The NPR Politics Podcast - The Boston Marathon Bomber Is Undoubtedly Guilty, But Should He Be Executed?

Episode Date: October 14, 2021

The Supreme Court heard arguments for and against reinstating the death penalty for Dzhokhar Tsarnaev, the Boston Marathon bomber. President Biden himself has argued against ever using the death penalty, but here his administration is arguing that Tsarnaev should receive the harshest punishment.This episode: White House correspondent Asma Khalid, legal affairs correspondent Nina Totenberg, and WBUR's Deborah Becker.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Kathy from Athens, Georgia. I'm a mobile vet, and I just made my weekly visit to a local animal shelter, where I looked at a sick kitten and vaccinated 12 dogs and cats against rabies. This podcast was recorded at 2.13 p.m. Eastern Time on Thursday, October 14th. Some things may have changed by the time you hear it. For instance, maybe some of my patients will be in their forever homes. Okay, here's the show. Oh, gosh, that took me a moment to process what she was saying, forever homes.

Oh, it's good news for them. Hey, everyone, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. And I'm Nina Totenberg. I cover the Supreme Court. And today on the show, we're going to talk about the Boston Marathon bomber and how his case and whether he should receive the death penalty seems to have created rare consensus between conservative justices of the Supreme Court and the Biden administration. Yesterday, the case was heard before the Supreme Court, and we're going to get into the arguments in just a moment. But first, let's bring in my old colleague, a fantastic reporter from Boston's NPR station WBUR, Deb Becker.

Hey, Deb. Hey, Asma. Thank you. I am so glad that you're able to join us. Nice to hear you. So, Deb, back in 2013, Jahar Tsarnaev and his older brother Tamerlan planted pressure cooker bombs near the finish line of the Boston Marathon, killing three people and wounding more than 200 others. I was at the race that day and then, you know, quickly had to put on my journalist hat and start reporting. I will say it remains one of the most difficult stories I have ever covered in my career. And the day is still, you know, really seared into my mind. I'm sure it's

still seared into yours as well. So can you remind folks, because it has been a number of years now, just what exactly happened on that day? Yeah, it was truly unforgettable. I was working that day as well. I was in the studio. The bombs went off near the finish line of the marathon shortly before 3pm. And at first, you know, it wasn't clear what was happening. We just knew that there were explosions and chaos. And when they exploded just seconds apart and within about 100 yards of each other, it was devastation. Three people were killed. Hundreds of people were hurt, some of them very seriously.

Some people lost limbs. Some people lost their hearing. People were rushed to some of the marathon medical tents if they didn't appear to be too seriously hurt. But ambulances and makeshift ambulances were used to try to get people to who they knew were at the finish line and try to make sure that they were okay. So it was chaos and a very, very tense, dramatic time. And it really did affect the city in a lot of ways. I think one thing important for folks to know who don't live in Boston is that really the Marathon Monday is a public holiday in the city. The city shuts down and it's a huge kind of festival atmosphere. And so it did feel like so many people in the city were affected by this, whether or not they were physically running the race that day. Nina, I want to get to the case itself.

Jahar Tsarnaev was found guilty back in 2015. That's not the issue here. The question is whether he should be sentenced to death. And the state of Massachusetts has no death penalty, but this was a federal trial, and a number of the charges that Tsarnaev was found guilty of carry a death sentence. Yes, six of the 30 crimes for which he was convicted carried a death sentence, and in those, the jury imposed the death sentence for just those six. The Federal Appeals Court in Boston overturned the death sentences, and on Wednesday, the justices focused on the trial judge's refusal to allow evidence

that the defense said would have shown that the younger brother, Zohar, who was 19 at the time of the bombing, was under the influence of his brother, Tamerlan, who was seven years older, stronger, bigger, and who was killed after a shootout with police shortly after the bombing. Specifically, the judge would not allow the jury to hear evidence that allegedly would have showed that the older brother, Tamerlan, two years before the bombing, slit the throats of three men in Waltham, Massachusetts, an act of jihad on the anniversary of the 9-11 attack. And Justice Elena Kagan questioned the omission of that evidence at the penalty phase of the trial, when the defense is supposed to be allowed considerable leeway

in showing why the defendant is in some way less culpable and not deserving of the death penalty. At that point, it's the job of the jury, isn't it, to decide on the reliability of the evidence? And Justice Stephen Breyer, another of the court's three liberals, seemed to agree. They had no other defense. They agreed he was guilty. Their only claim was, don't give me the death penalty because it's my brother who is the moving force. So to be clear, the main argument of the defense here is that Dzharsar Naev was under the influence of his brother

and that his brother was really the strong person, the strong character in this whole story. Is that right? That's right. And that the evidence of the previous killing would have shown that the older brother was supremely violent, even intimidating and influential on his younger brother. But the jury never got to hear that evidence because the judge kept it out. Deb, how does this track with what you know about the brothers' relationship, the idea that Jahar was under the influence of his big brother? Well, it does appear that Tamerlan became almost a custodian to Jahar after their parents split up

and they both moved overseas. At the time of the bombing, Jihar was a college student at the University of Massachusetts at Dartmouth. They lived together, though, in Cambridge, and there appears to be more of a history of radicalization for Tamerlan, the older brother, and there does appear to have been very strong radical thinking on the part of both of them. So Nina, let's get back to these murders in Waltham, the suburb of Boston. What's the rebuttal here? Why do folks not think this evidence should have been admitted in court? Well, the government argued that it shouldn't be admitted because it was too speculative. We don't really know what happened. And we might want to say that that triple murder in Waltham has never been

solved. The FBI says it learned of Tamerlan's alleged involvement while agents were questioning one of Tamerlan's associates in Florida after the bombings. But then FBI agents shot the associate when he attacked them during questioning. So it's an open question about what exactly happened regarding that triple murder in Waltham. And you'll hear, for example, hear Justice Brett Kavanaugh make that point and other conservative members of the court made it as well. There's been insufficient evidence of who did what. And therefore, the theory that Tamerlan was the lead player in that is entirely, well, is unreliable. And Chief Justice Roberts said something to that effect, too.

There were no witnesses available. They were both dead. Basically, they're saying, how do we know what happened in Waltham? And this is just a sideshow that will distract the jury. And that's the point, really, that the government was making. And they got a lot of support from the court's six conservative justices and a lot of intense questioning from the court's three liberal justices. All right. Well, we are going to take a quick break. And when we get back, we'll talk more about why the Biden administration is pushing the death penalty in this case. And we're back. Nina, one thing that we need to talk about here is President Biden. When he was

candidate Joe Biden, he had promised to work on eliminating the death penalty. That pledge is actually still up on his campaign website. And then this summer, the Department of Justice issued a temporary moratorium on federal executions. So it feels like in theory, the Biden administration opposes the death penalty. And yet here is Biden's Department of Justice asking to put this man to death. And I am, frankly, having a really hard time making sense of that. It feels rather contradictory. Yeah, and it's something that Justice Amy Coney Barrett noted as well.

And here she is sticking it to Eric Fagan, who was the government's lawyer, the deputy solicitor general. And if you win, presumably that means that he is relegated to living under threat of a death sentence that the government doesn't plan to carry out. So I'm just having trouble following the point. You know, the White House press secretary was asked about this apparent contradiction earlier in the week, and she essentially just deferred the question back that it's a matter for the Department of Justice. A White House official referred me back to a statement that an official put out back in June, basically saying in part that President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of

justice and fairness. And so, Nina, I guess I am still left confused, though. Did the Biden DOJ feel obliged to push the death penalty in this case? And if so, I guess, is this a matter of them seeing the particular case of Jihar Tsarnaev as a matter of, you know, national security? You know, there have been time and again, I would say, exceptions around terrorism acts committed by Muslims. I mean, is that this case? Are there any broader implications, though, in the decision that will be made for how other possible death penalty cases will be seen? I think not. This was a case in which the Trump administration, almost on the way out the door, when the appeals court reversed the death sentences, the Trump administration expedited an appeal to the Supreme Court, filed briefs.

And in order to undo that, that is far more difficult for an incoming administration than affirmatively saying, I've ruled, I've looked at this, and I'm going to, I've decided I'm going to do X or Y. They inherited this appeal, and they decided not to withdraw the government's position, because there are lots of cases in which the government may want to in the future, seek the death penalty or harsh penalties. And there are implications for how this is decided. Therefore, they didn't want to walk away from it. But I don't think you can really say they're embracing the death penalty either. You know, Deb, I want to bring this all back to Boston, where the events began. How are people responding to what the Biden administration is doing here about the fact that this case is in front of the Supreme

Court? You know, I did some reporting at the time that found a majority of Bostonians did not want the death penalty for Jarhar Tsarnaev. Right, right. And I would say, you know, a majority of folks probably do not want the death penalty. But there are many who do, especially some of the marathon bombing victims. They say if this type of case where someone deliberately planned to hurt or kill hundreds of people and succeeded in doing so, then if this doesn't warrant the death penalty, then what kind of case does? And so there are people who would support the death penalty in this instance, even if they might not consider themselves death penalty supporters. But there are many others

who don't, and including the family of the youngest victim of the marathon bombing, eight-year-old Martin Richard, his family actually wrote an essay in the Boston Globe and said, you know, the years of appeals and all the legal wrangling that come with a death penalty case will just force them to relive the most painful day of their lives, the day that took away their eight-year-old son and maimed their seven-year-old daughter. So they have asked to not put the death penalty on the table and just make sure that Zahar Zarnaev is never released from prison. All right, well, we can expect a decision in this case before the end of the term. Deb Becker from WBUR in Boston, thank you so much for joining us.

Thank you for having me. And that's a wrap for us for today. I'm Asma Khalid. I cover the White House. And I'm Nina Totenberg. I cover the Supreme Court. And thank you all, as always, for listening to the NPR Politics Podcast.