SCOTUS Reinstates Marathon Bomber’s Death Sentence

Opinion here. CJLF brief here. Prior post here. The prior post is an extended discussion of the evidence point in this case, while the brief is addressed primarily to the jury question. The issues are described in the prior post, so I will copy some of that material here.

In July of 2020, the U.S. Court of Appeals for the First Circuit in Boston reversed the death sentence and some of the convictions (though not on the capital offenses) of Dzhokhar Tsarnaev, the survivor of the pair of brothers who committed the horrible bombing of the Boston Marathon in 2013.

The Court of Appeals’ primary reason for reversal was its finding that during jury selection the trial court violated its half-century old rule in Patriarca v. United States, a precedent never mentioned by either party in the trial court or in the Court of Appeals’ pre-trial reviews of jury selection.
The court also said it would “address other issues (even if just briefly) because we know they are likely to resurface on remand.” One of those was a claim that the judge erred in not allowing hearsay evidence of an earlier, unrelated murder that the older brother was alleged to have been involved in. The six-Justice majority today disposed of both holdings without much difficulty.

Jury Selection

On the jury selection point, Tsarnaev claimed that the trial judge was required, upon defendant’s request, to question the jurors on the specifics of the media coverage they had seen. Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) is on-point precedent that the Sixth Amendment does not require this, so the only real issue is whether some non-constitutional standard requires it in federal courts, but not in state courts.

Once upon a time, the Court dropped a footnote in a state case saying it would establish such a rule for federal courts when the case presented itself. See Ristaino v. Ross, 424 U. S. 589, 596, and n. 8 (1976). Five years later, a plurality opinion purported to establish such a rule. See Rosales-Lopez v. United States, 451 U. S. 182 (1981). But a passing observation on a point not actually before the Court is not precedent, and neither is a plurality opinion when the Justices needed to form the majority concur on narrower grounds. Even so, while briefing the case I thought this distinction of constitutional requirements versus federal “best practices” was the primary hurdle to clear.

Somewhat surprisingly, the opinion of Court brushes past this distinction without a single dissent on this point. Ristaino and Rosales-Lopez are cited, but for other points. The Mu’Min case is cited as contrary without mentioning that it was limited to the constitutional standard.

But if no national standard requires specific content questions, what about the First Circuit’s “supervisory power” to make such a rule for district courts in its circuit only? Without resolving the disputed question of whether such a power exists at all, the Court holds it does not go that far. No one doubts that such a rule cannot contradict the Constitution, statutes, or the federal rules. Today, the Court confirmed that “lower courts cannot create prophylactic supervisory rules that circumvent or supplement legal standards set out in decisions of this Court.” (Emphasis added.)

But supplementing constitutional minimums with standards considered “best practices,” though not constitutionally required, is just what the Court used to do with its “supervisory power.” The power has been in disuse for a long time. There seems to be little need for it since the Rules Enabling Act was passed long ago. If a given practice would be better, just adopt it as a rule. That process, applied prospectively only, avoids the regrettable and wasteful practice of overturning judgments that were correctly rendered under the rules in effect at the time and requiring retrials.

Justice Barrett adds a concurring opinion expressing her skepticism of the supervisory power. Neither her opinion nor the majority cite the primary law review article taking this position, but it is discussed in CJLF’s brief: Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006). Needless to say, I was not surprised by Justice Barrett’s concurrence.

Evidence

That leaves the evidence point. The issue is discussed at length in the prior post. In a nutshell, even though the Federal Death Penalty Act clearly gives the judge an authority similar to Federal Rule of Evidence 403 to exclude evidence of low probative value when that value is outweighed by other consideration, Tsarnaev claimed, in essence, an absolute right to all evidence with any mitigating probative value whatever.

To the extent that this argument is based on the Eighth Amendment and the notorious Lockett line of cases, the Court said, “Our cases do not support Dzhokhar’s extreme position.” No surprise coming from Justice Thomas, who has been on record for nearly three decades for the position that this line of cases has grown into a monstrosity with no connection to the real Constitution. But now we have 2/3 of the Court joining a more limited view of the Lockett line. This is progress that may go considerably beyond the narrow issues in this case.

Tsarnaev’s alternate argument is to attack the way the trial judge applied his 403-type discretion to the facts of the case, but that is a nearly certain loser on appeal, and the Court upheld the judge’s ruling.

The argument that evidence used to support a search warrant must necessarily be admissible at trial similarly does a belly flop. “We fail to see why.”

The majority responds to the dissent with this interesting paragraph:

For its part, the dissent subjects the District Court’s decision to exclude the Waltham evidence to a more stringent standard of review and, based on its independent review of the record, would reverse. Post, at 5–16. While the dissent acknowledges that district courts enjoy “significant discretion” when making evidentiary decisions, post, at 5, it nevertheless argues that the death penalty context here requires us to scrutinize the District Court’s decision with “particular judicial care,” post, at 15.

I have long thought it very strange that so many people think that the penalty phase of a capital case requires more scrutiny than the guilt phase of a life-without-parole (LWOP) case. That seems to me quite backwards. Which is the greater injustice? Sentencing a certainly guilty murderer to death despite mitigating circumstances or sentencing an innocent person to life in prison without parole?

In my view, it’s not even close. The two are not in the same league. A person who chose to commit capital murder chose to incur the possibility of a death penalty. Death is per se a proportionate punishment for premeditated murder. The question in the penalty phase is whether to give the defendant a just sentence or to temper justice with mercy and let him off with something less. Mercy is very often the correct choice, but failure to grant it is never a miscarriage of justice in the same league with convicting a person of a crime he did not commit.

(Capital murder, BTW, excludes the felony-murder accomplice with no intent to kill under the Enmund rule.)

The majority today rejected creating “death is different” rules for evidentiary rulings. Hopefully in the future it will start chipping away at all the ill-considered “death is different” rules the Court has made in the past.