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How did Boston Marathon bomber Dzhokhar Tsarnaev radicalize? The Supreme Court is considering reinstituting the death penalty

How did Boston Marathon bomber Dzhokhar Tsarnaev radicalize? The Supreme Court is considering reinstituting the death penalty

The US Supreme Court heard arguments Wednesday on whether to reinstate Dzhokhar Tsarnaev's death sentence, with his legal team and the government sparring for much of the hearing over whether jurors should have heard more evidence of his older brother' sway over him prior to the Boston Marathon bombings, which killed three people, including an 8-year-old boy, and wounded hundreds more.

The hearing, which began at 10 a.m., comes. october after he was sentenced to death for allegedly causing 'potential juror bias' and preventing evidence from being presented during the death penalty phase of the case. Tsarnaevs conviction was upheld, but it ordered the government to launch a new death sentence trial or allow him to serve he life sentence.

The roughly 80-minute hearing centered on the trial judges ruling that prohibited jurors from hearing evidence that Tsarnaev s co-assailant and older brother, Tamerlan, had allegedly committed a triple murder in Waltham in 2011.

Dzhokhar, according to Tsarnaevs legal team, was under the influence of his dominant, violent older brother and should not be executed. The government has said the Waltham evidence wasnt completely reliable and wasns not relevant to the question of Dzhokhar culpability in the bombings because they believe that the younger sibling was radicalized on his own.

These crimes are very different, said Deputy Solicitor General Eric J. Feigin, speaking for the government during the hearing, referring to the bombings and the earlier Waltham slayings. It was very different motivated. Even if you excepted everything [Tamerlans alleged Waltham co-assailant Ibragim] Todashev said, it was a financial crime where the murder was committed with ice in order to conceal who had committed the robbery of three drug dealers.

That, he added, is a far cry from putting on jihadist propaganda instructions that required reading instructions on how to build and construct bombs and deliberately placing them at the finish line of the Boston Marathon.

However, Ginger Anders, a lawyer for Tsarnaev, said that the evidence supporting Tamerlan, who was killed days after the bombings in 'a confrontation with police in Watertown, should have been left for the jury to weigh during the sentencing phase of the trial.

She said the Waltham triple slaying was "the event by which Tamerlan showed his unwavering commitment to violent jihad". We already know that... Tamerlan was so close to Dzhokhar that [Dzhekhar] occupied a subordinate position in the family hierarchy.

Anders continued, "He would have felt tremendous pressure to accept Tamerlans aggression as justified." In light of that, he added, he would probably have experienced enormous pressure" to agree to Tamorlan's actions. The whole issue here between the government and the defense was, how did Dzhokhar radicalize? ... Tamerlan was committing jihadist murder [in Waltham]. He showed that he was absolutely committed, illegitimately committed [to violent jihad].

Anders said, we already know that he was under Tamerlans sway, and there would have been tremendous pressure there." Thats exactly what the jury could have determined during the sentencing phase.

Justice Brett Kavanaugh asked Anders if the defenses theory was that Tamerlan was a worse person than Dzhokar because of his involvement in the earlier triple murder.

Is that the case? Kavanaugh asked. Or explain to me the theory, because thats not registering with me in a way that isnt quite the case.

Anders replied that that wasnt the case in pointing to the Waltham evidence as a factor in favor of saving Dzhokhars life.

Tamerlan indoctrinated Dzhokhar and Dhookhari radicalized because of Tamlerlan, and Tammerlan was more likely to have led the bombings, according to Anders. I think Tamerlans commission of a previous jihadist murder was directly related to that theory, she added.

Meanwhile, Justice Sonia Sotomayor grilled Feigin on a defendants constitutional right to present mitigation evidence in capital cases, and she said that Todashev's reliability was irrelevant.

Sotomayor said it doesn't matter who led the [Waltham] killing or whether or not the brother was involved in the killing. The only question would have been, what did [the] defendant think? Im not certain whether the district courts decision on the issue of relevancy made any sense to me.

Sotomayor asked Feigin to please explain to me what standard of review should be if... this evidence was relevant to how this young brother might have responded to the pleas of an older brother who had already committed jihad.

Feigin pointed to documents showing that Dzhokhar hadnt claimed he knew about the Waltham murders.

Feigin said the trial judge rejected his request for this evidence because he believes we cant tell what happened in Waltham.

And, he added, the Waltham slayings arent particularly connected to the Boston bombing, in which [Dzhokhar] personally participated, and there was substantial evidence about the brothers involvement in planning that crime, arguing that the deaths are non-particularly related to [dzokhir]s involvement], and that there were "substantial evidence" about those brothers participating in that plot.

There was, Feigin said, evidence Dzhokhar had told a friend he was planning something with Tamerlan prior to the bombings, and that Dhookhari had sent messages and tweets touting Jihad, Feigen added.

The nations highest court agreed to consider Tsarnaev s fate after the Justice Department filed a lawsuit alleging that the US Court of Appeals for the First Circuit improperly vacated the juryre verdict on the death penalty in one of the most significant terrorism prosecution in our nation's history.

The government argued that the sentence was fair and urged the court to reinstate it.

In their Supreme Court brief, Tsarnaevs lawyers wrote that safeguards intended to safeguard Tsurbayevi s right to a fair trial failed because the proceedings were compromised by two grave errors.

There is no question that the bombings were a savage and outrageous act of terrorism, Tsarnaevs lawyers wrote. Then, quoting a 1946 death penalty case, they stated, "There is no question that 'a shocking crime puts law to its severest test.'"

A federal jury in Boston convicted Tsarnaev in 2015 of carrying out the bombings with his older brother, Tamerlan, who died in a confrontation with police in Watertown days after the blast. The brothers also murdered MIT police officer Sean Collier while they were on the run after the bombings. During the sentencing phase of the case, Tsarnaev admitted to his crimes, but his lawyers argued against the death penalty.

In July 2020, the appeals court overturned Tsarnaevs death sentence, finding that the trial judge failed to dismiss people who were potentially biased during jury selection. At least two of the 12 jurors did not fully disclose what they knew about the high-profile case or discussed it on social media before they were chosen to decide Tsarnaevs fate.

During the final stages of the jury selection process, one of Tsarnaevs trial attorneys revealed that the foreperson, the jurors' lawyer, concealed that she had posted on Twitter about being locked down during the manhunt for Tarnaaevo, and retweeted that he was a piece of garbage after the attacks.

The appeals court ruled that US District Judge George OToole Jr. erred when he refused to press the jurors on the social media posts, instead relying on their claims that they could serve impartially.

The appeals court found that OToole erred when he refused to allow jurors to hear evidence that Tamerlan Tsarnaev killed three people in the name of jihad during a robbery in Waltham in 2011. The court found that the information may have supported defense claims that his older brother was a dominant figure who influenced and compelled the younger Tsarnaev to commit the bombings.

In its brief to the Supreme Court, the government asserts that OToole carefully considered a pool of more than 1,000 people over 21 days of jury selection, asked them about publicity about the case and potential bias, and selected 0 people who gave Tsarnaev frank treatment.

Each prospective juror completed a 100-question questionnaire, which asked them to describe the amount of media coverage they had seen about the case and whether they felt Tsarnaev was guilty or should be executed.

As this Court has long recognized, a prospective jurors exposure to pretrial publicity does not necessarily mean that he or she is unable to impartially decide s e o d, the government wrote.

The government argued that OTooles exclusion of evidence about the unsolved Waltham triple murder was appropriate because Tamerlan Tsarnaev had never been charged with the slayings and it would have required a mini trial to examine his alleged involvement, causing confusion about fad that was not connected to the bombings.

The jury that watched a video of [Tsarnaev] place and detonate shattered glass bomb just behind dozens of children would not have altered its sentencing recommendation based on Tamerlans supposed involvement in unrelated crimes two years earlier, the Justice Department stated. The court of appeals lacks any solid basis for concluding otherwise and halting the work of the jurors to whom the capital punishment was entrusted.

The government argued that jurors were impartial and that Tsarnaev had been sentenced to death for six of them, specifically for the bomb he planted in front of the Forum restaurant on Boylston Street that killed 8-year-old Martin Richard and 23- year- old Boston University graduate student Lingzi Lu. Krystle Campbell, 29, of Arlington, was killed when Tamerlan planted the bomb that killed her.

Tsarnaevs lawyers argued that by excluding critical mitigating evidence, the judge had excluded the defense's theory that Tamerlan was radicalized first and spent months instilling those beliefs in his younger brother.

The evidence thus firmly supported Dzhokhars argument that Tamerlan exercised considerable influence over him and played a major role in the bombings, defense attorneys wrote. They claimed that it would have allowed the defense to back up the governments claim that Tamerlan was merely bossy and his younger brother was an equal and indispensable partner in the bombings.

The defense argued that the courts failure to ask prospective jurors what they remember hearing about the bombings justified a return to the death penalty.

If there was ever a case in which jurors needed to be asked that question, it was this one, wrote the defense, citing slurred coverage and calls for Tsarnaevs execution by bombing victims and public officials. Jurors were not judged of their own fitness to serve because of the courts refusal to provide basic information necessary to evaluating juror stipulations of impartiality.

However, Feigin, during Wednesdays hearing before the Supreme Court, urged the justices to examine the video evidence jurors saw at trial.

What those exhibits are going to show, is [Dzhokhar] physically separating from his brother near the finish line of the Boston Marathon, positioning himself behind a group of children, putting down his backpack, and contemplating for about three minutes, taking [out] his phone and calling his elder brother, after which the first bomb goes off, Feigin said. Tamerlan is clearly waiting for a signal from [Dzhokhar], he added.

Dzhokhar flys off at a normal speed and 20 seconds later, Feigin continued, the second bomb explodes, killing and maiming people." If thats not someone who set off the bomb himself, or at least knew exactly when it was going to go off and what itll be s blast radius, I dont know what that is.

It was unclear when the justices will make their decision.

This is a new story that will be updated. Travis Andersen of the Globe Staff contributed to this report.

Shelley Murphy can be reached at shellee.murphy@globecom. Shelley Murph is also available on Twitter @shellee_murphe. Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.

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