Courthouse Steps Decision Webinar: United States v. Tsarnaev

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Ryan Lacey:  Hello and welcome to The Federalist Society’s virtual event. This afternoon, April 21, 2022, we discuss "Courthouse Steps Decision United States v. Tsarnaev." My name is Ryan Lacey, and I’m the Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of our expert on today’s call.

 

Today we are fortunate to have an excellent speaker in Kent Sheidegger, whom I will introduce briefly. Kent is the Legal Director and General Counsel at the Criminal Justice Legal Foundation, where he has served since 1986. He also served as Chairman of the Criminal Law Practice Group at The Federalist Society from 2003 to 2005. After receiving his degree in physics from New Mexico State University, Kent served six years in the United States Air Force as a nuclear research officer. And he earned his law degree from The University of the Pacific, McGeorge School of Law.

 

After Kent gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q & A feature at the bottom of your screen, and we will handle questions, as we can, towards the end of today’s program. With that, thank you for being with us today. Kent, the floor is yours.

 

Kent Sheidegger:  Thank you. On March 4, the US Supreme Court decided the case of the surviving Boston Marathon bomber Dzhokhar Tsarnaev. The facts of the crime are very well known. The defendant and his older brother, Tamerlan, set off bombs made from pressure cookers at the 2013 Boston Marathon. There is no doubt of guilt in this case. The defendant is on video placing his bomb behind a group of children watching the race. Nor is there any doubt that the defendant was a voluntary participant in this crime. He remained proud of what he had done even after his brother was dead.

 

The defendant was convicted of numerous crimes in federal court and sentenced to death. On appeal, the First Circuit overturned his sentence but not his conviction. There were two grounds for reversal before the Supreme Court in its review of the case. One had to do with the questioning of prospective jurors during jury selection, and the other had to do with evidence excluded from the penalty trial.

 

Given the notoriety of the crime, it is no surprise that jury selection was difficult and contentious. The trial judge gave the jurors a long questionnaire including most of the 100 questions the parties had proposed but declined to ask the jurors to list all the facts that they had read or seen in media reports. The judge believed that this question was too unfocused and would produce an unmanageable flood of data.

 

In the 1991 case of Mu’Min v. Virginia, the Supreme Court held that the Sixth Amendment does not require this kind of questioning. There were hints in old cases in the mid-1970s and early 1980s that the Court might set stricter requirements for federal trials under its nebulous supervisory power, but it never did. The idea that there might be stricter requirements in federal court has largely faded in more recent years. In the federal case of Skilling v. United States, a wealthy defendant who could afford the priciest legal talent did not even make a supervisory power argument at all.

 

The First Circuit decided that the trial judge had erred in not following a strict rule established in its own 1968 supervisory power case. It’s called Patriarca v. United States. This case had never been mentioned at all in the trial court or in the First Circuit’s own pretrial reviews of jury selection, yet the First Circuit still believes that this was reversible error. The Supreme Court was not impressed. The majority opinion by Justice Thomas recited the Court’s precedence affirming broad discretion in the trial judge in how to conduct jury selection and its precedent in Mu’Min, rejecting any constitutional basis for a rigid rule on inquiry into exactly what the jurors had seen in the media.

 

The opinion also noted the very extensive and thorough selection process, describing it in some detail. Regarding supervisory power, the Court expressed some skepticism that courts of appeals have any such power at all. Without resolving that question, the Court noted that supervisory and power rules cannot contradict federal statutes or federal rules, and then held, “Lower courts cannot create prophylactic supervisory roles that circumvent or supplement legal standards set out in decisions of this Court.” That holding may kill off the supervisory power in practice. If a supervisory power rule cannot supplement the standards in Supreme Court precedents, there does not seem to be much point in them.

 

There is also little need for them now that we have the extensive and frequently amended rules under the Rules Enabling Act. The deliberative process provided by that act seems a better way to make progress toward best practices than having appellate panels announce new rules out of the blue while deciding cases.

 

Justice Barrett had been highly critical of the supervisory power while a law professor, so it was no surprise that she added a concurring opinion more critical than the majority. There was no expressed dissent on this part of the opinion, and the three dissenting justices dissented on the evidence ground only.

 

The evidence at issue in the penalty phase was supposed to support the defendant’s claim that his brother was the leader and influenced him to participate. He did not claim a duress defense that he was forced to participate. Nor was his physical participation in the criminal act minor, as in the cases, for example, of getaway car drivers in robberies where another robber kills someone. In this case, the defendant personally planted one of the bombs that killed and maimed people, and he intended that result. So the mitigating circumstance was weak to begin with.

 

The evidence in question was that of an accomplice — a statement by an accomplice — in another murder years earlier who told FBI agents that the older brother was the driving force in that crime, and the accomplice did not want to kill the victims. A hearsay statement of one participant to a crime seeking to shift blame to the other is one of the weakest forms of evidence. No further evidence on who actually did what was available by the time of the defendant’s trial because all the participants were dead.

 

Under the Federal Death Penalty Act, the federal rules of evidence do not apply to the penalty trial. But the Act includes a single rule similar to Rule 403. The trial judge may exclude evidence, “If its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Confusing the issues includes having a mini trial on a side issue that is not directly at issue in the present case.

 

If this were a straight Rule 403 issue, this would be an exemplar of the kind of issue where appellate courts defer to the judgment of the trial judge. The judge in this case found the evidence would have no probative value and be confusing to the jury, which is just what the statute provides for exclusion.

 

The argument to the contrary is based on the idea that the Eighth Amendment requires admission of otherwise inadmissible evidence if it has any relevance at all to mitigation in the penalty phase of a capital case. This argument is based on an expansive interpretation of the 1978 case of Lockett v. Ohio. In Lockett, the Court invented out of whole cloth a rule that the sentencer in a capital case must be allowed to consider any circumstance of the crime and any aspect of the defendant’s character or record that the defendant proffers as mitigating. The cases since then have gone back and forth, as shifting majorities took either a narrow or an expansive view of Lockett’s requirements.

 

Chief Justice Roberts has aptly called this body of case law, “A dog’s breakfast of divided, conflicting, and ever-changing analyses.” Justice Thomas has been a leading voice for the narrower view of Lockett, and his opinion for the six-justice majority he notes in a footnote that, “Some have argued that these cases and their progeny do not reflect the original meaning of the Eight Amendment.” One of those ‘some’, of course, is Justice Thomas himself. The footnote continues that neither party has asked the Court to revisit Lockett, so it will not. But this footnote, in an opinion of the Court, not a concurring opinion, is the clearest signal yet that this is a possibility.

 

The actual holding of the case is the Court’s precedents do not support the defendant’s “extreme position.” They certainly do not dictate that position. It would be an extension of Lockett rule to make the rule that the defendant asked. Yet both sides do have some grist for their mills in the divided and conflicting body of cases under this precedent.

 

For the present and the immediate future, justices who are skeptical about the whole Lockett line have a solid majority. We can expect no further extension and possibly some pruning back. Indeed, we have already seen some pruning back in Jones v. Mississippi, the juvenile life-without-parole case. We might even see an outright overruling of the Lockett line if the Court decides to stop playing cafeteria originalism with the Bill of Rights and starts applying the same analysis to the Eighth Amendment that it applies to the other amendments.

 

Thank you very much. We can go to questions now.

 

Ryan Lacey:  Thank you very much, Kent. It’s certainly a very interesting case. And I would like to tell our audience that if you have a question for Kent, you can look at the bottom of your screen and there’s a Q & A function at the bottom. Just type your question in, and we will get to it. To start us off -- I kind of wanted to ask a few questions to start us off. What do you think the downwind effects of this case might be on state-level courts in these issues?

 

Kent Sheidegger:   Well, in the jury selection point, there isn’t much because the constitutional rule was already set, and the question at issue was whether there would be a different rule for the federal courts. So that one’s pretty much a federal courts only case.

 

      On the evidence points, because it is a constitutional issue, it affects state and federal courts equally. So, in particular, the evidence issue is settled. The implication is that there will be, generally, a narrower view of the Lockett line of cases and no further extensions of them for sure.

 

Ryan Lacey:  Understood. Can you discuss the dissents at all? I understand it was a 6-3 case. Can you discuss the liberal justices; what they said?

 

Kent Sheidegger:  There is only one dissent, and that’s by Justice Breyer with Justices Kagan and Sotomayor concurring. And it didn’t address the jury selection point at all. And, basically, he takes a broad view of the Lockett case, and he emphasizes, once again, that courts have a special need to take exceptional care in reviewing trial court decisions in cases where a death sentence has been imposed.

 

I have never quite understood why a sentence of death for a clearly guilty murderer requires a greater degree of care than a life sentence for a person who has, at least, a colorable claim; he might not have committed the crime. It always seemed to me that guilt was a more fundamental issue and that claims of actual innocence deserve greater care than questions of which of two available sentences should be imposed in a case that someone is clearly guilty. But we see that all the time, and Justice Breyer reiterates it. And his review of trial judge’s ruling really isn’t deferential at all the way review of evidence rulings by trial judges normally is in appellate courts. If this weren’t a capital case — if you were taking a straight Rule 403 case up — this would be a slam dunk. The judge would be affirmed.

 

Ryan Lacey:  Understood. Can you speak at all -- and I don’t know if this was even touched in the case, but this was -- obviously, this case comes out after a terrorist attack. And was there any aspect of national security law or anything like that that was covered in this case? How did that affect it?

 

Kent Sheidegger:  Not directly. And there wasn’t a national security issue before the Supreme Court in this case. Certainly the notoriety of the case did have a big impact on the jury selection issue. And that was the main indirect effect.

 

Ryan Lacey:  How do think that this case will, sort of, clarify Eighth Amendment case law and doctrine for the Court? Do you think it will have a lasting effect? Will this be a case that gets cited in future Eighth Amendment cases? What affect will it have?

 

Kent Sheidegger:  The opinion is -- the actual holding of the case is relatively narrow. There are implications that may be cited. And Justice Thomas, in the opinion of the Court, quotes his own opinion from decades ago in the Graham case — which has always been one of my favorites — so now we have that quoted in the majority opinion and stated to be the law which is the narrow view of the Lockett case. But the actual holding is fairly narrow. It’s more of the vibrations and the atmosphere that I think is going to be of greatest interest in the future.

 

Ryan Lacey:  Well, we still don’t have any audience questions. Do you have any other closing thoughts you wanted to get out while we wait, if somebody has a last-minute question they wanted to get in?

 

Kent Sheidegger:  Well, I’m certainly welcoming of any questions that anyone may have, but I think I’ve pretty much covered what I intended to say in the opening remarks.

 

Ryan Lacey:  Well, you covered it so well that no one has any doubt or any questions.

 

Kent Sheidegger:  Guess not.

 

Ryan Lacey:  Without any questions, I would like to thank you, Kent, for the benefit of your valuable time and expertise today. And I would love to thank our audience for joining us and for participating, even though we didn’t have any questions. We welcome listener feedback by email at by email at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming webinars.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.