Post by Rhino Post by Adam H. Kerman
I had forgotten why the 1st Circuit overturned Dzhokhar Tsarnaev's death
penalty. He's the younger brother in the Boston Marathon bombing.
Tsarnaev appealed to the U.S. Court of Appeals for the 1st
Circuit, which last year upheld his convictions and life
sentences but threw out Tsarnaev's death sentences. The court of
appeals ruled against the government on two separate grounds.
First, it held, the district court should have asked potential
jurors what media coverage they had seen or heard about
Tsarnaev's case. Second, it concluded, the district court should
not have excluded from the sentencing phase evidence that
Tamerlan was involved in a separate, unsolved triple murder in
Massachusetts in 2011. That evidence, the court of appeals
reasoned, was "highly probative of Tamerlan's ability to
influence" his brother.
The possibility that his older brother might have influenced him to
participate in an earlier triple homicide neither was charged with... was
a point in his favor?
"He was brainwashed by his brother and couldn't resist his demands,
causing him to do something he never otherwise would have done. The poor
little lamb just needs some lovin', not a nasty jail...."
Tsarnaev is the respondent for the purpose of the appeal to reinstate
his death penalty conviction.
Respondent absolutely has not appealed any prison sentence. Even if the
death penalty isn't reinstated, he remains subject to a life sentence.
At trial, Tsarnaev had already argued that he had no involvement in the
earlier murders anyway.
His appellate attorney Ginger Anders is an attractive woman in her 40s
who looks slim and athletic, kind of reminded me of a female marathon
athlete. You always wonder about how attorneys can provide a vigorous
defense to the best of their ability thinking at the front of their
minds that, yeah, under circumstances similar to the crime, their
clients might have murdered them.
I'm noting again that the Biden administration argues to reinstate the
death penalty conviction. The deputy solicitor general Eric Feigin (a
former Alito clerk) had some good arguments but, my gawd, at one point
Kagan asked him a hypothetical and had to twist his arm to get him to
answer, and at another point, Gorsuch threw him a softball (just
summarize your best argument here) and he barely cooperated with that
One thing Feigin did in his final rebuttal was treat it like the
prosecutor's summation to the jury. Once again, he went through the key
points of Tsarnaev's crimes that could not be said to have been
influenced by his older brother. As I said before, the jury in applying
the death penalty limited it to facts in which Tsarnaev could not have
been under his brother's influence and didn't apply it to fact in which
he could have been.
I don't know if that's a good strategy for the Supreme Court, but gah,
if the death penalty is fair for anyone to receive, it's Tsarnaev.
I'm always expecting another Ted Olson or Paul Clement or Don Verrilli.
The office is vacant, bizarrely.