The Democratic government “declared a moratorium on federal executions but you defend the death penalty” for Djokhar Tsarnaev, noted during the hearing the conservative magistrate Amy Coney Barrett.
“If you win, he will be sentenced to live under the threat of a death penalty that the government does not intend to apply,” she continued to the address of the representative of the Ministry of Justice. “I find it difficult to understand the objective”.
“We ask that the reasoned decision” of the jurors who imposed the death penalty be respected because “with his brother, he killed and mutilated hundreds of innocent people,” was content to answer Eric Feigin without entering into political debate.
In 2013, Dzhokhar Tsarnaev, a young student of Chechen origin, planted two homemade bombs with his older brother Tamerlan near the finish line of the Boston marathon, killing three, including an eight-year-old child, and injuring 264. .
Identified by surveillance cameras, the two brothers had fled, killing a police officer during their run. Three days after the attack, the eldest was shot dead during a confrontation with the police.
Djokhar Tsarnaev was found wounded, hidden in a boat. He had written on a wall that he wanted to avenge the Muslims killed in Iraq and Afghanistan.
During his trial in 2015 in Boston, his lawyers claimed that the young man, aged 19 at the time (28 years old today), was under the influence of his self-radicalized elder. Without denying the seriousness of the facts, they had pleaded for life imprisonment.
The jurors had not been convinced and had opted for the death penalty.
In 2020, a federal court of appeal retained the guilty verdict but overturned the death penalty citing two irregularities.
For her, in this highly publicized case, it would have been necessary to question the potential jurors on what they had read or seen at the time of the attack, in order to rule out those who have already formed their opinion.
Likewise, she ruled, the court was wrong to reject a defense request which wanted to evoke a triple murder dating back to 2011, probably committed by the elder of the Tsarnaevs, as proof of his character as a leader.
Even though this decision made it possible to keep Djokhar Tsarnev in prison for life, it had been strongly criticized by Donald Trump, who was then president. A fervent supporter of the death penalty, he had asked his government to appeal to the Supreme Court.
Once in the White House, Joe Biden could have withdrawn this request but he let it take its course. During his campaign, the Democrat had yet promised to work to abolish the death penalty at the federal level.
During the hearing on Wednesday, the exchanges focused on the triple murder of 2011.
“The court refused to admit elements relating to a sordid murder in which Tamerlan seems to have exercised great influence over an accomplice”, which supported the central argument of the defense, noted Elena Kagan.
Like her, other progressive judges seemed to feel that this justified overturning the death penalty.
But their Conservative colleagues, who have a solid majority, did not seem convinced. For them, there are doubts about Tamerlan’s real involvement in the crime and talking about it risked creating “a mini-trial within the trial”.
As for the selection of jurors, “it would have been totally appropriate to ask them” what information had marked them, said progressive judge Sonia Sotomayor, referring to the enormous media coverage of the drama.
But for the representative of the government “the jury returned a nuanced verdict not on the basis of the publicity before the trial, but on the evidence”, starting with a video in which we see Djokhar Tsarnaev “separated from his brother”, place his backpack filled with a bomb “behind a group of children”.
“If it’s not someone who knew exactly where the bomb was going to explode, I don’t know what it is,” he said in conclusion.
The Supreme Court must render its decision before the end of June 2022.