WASHINGTON — The Biden administration will try to persuade the Supreme Court this week to reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev by arguing that a jury had no need to examine evidence that the government itself relied on at an earlier phase of the case.
Tsarnaev's guilt in the deaths of three people in the shocking bombing near the finish line of the marathon in 2013 is not at issue in the case the justices will hear Wednesday — just whether he should be sentenced to life in prison, or death.
Nor is the court likely to ponder the administration's aggressive pursuit of a capital sentence for Tsarnaev even as it has halted federal executions and President Joe Biden has called for an end to the federal death penalty.
Instead, the main focus will be on evidence that Tsarnaev's lawyers wanted the jury to hear that supported their argument that his older brother, Tamerlan, was the mastermind of the attack and that the impressionable younger brother was somehow less responsible. The evidence implicated Tamerlan Tsarnaev in a triple killing in the Boston suburb of Waltham on the 10th anniversary of the Sept. 11, 2001, terrorist attacks.
The federal appeals court in Boston ruled last year that the trial judge made a mistake in excluding the evidence and threw out Tsarnaev's death sentence. There's a second issue in the case: whether the trial judge did enough to question jurors about their exposure to extensive news coverage of the bombing.
The Trump administration, which carried out 13 executions in its last six months, quickly appealed. When the new administration didn't indicate any change of view, the court agreed to review the case.
Tsarnaev's lawyers have never contested that he and his brother set off the two bombs near the marathon finish line on April 15, 2013. Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford; and 8-year-old Martin Richard, who had gone to watch the marathon with his family, were killed. More than 260 people were injured.
During a four-day manhunt for the bombers, Massachusetts Institute of Technology Police Officer Sean Collier was shot dead in his car. Boston Police Officer Dennis Simmonds also died a year after he was wounded in a confrontation with the bombers.
Police captured a bloodied and wounded Dzhokhar Tsarnaev in the Boston suburb of Watertown, where he was hiding in a boat parked in a backyard, hours after his brother died. Tamerlan Tsarnaev, 26, had been in a gunfight with police and was run over by his brother as he fled.
Tsarnaev, now 28, was convicted of all 30 charges against him, including conspiracy and use of a weapon of mass destruction and the killing of Collier during the Tsarnaev brothers' getaway attempt. The appeals court upheld all but a few of his convictions.
A convicted murderer who is pleading with a jury to lock him up for life, rather than vote for his execution, has wide leeway to present evidence that he thinks would make a death sentence less likely.
The 2011 killings, defense lawyers said, went to the heart of their argument that Tsarnaev was deeply influenced and radicalized by his revered brother, who already had shown a capacity for extreme violence. The younger sibling was less responsible for the marathon mayhem, they said.
"The evidence thus made it vastly more likely that Dzhokhar acted under Tamerlan's radicalizing influence and that Tamerlan led the bombings," Ginger Anders, Tsarnaev's leading Supreme Court lawyer, wrote in a high-court filing.
For its part, the administration contends that it does not contest the older brother's leadership role, and that defense lawyers were able to make that case. Still, the jury sentenced Tsarnaev to death, acting Solicitor General Brian Fletcher wrote.
Tsarnaev "made the choice to commit a terrorist attack against children and other innocent spectators at the marathon, and the jury held him accountable for that choice," Fletcher wrote.
The account of Tamerlan's involvement in the earlier killings came from a friend, Ibragim Todashev, whom investigators interviewed after the marathon attack. Todashev told authorities that Tamerlan recruited him to rob the three men, and they bound the men with duct tape before Tamerlan slashed their throats to avoid leaving any witnesses.
In a bizarre twist, while Todashev was being questioned in Florida, he was shot dead after authorities say he attacked the agents. The agent who killed Todashev was cleared of any criminal wrongdoing.
Dzhokhar also told a college friend that his brother was involved in the Waltham killings and had committed "jihad" there, a lawyer representing the friend told prosecutors. No one has ever been charged in the triple murder.
But prosecutors said the evidence linking Tamerlan to the Waltham killings was unreliable, was irrelevant to Dzhokhar's participation in the marathon attack and would only confuse jurors. The judge overseeing the trial agreed.
Yet, authorities previously used Todashev's statements to apply for a warrant to search Tamerlan's car after the bombings for blood, DNA and other evidence relevant to the triple murder.
Anders called the government's description of the statements as unreliable "a breathtaking about-face" after defending their reliability in order to obtain a warrant.
The Justice Department said different standards apply and that in asking for a search warrant, federal agents were not saying that every word of what Todashev said was true.
A court ruling for Tsarnaev would raise the possibility of a new sentencing trial that would force victims and their families to relive that horrific time, if the administration wanted to try again for a death sentence.
Two years after the attack, the parents of the youngest victim wrote an essay printed on the front page of The Boston Globe urging the Justice Department to abandon its pursuit of the death penalty. Denise and Bill Richard wrote that years of appeals that would keep Tsarnaev's name in the news would force them to keep reliving their ordeal and prevent them from beginning to heal.
"As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family," they wrote.