Liberal Judge Kagan and Conservative Kavanaugh violate protocol and verbally clash over his questioning of her argument during SCOTUS hearing for Boston Bomber’s death penalty
- Supreme Court heard arguments on whether or not to reinstate Dzhokhar Tsarnaev’s death sentence on Wednesday
- He was convicted of killing three people and sentenced to death
- The death sentence was overturned on appeal last year
- Liberal judges suggested the original court made a mistake in excluding evidence
- Judges Kagan and Kavanaugh briefly clashed over the mitigating evidence
Liberal judge Elena Kagan clashed with her conservative colleague Brett Kavanaugh during a Supreme Court hearing on the Boston Bomber on Wednesday, when they heard arguments over whether an appeals court was warranted to overturn Dzhokhar Tsarnaev’s death sentence.
It was a rare breach of protocol as liberal and conservative wings clashed over punishment for Tsarnaev’s role in the 2013 attack that killed three people.
The court’s conservative majority was sympathetic to the Justice Department’s challenge to a 2020 lower court ruling that upheld his conviction but overturned his death sentence.
The three Liberal judges asked tough questions, but it seemed unlikely enough of their six Conservative colleagues would join them in getting a new trial to determine whether he would face life or the death penalty.
Sparks flew as the judges pondered how the court ruled out possible mitigating evidence.
Supreme Court justices may disagree, but they rarely criticize each other. On Wednesday, Judge Elena Kagan clashed with Judge Brett Kavanaugh as they wrestled over details of extenuating evidence in the trial of Boston bomber Dzhokhar Tsarnaev
Dzhokhar Tsarnaev was 19 at the time of the attack. He was found guilty of 30 charges and sentenced to death in 2015. The death sentence was overturned in 2020
Three people were killed and 160 injured when two bombs exploded near the finish line of the 117th Boston Marathon in 2013
Judges Sonia Sotomayor and Kagan questioned government attorney Eric Feigin why the defense was not allowed to include evidence that Tsarnaev’s brother Tamerlane may have been involved in a triple murder two years before the bombing.
Evidence would have supported Tsarnaev’s defense that he was led by his domineering older brother.
Kagan asked Feigin to believe the evidence for the triple murder was strong and to consider what the court would have done under those circumstances.
“Your whole case rests on the idea that the evidence just wasn’t strong enough,” she said. “How is the court’s job to assess, let alone decide, that question?”
But Kavanaugh disputed that line during his interrogation, suggesting that the Liberal judges were wrong. The reason the evidence was omitted, he said, was that it was weak, so there was no point in asking the state attorney to make assumptions to the contrary.
He continued: ‘The premise was taken away…’
“The premise was taken away because that was the jury’s role,” Kagan interrupted.
It was a rare moment of disagreement. Judges often disagree, but they avoid almost any hint that they are criticizing each other
Chief Justice John Roberts was the only one of the court’s conservatives to indicate that he could potentially side with Tsarnaev – who is 28 but 19 at the time of the attack – in the triple murder issue.
Roberts said it should be easier to admit evidence during proceedings that would determine whether someone is sentenced to death than for other reasons.
The court’s conservative majority appeared sympathetic during the case’s arguments against the Justice Department’s challenge to a 2020 lower court ruling that upheld Tsarnaev’s conviction but overturned his death sentence.
The appeals court also ruled that U.S. District Judge George O’Toole, who presided over the original trial, also fell “short” in screening jurors for possible bias following wall-to-wall coverage of the bombings.
There was little discussion on that issue during Wednesday’s speech.
Tsarnaev’s lawyers have said O’Toole’s decisions have stripped him of his constitutional right to a fair trial and violate a US statute that describes the procedure for imposing the death penalty under federal law.
Asked by Conservative Judge Amy Comey Barrett what the government’s “endgame” was regarding Tsarnaev’s execution in light of the current federal moratorium on execution, Feigin said the Biden administration believed the jury was up to a ‘final verdict’ had been reached and that the appeals court was wrong. quash that verdict.’
The Tsarnaev brothers detonated two homemade pressure cooker bombs at the finish line of the Boston Marathon on April 15, 2013, killing a police officer days later.
Tamerlan Tsarnaev died after a shootout with police.
Jurors convicted Dzhokhar Tsarnaev on all 30 counts he faced and determined he deserved execution for a bomb he planted that killed Martin Richard, 8, and Chinese exchange student Lingzi Lu, 23. Restaurant manager Krystle Campbell, 29, was killed by the second bomb.