United States v. Tsarnaev

LII note: The U.S Supreme Court has now decided United States v. Tsarnaev

Issues

Should Dzhokhar Tsarnaev’s sentence be vacated because (1) the jury was not asked content related questions during voir dire about their exposure to pretrial media; and (2) Tsarnaev’s rights were violated when potentially mitigating evidence was excluded during the sentencing phase?

Oral argument:
October 13, 2021
Court below:
United States Court of Appeals for the First Circuit

This case asks the Supreme Court whether the Court of Appeals can invoke a precedential supervisory rule to require specific voir dire questions to potential jurors in high media profile cases. The case further asks if the Eighth Amendment and the Federal Death Penalty Act of 1994 were violated by not including mitigating evidence that would usually be excluded by the Federal Rules of Evidence Rule 403. Petitioner United States argues that the voir dire process should be left to the district court’s discretion, and there is no requirement to ask content-based questions about media exposure during voir dire. The United States also argues that the district court did not abuse its discretion in excluding certain mitigating evidence because the probative value was outweighed by the potential confusion and prejudice. Respondent Dzhokhar Tsarnaev responds that First Circuit precedent requires district courts to ask content-based questions to potential jurors if requested by one of the parties. Further, Tsarnaev contends that the Eighth Amendment and Federal Death Penalty Act of 1994 require mitigating evidence that would normally fall outside the scope of admittable evidence to be included in the sentencing phase. The decision in this case will affect the formation of juries, particularly in high profile cases, and the allowance of evidence in death-penalty cases.

Questions as Framed for the Court by the Parties

1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.

Facts

In 2013, Respondent Dzhokhar Tsarnaev and his brother, Tamerlan Tsarnaev, set off two bombs at the Boston Marathon. The bombs killed three people and injured hundreds of others. That night, after Tamerlan and Dzhokhar escaped, the brothers drove Tamerlan’s car past Massachusetts Institute of Technology. While passing through, they noticed Sean Collier, a campus police officer. Tamerlan and Dzhokhar approached Collier from behind and shot him six times at close range, causing him to die. The brothers fled when they saw an MIT student riding a bike nearby.

Following this, Tamerlan and Dzhokhar approached Dun Meng while he was sitting in his parked car. Tamerlan threatened Meng with a gun and forced Meng to drive him and Dzhokhar as Tamerlan ordered. Meng was eventually able to escape but Tamerlan and Dzhokhar continued using Meng’s car. The police located the brothers using Meng’s car tracking system. Tamerlan and Dzhokhar used bullets and bombs against the police, but Tamerlan was eventually shot and apprehended by the police. Dzhokhar was able to escape in Meng’s car but ran over Tamerlan during his escape. Tamerlan died later that day. Meng’s car was damaged during this altercation, and so Dzhokhar exited the car after driving two blocks. In a nearby backyard, Dzhokhar noticed a shrink-wrapped boat where he hid for the night. The next day, David Henneberry saw that the shrink-wrap on his boat was out of place so he went to fix it. Henneberry spotted a bloody Dzhokhar and called the police. Following a 90 minute standoff, Dzhokhar was arrested and indicted for numerous charges, many of which were death penalty eligible .

Prior to trial, Dzhokhar requested a venue change. Dzhokhar feared that a trial in Boston would result in a prejudiced jury because it was a high-profile case with considerable media coverage. The judge denied the request for a venue change, assuring Dzhokhar that voir dire would protect against bias. However, the judge prohibited attorneys from asking questions that were too specific such as “[w]hat did you know about the facts of this case before you came to court today (if anything)?” At the trial, Dzhokhar admitted to his involvement but argued that Tamerlan manipulated him into the attack. . The jury found this unpersuasive, finding him guilty on all charges.

During sentencing , Dzhokhar sought to present evidence on the Waltham murders. In 2011, an unknown person (or people) killed three drug dealers in an apartment in Waltham, Massachusetts. The victims were found bound with their throats slit. While this crime remains unsolved, evidence suggests that Tamerlan committed the murders with the help of his friend, Ibragim Todashev. Todashev agreed to confess to the crimes but attacked a police officer during his testimony. Todashev died during this confrontation. The FBI refused Dzhokhar’s requests to produce reports of Todashev’s testimony or evidence of Dzhokhar’s involvement in the Waltham murders, citing federal and local criminal rules.

Dzhokhar argued that Tamerlan’s possible involvement with the Waltham murders would show a pattern of conduct by Tamerlan of recruiting others to commit terrible act, which could be a mitigating factor for Dzhokhar’s behavior and weigh against a death sentence. The judge denied Dzohkhar’s request. The jury recommended a death sentence and the judge agreed, sentencing Dzhokhar to death. Dzhokhar appealed , raising sixteen issues for review.

The United States Court of Appeals for the First Circuit reversed three of Dzhokhar’s convictions, and vacated the death sentences.

The United States Supreme Court granted the United States’ petition for a writ of certiorari on March 22, 2021.

Analysis

VOIR DIRE QUESTIONS ABOUT CONTENT OF MEDIA EXPOSURE

The United States contends the district court judge carefully determined the bias of prospective jurors and chose those who could put their exposure to pretrial media aside during voir dire . . The United States notes that the district court summoned an expanded jury pool, screened potential jurors with a questionnaire that asked multiple questions about pretrial publicity, and conducted a 21-day voir dire with follow up questions on juror’s exposure to the publicity to identify and remove jurors who might be biased due to pretrial media exposure. Further, the United States argues that the Court of Appeals should defer to the judgment of the trial court to create an appropriate jury selection process, because trial court judges are uniquely situated in the locale where the publicity has had its effect.

The United States further asserts that the supervisory power of the court under Patriarca v. United States , which the appellate court relied upon in its decision, does not apply. The United States notes that while the appellate court held that Patriarca requires district courts to always grant a request of counsel to inquire about what potential jurors have read or heard about in a “high-profile case,” this is not a constitutional prerequisite for jury selection. The United States cites Mu’Min v. Virginia , which found that there was no constitutional requirement to question all prospective jurors about the specific content of their pretrial exposure. . Further, the United States argues that only specific types of cases, such as those that include racial bias, require a particular type of inquiry. The United States additionally claims that jurors are merely required to remain impartial during the trial and are not required to be completely ignorant to the facts of the case before the trial. According to the United States, the ultimate questions of voir dire do not focus on the content exposure, but rather the mindset of the jurors headed to trial and their ability to be impartial.

The United States concludes that the jury selection process successfully identifies potential bases for bias and explores whether the juror could remain unbiased, therefore following the voir dire requirements. The United States emphasizes that the content of news coverage from over two years ago is less important during voir dire than the impartiality of the potential jurors. Therefore, the United States concludes the Court of Appeals invalidated the capital sentence without identifying any juror or trial decision that showed evidence of pretrial bias.

Respondent Dzhokhar Tsarnaev (“Tsarnaev”) counters that the district court failed to determine whether prospective jurors were biased by the pretrial publicity. Tsarnaev notes that during voir dire, both sides originally requested asking questions about the content of the publicity seen by the potential juror, although the United States later changed position. Tsarnaev asserts that the district court refused to pose such questions and largely prevented him from asking them. According to Tsarnaev this is a violation of the Patriarca rule, which “holds that the district court must ask [potential] jurors what they have heard about a case if counsel requests it” and determine whether there is “a significant possibility that jurors have been exposed to potentially prejudicial material,” particularly in high profile cases. Tsarnaev argues that this rule applies to this case because situations where pretrial publicity could threaten the jury’s impartiality are present. Tsarnaev contends that the pretrial media coverage was “a deluge of highly prejudicial, inadmissible, and inflammatory reporting and commentary,” and is widespread across the internet and social media. According to Tsarnaev, no sufficient bias screening occurred during voir dire, and therefore the Court failed to ask a question required by the Patriarca supervisory authority.

Tsarnaev concludes that the Patriarca rule is a reasonable supervisory rule because the Court of Appeals can mandate procedure to lower courts and it does not offend any constitutional or statutory provision. . Tsarnaev contends that although Mu’Min established no constitutional right to content-based questions, all nine justices agreed such content questioning is helpful, and it left the door open for supervisory rules that govern voir dire questions. Tsarnaev concludes that Patriarca is a reasonable exercise in supervisory authority because asking potential jurors what publicity they remember from the pretrial media coverage is helpful in determining impartiality amongst the jury pool.

Tsarnaev explains that during voir dire, prospective jurors were only asked about the amount of coverage they had seen. According to Tsarnaev, if the jurors were screened for content exposure to pretrial material, then the court could have ascertained if the prospective jurors were truly prejudiced by that exposure. Tsarnaev asserts that the widespread and pervasive nature of the coverage made it impossible for prospective jurors to assess their own impartiality. Therefore, Tsarnaev concludes that an unacceptable risk occurred which necessitates a vacatur .

ADMISSION OF MITIGATING EVIDENCE IN THE PUNISHMENT PORTION OF A CAPITAL PUNISHMENT CASE

The United States argues that the District Court correctly excluded evidence of Tamerlan Tsarnaev’s alleged involvement in different unsolved crimes. The United States contends that while the Federal Death Penalty Act does allow for evidence that is beyond the scope of Federal Rules of Evidence Rule 403 , the statute enables district courts to keep the penalty phase focused by allowing traditional evidence exclusion rules if the probative value of the evidence is outweighed by the possibility of prejudice, if the evidence may confuse the jury, or if the evidence is misleading. . Further, the United States asserts that reversal is only warranted if the “judgment is plainly incorrect.” . The United States maintains that the judgment was correct because the evidence would have warranted a “complicated minitrial about that unsolved crime.” Additionally, the United States argues that the previous crime’s accomplices, manner, and motivation are different from the Boston Marathon bombing, and that it is just as likely that Dzhokhar Tsarnaev masterminded and committed the alleged murders. According to the United States, assessing the evidence as a whole, the minimum probative value was outweighed by the possible confusion or distraction to the jury.

Further, the United States claims the evidence in the record establishes that additional mitigating evidence would not have changed the outcome at the penalty proceedings. The United States argues that there was enough evidence to prove that Dzhokhar Tsarnaev acted independently of Tamerlan Tsarnaev’s influence. The United States asserts that the appellate court reviews the district court’s decision on a permissive standard only “ for abuse of discretion .” The United States concludes that regardless, the record shows beyond a reasonable doubt that any error was harmless .

Tsarnaev counters that the Eighth Amendment entitles capital defendants to present for jury consideration any mitigating factors during the penalty phase of a capital punishment trial. Tsarnaev argues such mitigating factors encompass any aspect of the defendant’s character or record, or any circumstances that would be a basis for a sentence less than death. Tsarnaev further contends that admittance of mitigating evidence has a low standard, meaning that as long as the evidence shows reliability it can be admitted over other substantive evidentiary rules of exclusion. Tsarnaev claims the Federal Death Penalty Act, which governs the penalty-phase presentation of evidence, requires juries to consider any mitigating factors, which includes relative culpability . Tsarnaev argues that under both the Eighth Amendment and the Federal Death Penalty Act, inclusion of mitigating evidence is admissible regardless of the Federal Rules of Evidence Rule 403. Tsarnaev contends that the Federal Death Penalty Act does not alter the constitutional right to present mitigation evidence, nor does it allow the court to decide on discretion to entirely exclude evidence.

Therefore, Tsarnaev asserts that the exclusion of his brother’s past actions weakened his mitigation case. Tsarnaev argued at trial that his culpability was lessened because he acted under the influence of his brother, who was the leader in the offense. Tsarnaev cites Thompson v. Wainwright , which found that when the issue of relative culpability is raised, as it was in this case, the background of other perpetrators could be crucial to sentencing. Tsarnaev contends that the evidence suggesting that his brother committed violent murders before should be considered reliable because the United States previously swore to a magistrate judge that there was probable cause to believe he had committed those murders. Tsarnaev concludes that the evidence meets the low bar for admissibility in the sentencing phase, “minimal indicia of reliability.” According to Tsarnaev, in excluding the evidence, the prosecution was able to distort the sentencing proceeding. Tsarnaev concludes that the error in excluding evidence was not harmless error beyond a reasonable doubt because it is not virtually certain every single juror would vote for death with the inclusion of the evidence.

Discussion

COUNTERING POTENTIAL JURY BIAS

In support of the United States, the National Fraternal Order of Police contends that voir dire, and the type of questioning used, is best left to the discretion of trial court judges as they know the effect of publicity in the area. The National Fraternal Order of Police also argues that requiring a long and complex voir dire process may waste judicial resources, confuse the jury, and ultimately disrupt justice. Moreover, the National Fraternal Order of Police adds that certain procedures in the federal system, like the size of judicial districts and the right to counsel already protect against biased jurors. The Criminal Justice Legal Foundation argues that, because of the news and popular crimes shows, people are now frequently exposed to horrible violence and thus “public passion” prejudice may not lead to biased jurors and unfair trials. Finally, the Criminal Justice Legal Foundation adds that protecting against bias is not as important in cases in which the central question is about penalty and not guilt. For example, the Criminal Justice Legal Foundation notes that in this case Tsarnaev’s guilt was clear and the trial was focused more heavily on the question of the degree of punishment rather than on the question of guilt.

In response, a group of retired federal judges and former federal prosecutors (“Judges and Prosecutors”), in support of Dzhokhar Tsarnaev, contend that specific questioning has led to more impartial trials in multiple high-profile cases over the last thirty years. Shirin Bakhshay and other psychologists (“the Psychologists”), in support of Tsarnaev, assert that specific questioning is especially important today, as social media has led to an increase in exposure to misinformation. Additionally, the Psychologists argue that specific questioning helps identify jurors who may be influenced by unconscious bias. Similarly, the American Bar Association , in support of neither party, warns that ineffective voir dire in high profile cases may result in an unfair trial as jurors will be influenced by media coverage. Rather than asking potential jurors general questions, such as “Can you be fair?”, the ABA encourages asking jurors specific, individualized questions such as “What have you heard about this case?”. The ABA argues that this will promote juror cooperation, ensure less bias, and ease appellate review.

THE EFFECT OF EVIDENCE EXCLUSION ON SENTENCING PROCEDURE

The United States argues that admitting unnecessary, attenuated evidence complicates trials, distracts juries, and muddles the issues. Allowing complicated and inconclusive evidence, they urge, may result in courts having to conduct “mini-trials” on this evidence. District courts, the United States argues, should be given discretion to make decisions about what evidence is admissible as they are most knowledgeable about the specific facts of the case and deal more frequently with evidence issues than appellate courts . The Criminal Justice Legal Foundation, in support of the United States, reinforces this argument, adding that courts across the country continually choose to leave out unessential evidence.

In support of the judgment below, a group of evidence and sentencing law professors (“Professors”)”), assert that excluding too much evidence at the penalty phase may create a crucial constitutional conflict. If evidence exclusion rules are read too literally, the Professors argue, defendants may not have the opportunity to present information that could affect the severity of their sentencing. . The American Civil Liberties Union and others (“ACLU”), in support of Tsarnaev, explains that allowing more evidence ensures sentencing is more personal and less random. Permitting a broad array of evidence during sentencing, the ACLU says, can benefit the prosecution or the defense depending on the case. . For example, the ACLU notes that broad evidence rules may allow the defense to present appeals to the defendant’s character. Or, the ACLU also notes, the prosecution may be able to include evidence of past crimes that would not typically be permitted.

Conclusion

Written by

Renee Olivett

Kate Sullivan

Edited by

Daniel M. Bialer

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