rate skyrocketed last year and is continuing to be on a tear so far this year. History shows that support for the death penalty directly correlates with the murder rate. If the rate continues to rise, support for the DP — which has been stable at 55% for four years after falling considerably for the prior twenty — will very likely start to increase).
Wouldn’t it be odd for a court that halted the execution in Gutierrez to lecture other courts about dithering on death penalty cases?
As Steve Milani correctly points out, the Tsarnaev case is a direct appeal, and therefore dithering is not the principal problem (although it might well become one). Instead, as I noted in my response, the principal problem is expecting something close to perfection, as opposed to reliably adequate performance, in a system that has ten thousand moving parts.
Be that as it may, I would note two other things. First, Justices Kavanaugh and Barrett are deeply religious, and might be more sensitive to religion-related claims than the other conservatives. Second, even if one views the Gutierrez decision as unfortunate, let’s be thankful for what we can get by way of reform. Whatever SCOTUS does in cutting back either on grossly excessive delay, or on unrealistic expectations about how close to perfect performance it will expect from trial courts in capital cases, is something proponents of capital punishment should welcome. Consistency has not been the calling card of the Court’s death penalty jurisprudence, and is, in any event, “the hobgoblin of little minds.”