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Supreme Court to consider reinstating Dzhokhar Tsarnaev’s death sentence

The Supreme Court is seen at sundown in Washington.
The Supreme Court is seen at sundown in Washington.J. Scott Applewhite

The US Supreme Court said Monday it will consider restoring the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev, granting a petition by the Trump administration and creating a dilemma for President Biden, who has pledged to seek an end to federal executions.

The high court’s decision to review the case, likely in the fall, evoked painful memories of the deadly terrorist attack and renewed the wrenching debate over whether Tsarnaev should be put to death.

Tsarnaev, who has acknowledged his role in the 2013 attacks that killed three people and injured 260, was sentenced to death in 2015. Last summer, the First Circuit Court of Appeals upheld the bulk of his convictions but vacated his sentence, ruling that the trial judge “did not meet the standard” of fairness while presiding over jury selection.

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The Appeals Court found that at least two of the 12 jurors did not fully disclose what they knew about the high-profile case, or had discussed it on social media before they were chosen to decide Tsarnaev’s fate.

On Monday, Nathaniel R. Mendell, the acting US attorney for Massachusetts, said “we are pleased that the U.S. Supreme Court has agreed to hear the Tsarnaev matter.” The Justice Department declined to comment.

Marc Fucarile, 42, of Reading, who lost his right leg in the April 15, 2013, bombings near the finish line of the storied race, said he “100 percent” hopes the Supreme Court reinstates Tsarnaev’s death sentence.

“We shouldn’t even be revisiting it,” Fucarile said. “It should have been set in stone.” Sparing his life would signal to other terrorists, “that’s how soft these people are. Look what we can get away with.”

Other survivors and relatives of victims have spoken against the death penalty for Tsarnaev, and many have said they do not wish to endure another trial.

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In taking up the case, the Supreme Court could affirm the appellate court ruling, which ordered a new trial to determine whether Tsarnaev, 27, will be put to death or spend the rest of his life in prison, or reinstate the original death sentence.

“The judges always have the same two options: affirm or reverse,” Carol S. Steiker, a Harvard Law professor who co-directs the law school’s Criminal Justice Policy Program, wrote in an e-mail. “They could affirm the Court of Appeals, in which case the order for a new sentencing trial would stand. Or they could reverse, in which case, Tsarnaev’s death sentence would remain undisturbed.”

Steiker, the co-author of “Courting Death: The Supreme Court and Capital Punishment,” said federal prosecutors could abandon the Trump administration request and concede in court papers that the Appeals Court ruling was correct. Biden could also commute Tsarnaev’s death sentence, which would render any ruling by the Supreme Court moot.

The Supreme Court’s approach to the case, she added, “will indicate how much weight it is willing to give to a well-reasoned decision of a lower federal court in the general areas of pretrial publicity and introduction of mitigating evidence in capital cases, and more broadly, how much the Court will police the fairness of the federal capital trial process.”

Biden has stated his opposition to capital punishment and Attorney General Merrick B. Garland has expressed “great” concern about its application. He has not said whether the Biden administration would support the death penalty for Tsarnaev and Dylann Roof, who murdered nine Black men and women in Charleston, S.C., inside a church in 2015.

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“President Biden has made clear, as he did on the campaign trail, that he has grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness,” White House press secretary Jen Psaki said at a press briefing Monday. “He’s also expressed his horror at the events of that day, and . . . Tsarnaev’s actions.”

Psaki noted that Biden spoke in Boston on the one-year anniversary of the bombings. She would not say why the Justice Department had not abandoned the Tsarnaev appeal given Biden’s concerns about the death penalty.

President Obama made the initial decision to seek the death penalty in the Tsarnaev case, Suffolk Law School professor Rosanna Cavallaro noted.

“What’s curious is the Obama administration initially recommended [death sentence], so it’s not really confronting a Trump-era judgment,’' Cavallaro said. “I think it puts Biden in a particularly difficult position because it’s going to be viewed as repudiating what the Obama department recommended.”

The court “has crystallized the need for the Biden Justice Department to decide, not only about this case but more broadly and more generally about whether they are going continue to seek sentences of death in federal criminal cases,” she said.

Nancy Gertner, a retired federal judge who teaches at Harvard Law School, said the government should consider dropping its pursuit of the death penalty for Tsarnaev.

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“The First Circuit carefully reviewed Mr. Tsarnaev’s case and concluded that the trial judge made errors that undermined the fairness of his death sentences,” Gertner said in a statement. “Given that Mr. Tsarnaev will never leave prison, the government should consider whether continuing to pursue a death sentence for him is unnecessarily traumatizing for the victims’ families and the City of Boston.”

Tsarnaev and his older brother, Tamerlan, also killed an MIT police officer, Sean Collier, while they were on the run. Tamerlan Tsarnaev died in a shoot-out with police in Watertown days after the blasts. Boston police Officer Dennis Simmonds, who suffered a head injury when Tamerlan Tsarnaev detonated an explosive device during the shoot-out, died a year later from those injuries.

Material from the Associated Press was used in this report. Jim Puzzanghera of the Globe Staff contributed to this report.


John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe. Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.