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Death penalty should be reinstated for Tsarnaev in Boston Marathon bombings case, Biden administration tells Supreme Court

In this 2015 courtroom sketch by Jane Flavell Collins, Boston Marathon bomber Dzhokhar Tsarnaev stood with his defense attorneys as a death by lethal injection sentence was read.Jane Flavell Collins/Associated Press

The Justice Department is asking the US Supreme Court to reinstate the death penalty against Dzhokhar Tsarnaev for the Boston Marathon terrorist bombings, which killed three people and wounded more than 260 others.

In a 48-page brief filed Monday, federal prosecutors said that a jury had concluded that Tsarnaev’s role in the 2013 bombings near the finish line on Boylston Street warranted the death sentence and that the verdict should be respected.

“The jury carefully considered each of [Tsarnaev’s] crimes and determined that capital punishment was warranted for the horrors that he personally inflicted — setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others ‘to a lifetime of unimaginable suffering,’ “ the lawyers wrote. “That determination by 12 conscientious jurors deserves respect and reinstatement.”


Tsarnaev was convicted in 2015 and sentenced to death. But last year, the First Circuit Court of Appeals overturned the death sentence, saying trial Judge George O’Toole had wrongly excluded evidence that Tsarnaev’s brother Tamerlan had committed a triple murder in Waltham in 2011 and did not ensure the 12 jurors were sufficiently free of bias. The ruling left intact Tsarnaev’s sentence of life in prison without the possibility of parole.

Last fall, the Trump administration appealed that decision to the Supreme Court and now the Justice Department under Biden is moving the appeal forward, despite the president’s pledge to seek an end to federal executions.

White House spokesperson Andrew Bates said in an e-mail that the Justice Department “has independence regarding such decisions.” But Bates said the president “believes the Department should return to its prior practice, and not carry out executions.”

Bill and Denise Richard, a Dorchester couple who lost their 8-year-old son, Martin, in the bombings, have opposed the death sentence for Tsarnaev.


They remain committed to that view, according to Dot Joyce, a longtime ally who serves on the board of directors of the Martin Richard Foundation. The couple believes their thoughts are best expressed in their 2015 column published in the Globe, Joyce said.

“We understand all too well the heinousness and brutality of the crimes committed,” the couple wrote then. “We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives.”

Governor Charlie Baker said he supported the Justice Department’s efforts to have Tsarnaev put to death.

“I said a long time ago that I thought Tsarnaev should face the death penalty, so I would agree with the Biden administration on that one,” said Baker, a Republican.

The Supreme Court said in March that it would take up the appeal, and is expected to hear oral arguments this fall. The appeals court had ordered a new trial to determine whether Tsarnaev should be put to death, but the Supreme Court could either affirm the appeals court ruling vacating the death sentence or reinstate it.

Daniel S. Medwed, a criminal justice professor at Northeastern University School of Law, said Biden’s decision to reinstate the death penalty against Tsarnaev is a setback for opponents of the death penalty.


“But going forward this will not foreclose Biden from taking steps to curtail the federal death penalty, and I anticipate that his administration will do so,” he said.

He said the Biden administration was likely pushed into pursuing the appeal because of institutional pressures. Supreme Court cases often span administrations and inside the Justice Department there are likely people convinced that Tsarnaev’s crimes deserve the ultimate punishment, Medwed said.

Still, the Supreme Court appeal is not about the death penalty itself, Medwed said, but about jury selection.

In its ruling vacating the death sentence the appeals court found that at least two jurors did not fully disclose what they knew about the high-profile case. Tsarnaev’s trial attorneys showed that one juror, the foreperson, hid that she had posted on Twitter about being “locked down” during the manhunt for Tsarnaev, and that she called him a “piece of garbage” after the attacks. The appeals court held that O’Toole erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially.

Lawyers for Dzhokhar Tsarnaev argue that Tamerlan Tsarnaev was a ruthless leader who emotionally dominated his younger brother and that Dzhokhar Tsarnaev feared for his own life. If given a fuller picture of Tamerlan Tsarnaev’s homicidal violence and dominating personality, jurors would not have approved the death sentence, the lawyers have argued.

But Justice Department lawyers said there is overwhelming evidence of Dzhokhar Tsarnaev’s independence that includes his decision to place a deadly bomb on Boylston Street.


Tsarnaev was also clearly making his own decisions when he kidnapped a gas station customer in Cambridge and helped his brother murder MIT police Officer Sean Collier, prosecutors contend. He also ran over his brother with a stolen car during a gunfight with police in Watertown. Tamerlan was killed during that incident.

“The record definitively demonstrates that [Tsarnaev] was eager to commit his crimes, was untroubled at having ended two lives and devastated many others, and remained proud of his actions even after he had run Tamerlan over and was hiding out alone,” the brief stated.

The terrorist attack also killed Boston University graduate student Lingzi Lu and Krystle M. Campbell. Boston police Sergeant Dennis Simmonds suffered a head injury during the Watertown shootout and died of his injuries one year later. More than 250 people were wounded, many of whom suffered devastating injuries to their lower extremities from shrapnel.

Former federal prosecutor Neama Rahmani, who also served as enforcement director of the Los Angeles City Ethics Commission, agreed that the high court primarily will be concerned with jury selection in high-profile criminal matters and what evidence is admissible.

“It really has nothing to do with the death penalty,” Rahmani said.

He said the jury selection process in the Tsarnaev trial was “one of the most extensive” ever conducted in federal court, and that the First Circuit’s ruling reversing the death penalty based on the presiding judge’s failure to ask a “correct question” during questioning of jurors “is inconsistent with past precedent.”


Harvard Law School professor Laurence H. Tribe, an expert on constitutional and criminal law, said the Justice Department is acting appropriately by bringing the matter to the high court.

“This is exactly what Biden’s DOJ should be doing,” Tribe posted on Twitter Tuesday. “Biden’s personal opposition to the death penalty, which I share, and which Merrick Garland might share as well, is irrelevant. The law is clear.”

But Michael F. Crowley, a Boston-based consultant and former senior fellow at the Brennan Center for Justice, questioned the decision.

“President Biden opposed the death penalty during the campaign,” Crowley tweeted Tuesday. “Attorney General Merrick Garland expressed ‘great pause’ about the death penalty at confirmation. So why is the Justice Department pursuing reinstatement of the death penalty in this case?”

Material from the Associated Press was used in this report. Travis Andersen of the Globe staff contributed to this report.

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