Perhaps Dzhokhar is to Tamerlan as Ghislaine is to Jeffrey: A Comment on the Excluded Evidence in the Boston Marathon Bomber Sentencing

by Michael C. Dorf

On Friday, the Supreme Court issued a 6-3 decision reinstating the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. The U.S. Court of Appeals for the First Circuit had reversed the death sentence on the basis of two errors by the district court: (1) failure to ask prospective jurors during voir dire about the media coverage they had seen and what they had learned from it; and (2) exclusion of evidence that Dzhokar's older brother Tamerlan had committed a triple-murder a year and a half before the Boston Marathon bombing. Writing for the (all-Republican-appointed) majority, Justice Thomas found that: (1) in light of the district court's probing for bias during voir dire, the decision not to ask the precise question requested about media coverage was a permissible exercise of discretion; and (2) the district court also did not abuse its discretion by excluding the evidence of the triple-murder by Tamerlan, as that evidence relied on statements by now-dead witnesses, was tangential, and was thus potentially confusing.

The holding with respect to (1) turned in part on the scope of the "supervisory power" that an appeals court may exercise over the district courts within its jurisdiction and thus occasioned a remarkable and to my mind quite wrongheaded concurrence by Justice Barrett (joined by Justice Gorsuch) in which she suggested that, in the absence of statutory authorization (and possibly even with such authorization), federal appeals courts lack any such supervisory power. She's right that prior SCOTUS cases don't exactly establish such a power of an appeals court over district courts, but the notion that appeals courts can't harmonize procedure in the district courts they oversee (so long as they do so consistently with applicable rules and precedents) is quite radical. However, I'll save my thoughts on the supervisory power for now.

Here I want to focus on the second issue. Dzhokhar argued that his older brother Tamerlan was the mastermind behind the Boston Marathon bombing and that while that fact does not excuse Dzhokhar's participation, as a younger brother under the strong influence of his evil older brother, it somewhat mitigates his culpability. Hence, he said the appeals court was right to find that the district court lacked the discretion to exclude the triple-murder evidence. After all, a federal statute provides that in a capital sentencing hearing, "[t]he defendant may present any information relevant to a mitigating factor," even if it would be otherwise inadmissible under the rules of evidence, "except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Dissenting, Justice Breyer, joined by Justices Sotomayor and Kagan, said that the  triple-murder evidence was much more potent in showing how cold-blooded and domineering Tamerlan was, and thus its exclusion was an abuse of discretion in denying Dzhokhar his ability to prove mitigation.

I don't have a strong view about the right legal outcome in the case, but I do want to suggest that if the appeals court judgment had been allowed to stand, the sentencing jury would have nonetheless reached the same result even on a resentencing in which the triple-murder evidence were presented. The Ghislaine Maxwell trial is a useful comparison.

Readers will recall that Maxwell was the companion of Jeffrey Epstein. She was convicted on five out of six charges arising out of her sex trafficking of minors on behalf of Epstein. Maxwell's defense strategy was to try to undermine the victim-witnesses against her and to distance herself from Epstein. It clearly failed because there was substantial testimonial evidence that Maxwell was in fact working closely with and on behalf of Epstein.

But suppose that Maxwell had tried a different strategy. The exact nature of Maxwell's relationship with Epstein is not entirely clear. They appear to have been romantically involved for a time, and there was also a suggestion that Maxwell was attached to Epstein for financial support, but there is at least a strong possibility that Epstein exercised some kind of psychological control over Maxwell. It would likely have been degrading to Maxwell to act as Epstein's procurer of illegal sexual victims even as she was still herself infatuated with him. One could imagine a defense strategy in which Maxwell portrayed herself as Epstein's victim herself. And in fact there were scattered suggestions to that effect in the actual defense.

Perhaps that was completely false. There is reason to think that Maxwell was an eager participant in Epstein's crimes, not a victim at all. But even if one concludes that Maxwell was under Epstein's sway, it is hard to see how that would be perceived as mitigating. Indeed, in an important respect, the opposite seems true. As the NY Times reported in the wake of the guilty verdict in Maxwell's case, "Ms. Maxwell’s trial was widely seen as the courtroom reckoning that Mr. Epstein never had."

If a jury were charged with deciding who is more culpable--Jeffrey Epstein or Ghislaine Maxwell? Tamerlan or Dzhokhar Tsarnaev?--the former, senior member of each pair would be the obvious choice. But once Jeffrey and Tamerlan were dead and the only defendants were the junior partners, the evil of the absent-because-dead defendant predictably falls upon the remaining living defendant. A jury could conclude that if Epstein hadn't been a predatory monster, Ghislaine wouldn't have chosen the criminal life she did. Likewise, a jury could conclude that if Tamerlan had not been a jihadist, Dzhokhar might have pursued a peaceful path. But to state the obvious, that's not the kind of question either jury was asked to decide.

Justice Breyer is perhaps correct that the excluded triple-murder evidence has some mitigating force. It tends to show how brutal Tamerlan was and that therefore Dzhokhar was not the primary bad actor, that he was led astray. But I strongly suspect that a jury would see the triple-murder evidence as more aggravating than mitigating. Just as Maxwell was a proxy for Epstein, so Dzhokhar was a proxy for Tamerlan. Further evidence of Tamerlan's evil would very likely harden the sentencing jury against Dzhokhar. Thus, exclusion of the Tamerlan triple-murder evidence was, if erroneous, probably harmless--at least in a practical sense, even if not strictly in a legal sense.