Two Opposing American Opinions: Death for Dzhokhar?

Boston Marathon Bombing Suspects Face Final Judgement in Few Months

In 2013, during the annual Boston Marathon, two Muslim brothers, originally Chechen from Kyrgyzstan, Dzhokhar (origin Arabic “Jowhar”) Tsarnaev, and Tamerlane (origin Arabic “Timur”) Tsarnaev, detonated two homemade pressure-cooker bombs, killing 3 people and injuring hundreds.

The Federal Bureau of Investigation (FBI) said the two later killed a policeman and had a shootout with the police, during which Tamerlane was killed, and his brother Dzhokhar ran away. 

Eventually, Dzhokhar was found hiding in a boat in someone’s backyard. He was shot and wounded by police before being arrested.

Later, the FBI announced that the older brother, Tamerlane, was involved, two years earlier, in the slaughtering of three men, two of them Jewish and they were all involved in the drug trade.

During questioning, Dzhokhar said that he and his brother plotted the Boston Marathon bombs because of their anger at the US invasions of Afghanistan and Iraq.

During Dzhokhar’s trial, he elaborated on the Muslims’ anger at the US, because of the invasions and because of the US-led Global War on Terrorism (GWOT).

Dzhokhar was sentenced to death, but his lawyers appealed, saying that the jurors were not told about his brother’s involvement in the slaughtering of the three men, implying that Dzhokhar was coerced by his violent older brother to participate in the Boston Marathon bombing.

Last week, the appeals and counter-appeals reached the US Supreme Court, which is expected to issue its judgement in a few months.

These are two opposing opinions:

On one side, Ginger Anders, Dzhokhar’s lawyer.

On the other side, Eric Feigin, Assistant Solicitor General

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Lawyer: "Jihadist Brother":

“Under the Constitution, a death sentence is lawful only if it reflects a reliable and reasoned moral judgment to the offense and the defendant's culpability.

That bedrock principle was violated by the District Court in two ways in this case:

First, it refused to learn whether jurors had been exposed to publicity that could prejudice their consideration of the death penalty.

Second and more fundamentally, it excluded evidence that Tamerlane, Dzhokhar’s older brother, robbed and murdered three people as an act of jihad.

That evidence was central to the mitigation of the case …

Our entire argument is that Dzhokhar was less culpable because his older, and very violent brother, Tamerlane, had indoctrinated him and then led him to do the bombings. Also, the fact that the brother had committed himself to violent jihad must have added to his pressure on Dzhokhar.

That had a profound effect on Dzhokhar, who was already enthralled by his brother, and, therefore, would have felt intense pressure to follow Tamerlane's chosen path and to accept extremist violence as justified …

The District Court’s exclusion of the evidence distorted the penalty phase by enabling the government’s lawyers to present a deeply misleading account of the key issues of influence and leadership.

The government’s lawyers argued that Tamerlane was merely bossy. But the evidence showed that wasn't true:

First, the government’s lawyers argued that Jihadist Tamerlane sent his younger brother just a few extremist articles. There was more than that.

Second, the government’s lawyers argued that Tamerlane was not involved in violent jihad until his younger brother joined him. That was not true…

A sentencing proceeding where the defense is not permitted to make its fundamental mitigation argument, and to rebut the government's aggravation arguments, cannot result in a reliable and constitutional death sentence…

The key point here is that the test for relevance is the permissible inferences that the jury can draw from this evidence.

And so, I think the District Court committed legal error here by saying that the evidence lacked any probative value at all.

I think the far stronger inference here from the evidence was that, in fact, Tamerlane had a significant role in the killings of the three men.

We know that because not only did Todashev (a participant in the killing) say that, but, also, in Dzhokhar's own statement to a friend that his older brother had committed these killings as acts of jihad…

“He would not have said that if this had been a minor role …”

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Eric Feigin: "Dzhokhar Terrorist":

“After watching video of Dzhokhar, by himself, and personally, placing a bomb behind a group of children at the Boston Marathon, the jury returned a verdict unanimously recommending capital punishment for that specific deliberate act …

The Court of Appeals (that reversed the District Court):

First, it should have let that verdict stand. Instead, it unearthed a previously unmentioned supervisory rule (by brother Tamerlane).

Second, it usurped the District Court's discretion by insisting that the jury had to hear unreliable hearsay accusations against Dzhokhar’s brother by a dead man with a powerful motive to lie (Todashev, who participated in the killing of the three men).

We'll never know how or why three drug dealers were killed in 2011. And none of Dzhokhar lawyers’ theories justifies inserting that separate crime into the proceedings for Dzhokhar’s own participation in the 2013 Marathon bombing.

And even if the Court of Appeals had identified a misstep in one of the hundreds of judgment calls that this complex trial required, any error here was harmless.

The experienced District Court, with an impartial jury, heard overwhelming evidence about Dzhokhar’s own actions and motivations. And, then, rendered a sound judgment against a motivated terrorist who willingly maimed and murdered innocents, including an eight-year-old boy, in furtherance of jihad …”

 


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