The Marathon Bomber Briefs

We put the finishing touches on CJLF’s friend-of-the-court brief in the Marathon Bomber case yesterday. Links will be available to the PDF version here and on our main website Monday after it is filed.

As Bill noted Tuesday, the Government followed through with a brief on the merits seeking reinstatement of the death sentence despite the present Administration’s anti-death-penalty stance. It does appear that the political types stepped back and let the pros do their job. They produced a brief up to the high standards of the Solicitor General’s Office–thoroughly researched and well-written.

Writing an amicus brief in support of the federal government is different from the usual amicus process. The Deputy SG will be courteous if I call but will share nothing about the arguments they are going to make. (I rarely call any more.) DoJ’s approval process is such that the deputies themselves may not know for sure what arguments will be in the final until the day it is filed.

We see the government’s brief when it is filed, and our due date is one week later. Entire arguments sometimes go on the cutting room floor because the government has covered the point so thoroughly that our argument is redundant. Filing amicus briefs that merely parrot the party supported is a major no-no at SCOTUS. Others do it all the time anyway, but we do not.

In this case we didn’t have to cut too much because the government did an excellent job of briefing the two main issues that I expected them to brief. First, the trial judge’s conduct of voir dire regarding pretrial publicity meets the constitutional standards of Mu’Min v. Virginia, and the Court should not exercise its supervisory power to create a stricter rule for federal courts, as the First Circuit did. Second, the judge’s exclusion of marginally relevant evidence of a prior crime by the defendant’s older brother and co-conspirator was within his discretion under 18 U.S.C. § 3593(c). That standard is similar to Federal Rule of Evidence 403 (and California Evidence Code § 352), weighing probative value against confusion, prejudice, etc. Our brief will emphasize related but different points, which I will explain in a subsequent post.

So why did this Administration not pull its punches? Bill congratulates “President Biden, Attorney General Garland and Acting Solicitor General Prelogar for putting aside personal opposition to capital punishment (a relatively recent position for the President and the AG)” and deciding on more principled grounds. I’m a bit more skeptical.

Last December, I double-dog-dared the President-elect to show that he truly did oppose the death penalty in a post about this case:

Last month, AP reported that the President-elect’s spokesman said, “President-elect Joe Biden is against the death penalty and will work to end its use.”

Really? End its use means end it for all murderers, even the very worst. Does he really mean that? If so, he has a chance to show it right out of the gate.

I am not surprised that he didn’t. Having observed Mr. Biden on this issue for many years, I believe that his position from day to day is based primarily, if not entirely, on finger-in-the-wind politics. In the old days, he had to support the death penalty (at least when the spotlight was on) because he could not be reelected Senator from Delaware or have a shot at the White House if he did not. In 2020, he had to oppose the death penalty because he could not win the Democratic primary if he did not. He will continue with that position as a general matter because the solidity of his base depends on it.

What does he personally believe on the subject? I don’t know, and I don’t think it matters.

The friends of murderers are all in a lather over the government’s brief in the bomber case. See, e.g., this article in Slate by long-time death penalty opponent Austin Sarat. They shouldn’t be.

In politics, as in warfare, you have to choose the ground on which to make your stand. This is not the ground for effective opposition. Opposing the death penalty in this case would make starkly clear to the public what abolition of the death penalty really means. If the people truly understand they won’t go for it, and the opposition side loses. That is exactly why I double-dog-dared him.

Ideological purity and logical consistency bring applause from your own side, but cunning politics wins the battle. Mr. Biden is still a cunning politician, and I think he is still looking for better ground to take his stand.

In the meantime, the terrorist will not actually be executed. After SCOTUS reinstates the sentence on direct appeal, as I expect it will, there is still the collateral review process. That process can be finished in a reasonable time, but only if there is a strong push behind it, as there was in the case of the Oklahoma City Bomber, Timothy McVeigh. I predict that the current Attorney General will not make that push for the current terrorist, despite his role with the previous one.