{"id":3217,"date":"2021-03-23T13:22:20","date_gmt":"2021-03-23T20:22:20","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=3217"},"modified":"2021-03-23T13:22:20","modified_gmt":"2021-03-23T20:22:20","slug":"why-did-scotus-take-the-boston-marathon-bomber-case","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=3217","title":{"rendered":"Why Did SCOTUS Take the Boston Marathon Bomber Case?"},"content":{"rendered":"

As Kent reported yesterday<\/a> the Supreme Court granted the government’s petition for cert in the Boston Marathon bomber case.\u00a0 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.<\/p>\n

I spent the first few years of my career at the Justice Department answering defendants’ petitions for cert.\u00a0 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.\u00a0 That is generally a classic formulation of a reason that the Court will not<\/strong><\/em> grant review.\u00a0 There is no broadly applicable area of law in need of elaboration, and no circuit split.<\/p>\n

It could be that the case is sufficiently notorious that the Court thought it worthy of review simply standing on its own.\u00a0 But that seems unlikely; the Court tends to use its scarce time to address contentious legal questions regardless of a case’s public notoriety.\u00a0 So what’s going on?<\/p>\n

I don’t know for sure, and I have no inside information (if I did, I couldn’t discuss it publicly anyway).\u00a0 But my preparation for my death penalty debate with Prof. Carol Steiker<\/a> of Harvard Law gave me what might be a clue.<\/p>\n

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.\u00a0 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.<\/p>\n

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<\/a>) support it.\u00a0 Against that landscape, guerrilla warfare\u00a0 —\u00a0 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\u00a0 —\u00a0 are now the standard if weary inventory of the capital defense bar.\u00a0 (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)).<\/p>\n

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.\u00a0 Both the Boston Marathon case and the particular question about the adequacy of the trial court’s twenty-one day<\/em> voir dire seem well suited to that end.\u00a0 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.\u00a0 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.<\/p>\n

Perfection is unattainable in human life and it’s certainly unattainable in court.\u00a0 Yes, in a capital case, we need to be sure.\u00a0 But the things we need to be sure of\u00a0 —\u00a0 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\u00a0 —\u00a0 were overwhelmingly established in this case.\u00a0 In a nation with even residual moral confidence in itself and its law, that is enough.\u00a0 Caution is admirable.\u00a0 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.<\/p>\n

I would only add that, when Glossip and Bucklew were decided, Justice Ginsburg\u00a0 —\u00a0 a resolute foe of capital punishment\u00a0 —\u00a0 was on the Court.\u00a0 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.\u00a0 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.<\/p>\n

Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett.\u00a0 Did they take the Boston Marathon bomber case to say, finally, enough is enough?<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

As Kent reported yesterday the Supreme Court granted the government’s petition for cert in the Boston Marathon bomber case.\u00a0 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.\u00a0 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.\u00a0 That is generally a classic formulation of a reason that the Court will not grant review.\u00a0 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.\u00a0 But that seems unlikely; the Court tends to use its scarce time to address contentious legal questions regardless of a case’s public notoriety.\u00a0 So what’s going on?<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[],"class_list":["post-3217","post","type-post","status-publish","format-standard","hentry","category-death-penalty"],"yoast_head":"\nWhy Did SCOTUS Take the Boston Marathon Bomber Case? - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=3217\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Why Did SCOTUS Take the Boston Marathon Bomber Case? - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"As Kent reported yesterday the Supreme Court granted the government’s petition for cert in the Boston Marathon bomber case.\u00a0 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. 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