By: Jane Manwarring

On April 13, 2013, hours after the Boston Marathon began, runners, spectators, and loved ones watching from home were all shocked when a bomb exploded near the finish line of the race.[1] A second bomb exploded just twelve seconds after the first. As a result of the explosions, three people died and hundreds more were injured.[2]

The Federal Bureau of Investigation (“FBI”) identified Dzhokhar and Tamerlan Tsarnaev as potential suspects responsible for carrying out the attack.[3] Dzhokhar was nineteen at the time and his brother, Tamerlan, was twenty-six.[4] The two of them fled Boston, leading to a manhunt that ended with two more deaths—one being Tamerlan himself.[5]Dzhokhar was arrested and indicted for thirty crimes, including seventeen capital offenses.[6] During jury selection, the District Court for the District of Massachusetts declined to include a proposed question in a 100-question screening form requiring each juror to disclose what they already knew about the case from the media and other sources.[7] This question aimed to reduce prejudice resulting from the vast media coverage of the bombings; however, the judge ruled that it was too unfocused and unguided, therefore warranting its exclusion from the questionnaire.[8]

At trial, Dzhokhar’s defense team argued that Tamerlan was responsible for both radicalizing Dzhokhar, and pressuring him to help carry out the bombings.[9] During Dzhokhar’s lawyer’s opening statement in the District Court, she admitted that Dzhokhar committed the acts he was accused of, and agreed that he should be held responsible for them, but stated that “he came to his role by a very different path than suggested to you by the prosecution: a path born of his brother, created by his brother, and paid by his brother.”[10] The jury found Dzhokhar guilty on all thirty counts and the Government sought the death penalty.[11]

During the sentencing stage, Dzhokhar sought to introduce evidence that Tamerlan allegedly participated in a triple homicide in Waltham, Massachusetts in 2011 in an attempt to further demonstrate Tamerlan’s violent nature and Dzhokhar’s vulnerability to influence by his brother.[12] The District Court excluded this evidence, finding that it was “without any probative value” and would be “confusing to the jury.”[13] Without the option to consider this evidence, the jury decided to impose the death penalty for six of Dzhokhar’s crimes.[14] The First Circuit Court of Appeals vacated Dzhokhar’s death sentence, finding that the District Court abused its discretion in excluding the proposed jury question regarding media exposure and in excluding the hearsay evidence about Tamerlan’s alleged involvement in the triple murder.[15] This month, however, the Supreme Court disagreed, reinstating Dzhokhar’s death sentence.[16] The Court determined that the Court of Appeals improperly vacated his death sentence for two reasons.[17] First, Justice Thomas wrote that the Court of Appeals erred in ruling that the District Court abused its discretion regarding the juror questionnaire.[18] A trial judge has broad discretion in selecting a jury, including deciding which questions prospective jurors should be asked.[19] The Supreme Court reasoned that excluding the question was not an abuse of discretion because the judge considered the question unfocused, and other questions in the questionnaire would effectively address the media exposure issue.[20] Second, the Supreme Court found that the District Court’s decision to exclude the evidence alleging Tamerlan’s involvement with the triple homicide was proper.[21] The Court reasoned that the evidence “lacked probative value, would confuse the jury, and ultimately would be nothing more than ‘a waste of time.’”[22]

Under the Federal Death Penalty Act (“FDPA”), a defendant found guilty of a crime warranting the death penalty may present mitigating evidence during sentencing.[23] In presenting this evidence, the defense is not required to abide by the rules governing evidence of admissibility at criminal trials as long as its probative value is not outweighed by the dangers of creating unfair prejudice, confusing the issues, or misleading the jury.[24] The District Court’s decision to exclude the evidence of the triple homicide was based on the conclusion that the probative value of the evidence (in this case, the District Court said there was no probative value at all) was outweighed by the risk of confusing the jury.[25] It can be inferred that because the other two men allegedly involved in the triple homicide were dead at the time of Dzhokhar’s sentencing, there was no risk of prejudice in bringing this evidence in.

In upholding the District Court’s decision that this evidence has no probative value, the Supreme Court fails to recognize the gravity of imposing the death penalty. While on its face Tamerlan’s actions may not be directly probative for Dzhokhar’s trial, Dzhokhar’s theory of mitigation rested almost entirely on the ways in which Tamerlan influenced him. Evidence that Tamerlan was potentially guilty of other serious, violent crimes that tended to show his involvement with Islamic extremism is highly probative in the context of showing that Dzhokhar was indoctrinated by his older brother.

Throughout the history of our country’s criminal legal system, the death penalty has remained a highly contentious issue. Death sentences have declined by over eighty percent in the past twenty-five years, which reflects the population’s declining support for the practice.[26] Massachusetts abolished the death penalty in 1984 for state-level offenses.[27] The parents of an eight-year-old boy who died as a result of the bombings even asked federal prosecutors to drop the death penalty for Dzhokhar.[28] In his campaign, President Biden promised to work toward eliminating the death penalty at the federal level.[29] Despite the societal shift against death penalty sentences and critiques about Dzhokhar’s death penalty sentences specific to his case, the Supreme Court still found the sentencing in Dzhokhar’s case to be appropriate.

While the Supreme Court is not required to follow Massachusetts’ precedent or abide by an administration’s policy goals, this decision reflects a concerning disconnect with the direction the country is advancing toward regarding death penalty cases.[30] There is no doubt that Dzhokhar Tsarnaev’s actions were horrendous, with far-reaching and in some cases, lifelong effects. But the Supreme Court needs to realize what the majority of the country has concluded: the death penalty is obsolete.[31]

[1] Boston Marathon Terror Attack Fast Facts, CNN (last updated Mar. 6, 2022, at 9:10 AM),

[2] See id. (providing a timeline of the Boston Marathon bombing).

[3] Brian Ross, Boston Bombing Day 5: Never-Before-Heard 911 Call That Ended It All, ABC News (Apr. 22, 2016, 6:00 AM), (detailing the timeline of the FBI’s initial investigation).

[4] Boston Marathon Terror Attack Fast Facts, supra note 1.

[5] Brian Ross, Boston Bombing Day 4: The Firefight: ‘I Thought We Were Gonna Die’, ABC News (Apr. 21, 2016, 6:00 AM), (describing Tamerlan’s death).

[6] Indictment at 1, United States v. Tsarnaev, 1:13-cr-10200-GAO, ECF No. 58 (June 27, 2013) (indicting Dzhokhar on thirty counts).

[7] United States v. Tsarnaev, No. 20-443, slip op. at 4-5 (U.S. Mar. 4, 2022) (describing the prospective juror questionnaire).

[8] See id. at 5 (explaining the District Court’s decision to exclude the open-ended question Dzhokhar proposed).

[9] See id. (describing Dzhokhar’s mitigation theory that he “was not sufficiently culpable to warrant the death penalty because his older brother had pressured him to participate.”).

[10] Transcript of Opening Statement at 10, United States v. Tsarnaev, 2015 WL 3945832, at *1 (No. 13-10200-GAO) (providing Judy Clarke’s opening statement in Dzhokhar’s jury trial).

[11] Verdict at 1, United States v. Tsarnaev, 1:13-cr-10200-GAO, ECF. No. 1261 (April 8, 2015) (finding Dzhokhar guilty on thirty counts); Tsarnaev, slip op. at 5 (stating that the Government argued for the imposition of the death penalty).

[12] Tsarnaev, slip op. at 5-7 (describing the mitigating evidence that Dzhokhar wanted the court to consider in his sentencing).

[13] Id. at 7 (describing the trial judge’s decision to exclude the triple homicide).

[14] Judgment in a Criminal Case at 1, 5, United States v. Tsarnaev, 1:13-cr-10200-GAO, ECF. No. 1480 (June 24, 2015) (sentencing Dzhokhar to death on six counts).

[15] U.S. v. Tsarnaev, 968 F.3d 24, 24, 106 (1st Cir. 2020) (vacating Dzhokhar’s death sentence).

[16] Tsarnaev, slip op. at 1 (reversing the Court of Appeals’ decision to vacate Dzhokhar’s death sentence).

[17] See id. at 8.

[18] Id. at 8-11.

[19] See id. at 8 (explaining that a trial court, as long as it ensures jurors are unbiased and unprejudiced, have broad discretion in the jury selection process).

[20] See id. at 9-11 (detailing the trial judge’s decision and describing the other questions that were included in the jury questionnaire).

[21] See id. at 13 (stating that a district court may exclude information when its probative value is outweighed by the danger of creating unfair prejudice, misleading jurors, or confusing the issues).

[22] Id. at 14.

[23] 18 U.S.C. § 3592.

[24] Id. § 3593(c).

[25] Tsarnaev, slip op. at 7 (stating that the trial judge determined the relevant evidence was without any probative value and would be confusing to the jury).

[26] Sentencing Data, Death Penalty Information Center, (last visited Mar. 10, 2022) (explaining the country’s trends in imposing the death penalty).

[27] State and Federal Info: Massachusetts, Death Penalty Information Center, (last visited Mar. 10, 2022) (outlining Massachusetts’ history with the death penalty).

[28] Bill & Denise Richard, To End the Anguish, Drop the Death Penalty, The Boston Globe, 16, 2015, at 10:30 PM) (publishing an open letter from the parents of Martin Richard, who was killed in the Boston bombing).

[29] The Biden Plan for Strengthening America’s Commitment to Justice, Joe Biden, (last visited Mar. 10, 2022) (outlining President Biden’s plans to improve the country’s criminal justice system).

[30] See generally Andrew Cohen, The Eighth Amendment, the Death Penalty, and the Supreme Court, Brennan Center, (Feb. 22, 2022) (discussing the Supreme Court’s prior decisions and the public’s decreasing support of the death penalty); “Random and Unjust,” “Barbaric” and “Ineffective”: Editorials Call for End to Death Penalty, Death Penalty Information Center, (Jan. 7, 2022) (describing the lack of support for the death penalty by newspaper editorial boards across the country).

[31] Id.

Posted in

Share this post