Heather and Eric Read the Government’s Brief to Reinstate Dzhokhar Tsarnaev’s Death Sentence So You Don’t Have To

Apologies for the lateness of this update and the general quiet state of this site. I’ve spent much of my time during the pandemic working to turn research from this blog into a book about Jahar’s case. Even so, I’ve been wanting to get this post out since June, when Biden’s DOJ filed a brief to the Supreme Court asking to reinstate Jahar’s death sentence. 

Unfortunately, my father has been experiencing (non-COVID-related) health problems this summer and regrettably was unable to join me on a podcast episode to discuss these developments. Thankfully, Eric Bowsfield was able to step up in his stead, and we’ve been reading and analyzing the brief together. Due to scheduling conflicts, we’ve decided to formalize our notes and release our discussion as a written article instead of a podcast. There is the possibility of doing an episode in the future, perhaps when we’ve learned more information. 

To sum up a number of updates in Jahar’s appeal: in autumn of 2020, the Trump administration requested certiorari to appeal the overturning of his death sentence to the Supreme Court. Through tweets, Trump also reiterated his opinion that Jahar deserves to be executed. This sentiment was certainly in line with his anti-Black Lives Matter, pro-law enforcement stance that became a cornerstone of his bid for re-election. In contrast, as a presidential candidate, Joe Biden endorsed sweeping criminal justice reform, and later expressed a desire to abolish the death penalty, although he never named Jahar’s case directly.

In any event, Biden won the presidential election, and we waited through the rocky transition of power to see what the new administration might do with the case. Given Biden’s stated desire to abolish capital punishment, starting with the federal death penalty, we were optimistic. SCOTUS granted certiorari to the DOJ in March 2021, which means they agreed to hear the government’s case against Jahar. We hoped the Biden administration would withdraw the appeal, signaling a break with Trump’s hardline, anti-democratic policies. After all, Trump had overturned the moratorium on the federal death penalty and executed a number of prisoners during his tenure in office. We figured it was a bad look for Biden to go along with this in any way. 

In June, we were disappointed to learn that the Biden DOJ had filed a 56-page brief arguing to reinstate Jahar’s death penalty, using all the same rhetoric that the Trump administration had used. This time around, however, there was significant media backlash to the decision, the most I’ve ever seen when it comes to Jahar’s case. A number of death penalty abolition advocates published articles criticizing the Biden DOJ for the move. Some lawmakers joined the protest, including the acting mayor of Boston. Not long after, the Biden administration put the moratorium back on federal executions, and has since announced they will not pursue the death penalty in a handful of upcoming federal prosecutions. Yet they have not withdrawn the appeal to reinstate the death penalty in Jahar’s case. SCOTUS recently set oral arguments for October 13, 2021. 

Needless to say, this is an extremely frustrating development for us. What follows is an honest discussion of all the pertinent information in the government’s brief to the Supreme Court. On the whole, we found it to be a weak argument, echoing the government’s rebuttal of Jahar’s appeal to the First Circuit. Worse, it is riddled with factual inaccuracies, sweeping oversimplifications of the events in question, and Islamophobic tropes. Unlike in previous litigation, the government has dropped all pretenses and are now stating implicitly and outright that they believe Islam caused Jahar, Tamerlan and even Ibragim Todashev to act out violently. It’s a frankly disheartening read. 

We’ve tried to do the heavy lifting so that you don’t have to, but if you wish, you can read the entire brief here

Line-By-Line Commentary

On Islamophobia in the Government’s Arguments

A Muslim man praying. Photo by Monstera on Pexels.com

Respondent is a “[r]adical jihadist[ ] bent on killing Americans.” Pet. App. 1a; see J.A. 168-170, 230-234. In late 2012 and early 2013, he told a friend that he wanted to “bring justice for [his] people” and attain the “[h]ighest level of Jannah [paradise],” which his friend understood to mean that respondent wanted to wage jihad. J.A. 117-120. He expressed the same desire to followers on Twitter, whom he encouraged to view al Qaeda lectures, he publicly prayed for “victory over kufr [infidels].” (7)

Eric: Immediately we see the claim of Jahar being a radical jihadist and a friend’s opinion that wanting to “bring justice for his people” and “attain the highest level of Jannah” equates to a jihad. The state also argues he encouraged his Twitter followers to view Al-Qaeda lectures. This, if I remember correctly, is already disproven?

Heather: That’s correct. There is an awful lot to unpack here, but to me it comes down to just how much the government is condensing and conflating allegations against Jahar, some of which weren’t even argued at trial. Particularly troubling is the “bring justice for my people” statement, which was texted to a friend we still don’t know the identity of (aside from also being Muslim based on context clues). I’ve always been irked that the government assumed “my people” meant generic Muslims, and not the people of the Caucasus, who have seen a lot of hardship in the post-Soviet years, especially Chechnya. He could have been talking about Muslims in general, but there’s a very obvious connection to his home country that usually gets overlooked. Also troubling is the assumption by the government that “jihad” means violence and not something like human rights work (which I think could also be inferred from the conversation, as it mentions both going to grad school and studying to become an imam in the same breath). 

Finally, I like how the government here asserts that Jahar had amassed some sort of massive Twitter following (never asserted at trial) and also that Anwar al-Awlaki’s Hereafter series are straight up “al-Qaeda lectures.” I looked them up – they have been commercially available for purchase since the 90s and the article from 2001 I found stated flatout “there’s no radical content in here” (whatever that means). At the time of their publication Al-Awlaki was a popular US-based Muslim cleric, so calling them Al-Qaeda lectures is kinda like calling Martin Luther King sermons Bolshevik lectures. 

Eric: Which, to be fair, is pretty much what Hoover and the FBI and their ilk tried to argue…

Heather: Exactly. There is a storied history of the FBI criminalizing race-based civil rights activism with programs like COINTELPRO. The legacy of these programs can definitely be spotted in post-9/11 counterterrorism measures.   

The preceding year, while in college in Massachusetts, respondent had accessed radical propaganda including an electronic copy of an al Qaeda publication with exhortations from al Qaeda leaders to commit terrorist attacks in “the West” and instructions for making bombs to “damage[ ] the enemy.” (8)

Eric: We again see the claim that he was accessing radical propaganda, specifically a copy of an Al-Qaeda publication. However, digital forensics shows that all of the files have the exact same timestamp, likely from when they were added to the computer, and that they were never viewed since. 

Heather: Yep. Not to mention the Inspire article so oft-quoted by the government doesn’t actually contain terribly comprehensive instructions, nor do the bombs that exploded at the Marathon even match the kind in that article.

On April 15, 2013, respondent and his brother Tamerlan —a fellow jihadist—walked to the crowded finish-line area of the Boston Marathon with backpacks containing homemade pressure-cooker shrapnel bombs filled with BBs and nails. (8)

Eric: They also refer to Tamerlan as “a fellow jihadist” which is pretty surprising since literally every piece of evidence indicates Tamerlan was the mastermind and driving force behind the attacks. 

Heather: Excellent point. The government is still sticking to the “they were equal partners” claim, which I suppose tracks with their argument about how keeping evidence about the Waltham triple murders out was “harmless error.”

While inside the boat, respondent carved the words  “Stop killing our innocent people, and we will stop.” J.A. 168; see J.A. 151 (photo). He also used a pencil to write out a manifesto to “shed some light on [his] actions.” J.A. 203; see J.A. 152-154 (photos). He stated that while “killing innocent people” is “forbidden in Islam” and he did not “like” it, “due to said [obscured] it is allowed.” J.A. 159. He accused “[t]he U.S. government [of ] killing our innocent civilians” and stated that he could not “stand to see such evil go unpunished.” J.A. 204. He warned that “the [M]ujahideen” “ha[d] awoken,” and that “you are fighting men who look into the barrel of your gun and see heaven.” Ibid. He also wrote that he was “jealous” of Tamerlan’s martyrdom and “ask[ed] Allah to make [him] a” martyr as well. J.A. 203-204. (11)

Eric: And, of course, they pin a lot on his “boat confession” even though, if I remember correctly, it is replete with faulty interpretations of Islam that Jahar did not hold, and holds the claim that he knew his brother was dead, even though transcripts from later in the hospital make it clear he was not aware of Tamerlan’s status. 

Heather: The more time has passed, the more I’m shocked I didn’t realize this was a forced confession sooner. They love to claim he wrote it independently before the police found him, but when I was working on my master’s thesis I found news coverage from a few days after the fact that claimed he was writing it “as law enforcement closed in.” To say nothing of all the stuff you mentioned that we’ve discussed before, that he seems to know things he can’t possibly know without outside input (that Tamerlan is dead, for instance). And how this is one of only two times when he expresses so-called “jihadist ideology,” both of which are during interactions with law enforcement.

Also interesting is how this government brief cut out all the Arabic words that were used, whereas at trial they really harped on them to highlight his “foreignness.” This version feels really sterilized, although it still repeats the “jihadist” narrative. This is very much in line with the Trump administration’s request for SCOTUS to take up this case — there was a real backing off of the attempts to qualify their anti-Islamic rhetoric that dominated the case at the trial stage. 

The political narrative surrounding the War on Terror has shifted so much since Trump became president. I suspect Trump’s bogus claims that he “defeated ISIS” and how Mike Pompeo tried to make a peace deal with the Taliban must factor in here. There have been attempts to demonstrate that the white men in charge were able to stamp out the largely manufactured threat of Islamic terrorism, a contrast from the Republican talking points when Obama was in office. When I was reading Obama’s memoir A Promised Land, he wrote about how whenever a Muslim was accused of a crime, the Republican party and Fox News lost their minds about how he was being “soft on terrorism.” Trump would also fan the flames that Obama was a secret Muslim himself. Now this brief is both trying to downplay the threat of supposed Islamic extremism, while still harping on the idea that Jahar, as a “radical Muslim,” is too dangerous to let live. Talk about mixed signals.

Such a minitrial was exceedingly unlikely to be productive, as everyone allegedly involved in the Waltham crime was dead and the credibility of Todashev’s self-serving statement blaming Tamerlan, right before his own suicidal attack on law enforcement, was specious at best. (23-24, emphasis mine)

Heather: This assertion plays into the idea that Ibragim Todashev was a violently suicidal Muslim — just like Tamerlan and Jahar. There’s still so many questions about the killing of Todashev, including whether or not he actually did attack law enforcement with a broom handle. We only have law enforcement’s version of events as evidence. But even if he did — isn’t it more plausible he was trying to do that to escape, not to force the FBI agent to kill him?

Eric: It kind of makes me wonder if they were so hell bent on keeping Waltham out of the trial to try to bury Todashev’s death even more than just to deny Jahar a duress defense.

Heather: That’s a really interesting possibility. Addressing law enforcement incompetence or brutality on any level is definitely something they avoided at all costs at the trial.

At a minimum, the sum of the Waltham evidence fails to offer meaningful support to the notion that respondent’s own willingness to kill innocent people was the unwanted end-product of religious indoctrination by Tamerlan. (47-48)

Heather: Despite previously admitting the defense’s argument involves duress, now they’re switching it to claim that Jahar had a “willingness to kill innocent people” as an “unwanted end-product of religious indoctrination” What? Like… he got religion but the unfortunate side effect is a homicidal rage? That sure says a lot about what whoever wrote this brief thinks about Islam. To claim this is what the defense is trying to prove is in such bad faith, and it reveals the government’s own biases, because they’re wholesale making up this other version of events that was never argued at trial, and is not being argued by the defense on appeal either. To me, this is even worse than the radicalization narrative, because at least then they made a half-hearted attempt to say there’s a “radical” strain of Islam that justifies violence. This erases any distinction and equates Islam and violence totally. Yikes. 

Eric: Yeah, at this point they’re just drinking their own Kool-Aid by claiming that Jahar was just so evil he was cool with killing and that learning his brother murdered his friend and two other guys made him gush in admiration. These are the kinds of claims that demand proof. It’s like they feel like since he was convicted they don’t have to prove anything anymore and can just claim what they want. Why not go farther? Why not claim he was in a crime pact with El Chapo?

He used his own computer to read al Qaeda propaganda that encouraged terrorist attacks and gave instructions on making shrapnel bombs to “damage the enemy.” See J.A. 99-112, 890-899. He texted a friend and tweeted about martyrdom and jihad. See J.A. 113 (saying “killing Muslims is the only promise” both 2012 presidential candidates “will fulfill”); J.A. 121 (praying for “victory over kufr [infidels]”); J.A. 118 (seeking “[h]ighest level of Jannah”). (51)

Heather: Another misrepresentation of the digital forensic evidence. Also, interesting inclusion of his comment on the 2012 presidential election because I always thought this was a shrewd and accurate assessment of US foreign policy. How they are trying to equate that to “martyrdom and jihad” is a real joy. Muslim criticism for American foreign policy equals a desire to commit terrorism, of course. Classic Orientalist discourse. Kind of like how anyone criticizing law enforcement must be a member of antifa. 

Eric: Or Black Lives Matter. And, yeah, are we convincing people on having unpopular (if factual) opinions now? That doesn’t seem like a bad trend at all…

On Factual Inaccuracies in the Government’s Summation of Events

What it feels like reading about what happened according to this brief. Photo by George Becker on Pexels.com

The brothers spoke on the phone, and about 20 seconds later, Tamerlan’s bomb exploded. J.A. 164. Respondent then moved away from his own bomb, which exploded a few seconds later. (8)

Heather: I found this interesting, as this is careful not to explicitly say Jahar detonated anything — a total departure from prosecutors at trial, who claimed he detonated his own bomb (and then showed no evidence he had a detonator). 

Eric: A very good point, and one I hope somebody hammers them for on the inconsistency. Also, in the surveillance video, doesn’t he move away after it explodes? 

Heather: In the video, he notices the first bomb explode up the block, then moves away before the one near him explodes. The prosecutors contended he moved away and then detonated with his own detonator, despite there being no evidence of this. There’s always been the assumption that he had to know the bomb was in the backpack he was carrying and that he moved away knowing it would explode. But other people in the frame start to leave in the same direction as him beforehand. It stands to reason he’s acting the same as someone with no prior knowledge — if you’re standing in a crowd and there’s just been an explosion up the street, would you really want to wait around and see what happens next? I can see anyone wanting to leave in that situation.

Eric: Hmm, this is some good info. I didn’t really look at the other people when I viewed the video and I didn’t know that everyone was reacting to the first explosion.

Heather: Yeah, it’s something I’ve rarely seen discussed, but if you take the footage as a whole and not hyperfocus on Jahar, there’s a lot of traffic moving through in that direction after the first explosion. Honestly, I’m surprised more people didn’t run away at that point.

Back at college the next day, respondent again accessed the electronic al Qaeda magazine with bomb-making instructions. J.A. 103. That evening, he worked out at the gym with a friend and tweeted, “I’m a stress free kind of guy.” (9)

Eric: This indicates Jahar accessed the Al-Qaeda files again and tweeted about being stress free. Is there any evidence to support this?

Heather: I have no idea where they’re getting the idea he accessed Inspire again after the bombing. I don’t recall it ever being argued at trial nor do the digital forensics back that up from what I remember. I looked back at the First Circuit decision and couldn’t find any mention of it there, either. Also, he did tweet that, and I know a lot has been made of that tweet (i.e. “he had no remorse for his actions!”) but Jahar also often quoted stuff like song lyrics without attributing the source. Plus, if he’d been threatened into silence by Tamerlan I don’t know why anyone would expect him to break that silence on Twitter. 

That night, respondent met up with Tamerlan again and they loaded pipe bombs, a handgun, and another shrapnel bomb into Tamerlan’s car. Pet. App. 7a. The brothers drove past the Massachusetts Institute of Technology, where they saw a campus police squad car. Ibid. They approached together from behind and shot Officer Sean Collier in the head at point-blank range using respondent’s pistol. (10)

Eric: It seems even the government admits that they don’t know who shot Officer Collier, stating “they” shot him, but they’re sure to claim it was Jahar’s gun, a fact that has had serious suspicion cast upon it. 

Heather: The prosecutor’s story at trial regarding the gun was a convoluted tale about how the gun got into Tamerlan’s hands via Jahar, so for the government to now claim it was Jahar’s all along seems like a bad faith argument. There’s no physical evidence the gun was ever in Jahar’s possession. The prints on the gun were Tamerlan’s, full stop. Even so, all the accounts of this event I see in the media do this “they shot him” thing, which always conjures an image in my mind of the two standing there both trying to get their fingers on the trigger. Like, no one does that. 

I also found it weird the government is now claiming the car was Tamerlan’s — at trial the prosecutors made a big stink about it being Jahar’s car and therefore he must have been driving it. It was the car he had with him at college but it was registered under their father’s name. Honestly, stuff like this makes me think the people who wrote this brief only gave the court record a cursory glance because they’re getting even basic details wrong. Feels great that this is what’s gonna be in front of SCOTUS regarding this case.

When officers started following them along a residential street, the brothers exited the SUV and attacked the officers. Ibid. Tamerlan began shooting while respondent threw bombs— some of which exploded. Ibid.  When Tamerlan’s gun stopped firing, he charged at the officers, who wrestled him to the ground. Ibid. Meanwhile, respondent got back into Meng’s SUV and sped toward the officers and Tamerlan. J.A. 180; J.A. 147-149 (photos). The officers managed to get themselves, but not Tamerlan, out of respondent’s path. J.A. 180. Respondent ran over Tamerlan, who died a few hours  later. Ibid. The shootout caused life-threatening injuries to one of the officers. J.A. 180-181. (10-11)

Eric: I also find it interesting that the state argues that Tamerlan was “wrestled to the ground,” conveniently leaving out the fact that he was shot several times, and seemingly putting the entirety of his death on Jahar for running him over. Also, the phrase “The shootout caused life threatening injuries to one of the officers” is a pretty weasley way of making it seem like a friendly fire shooting was actually Tamerlan shooting a police officer. 

Heather: You’re right, they don’t even mention Tamerlan was shot by the cops. I’ve always thought that probably didn’t do him any good, whether or not Jahar actually ran him over. I’ve also questioned that whole version of events, considering it’s entirely dependent on the word of the police officers on the scene. I’m pretty sure the grainy cell phone footage from the resident of the nearby house doesn’t show the getaway. And, even if it’s true, why were the cops able to get out of the way but Tamerlan wasn’t? Sounds a lot like they let him get run over. 

Eric: Yeah, one of the things that I think a lot of the public has learned since 2013 is that a cop’s account, by itself, cannot necessarily be trusted.

Heather: Absolutely. We can thank Black Lives Matter for that and all the work that’s gone into battling police violence since then. Sometimes I marvel at how none of the cops even wore body cams back then. If they had, it would make so much about what happened clearer.

Respondent ignored law-enforcement officers’ “repeated requests to surrender,” but was eventually forced out of the boat and captured. (11)

Heather: I found this to be a really odd summation of the final standoff which, you know, ended in a hail of bullets that seriously injured Jahar. Also, the assertion that he “ignored” law enforcement requests to surrender when they were surrounding him with hundreds of heavily armed officers and throwing flash bangs in the boat to disorient him seems like an inaccurate representation of what was going on.

Eric: This is a great point. Additionally, if I’m not mistaken, wasn’t he wounded when Tamerlan and the police exchanged fire earlier that night? 

Heather: He was, yes. His blood was found elsewhere besides the boat so Jahar must have been bleeding after that first police confrontation. Also, don’t forget he was completely unarmed when he was apprehended.

Eric: If I had already been shot and was surrounded by trigger happy people screaming at me, I’d be reluctant to venture out into the open too. Not that it helped him, they lit him up anyway…

Heather: Not to mention just how streamlined this version of events already was by the time the case got to trial, as it erases the part where the FBI “negotiated” with him, and that he was “writing the boat confession as law enforcement closed in,” details I found from early media coverage in the days and weeks after his arrest. Just, what a weird whitewashing of the events that erases any hint of inappropriate behavior on law enforcement’s part. 

The record definitively demonstrates that respondent was eager to commit his crimes, was untroubled at having ended two lives and devastated many others, and remained proud of his actions even after he had run Tamerlan over and was hiding out alone. (24)

Eric: The claim that the government makes stating that the record demonstrates that Jahar was eager to commit his crimes and was untroubled and that he was proud of his actions is far-fetched at best. There’s nothing that says how he felt, only actions he did or did not take.

Heather: Absolutely. I have been looking for six years and have found no evidence he wanted to have anything to do with this. Also, uh, the bombing actually ended three lives — Martin Richard, Lingzi Lu, and Krystle Campbell. Awkward that the government could make such a statement so bold yet get the number of casualties wrong. 

Eric: Well, if Trump’s White House initiated this argument, maybe Lingzi Lu didn’t count because she wasn’t white or American?

Heather: Oof, brutal. Though honestly, I do think Lu’s death got less play in the media than Krystle Campbell, Martin Richard, and especially Sean Collier. But he was not only a white man but a police officer, and law enforcement triumphalism is rampant in all the coverage of this case. ​​In fact, the Fraternal Order of Police filed an amicus brief arguing in favor of reinstating Jahar’s death sentence, which sure makes me uncomfortable.

Eric: Because, of course they did. What would any decision be if the FOP wasn’t involved on the least humane side of any argument? 

Respondent never offered a single piece of evidence to suggest that he attempted to get out from under his brother’s purported influence or felt apprehension about his crimes. (51)

Eric: Considering, if I recall correctly, they weren’t even allowed to bring Tamerlan up, this claim takes balls the size of Buicks to make. 

Heather: Yep, the defense was disallowed from mentioning Tamerlan at all in the guilt phase. Gee, I wonder why they never showed any evidence that Jahar was acting under duress…

While holding Dun Meng a prisoner in his carjacked SUV, respondent casually shopped for snacks at a convenience store. (52)

Heather: First of all, by all accounts, Tamerlan carjacked Meng. 

Eric: To the point where our investigations of the statements make it inconclusive if Jahar was even with him when he was jacked or if he got in when they stopped in Watertown.

Heather: Dun Meng testified he didn’t see Jahar until he got into the backseat of the car when they were in Watertown. And don’t forget the carjacking occurred in Allston right around the corner from the apartment of Tamerlan’s friend Viskhan Vakhabov, who received a call from the “Jahar Tsarni” cell phone about two hours before Sean Collier was murdered. And this detour to Allston from Cambridge makes no sense on its own since it’s completely possible to drive from Cambridge to Watertown without going across the river into Allston.

Also, based on the convenience store surveillance footage, I’m not sure freaking out and running away when Tamerlan appeared at the door counts as “casually” shopping.

Eric: Not to mention, he kept committing nervous tics while in the store (rubbing his face, if I remember correctly?). 

Heather: Yes, I wouldn’t call any of that casual behavior. More like fear-induced.

On Overstating the Damage of “Muslim Terrorism

The bombs caused devastating injuries that left the street with “a ravaged, combat-zone look.” Pet. App. “Blood and body parts were everywhere,” littered among “BBs, nails, metal scraps, and glass fragments.” Id. at 4a-5a. “The smell of smoke and burnt flesh filled the air,” and “screams of panic and pain echoed throughout the site.” (8)

Heather: Going hard again to elicit an emotional response, likening the scene to a war zone.

Eric: Not unusual, especially for a jury trial. Paint such a lurid picture, something that evokes rage and a desire for justice and then point to a defendant and say “and he did it!” Personally, if you’re trying to evoke the feeling of a lynch mob, I’m not sure you’re doing the work of Justice, but that’s just my opinion.

The bombs also “consigned hundreds of others to a lifetime of unimaginable suffering.” (9)

Heather: Related to the previous point, I grow weary of assertions that there has never been a crime or atrocity as bad as this one. Like maybe locking up millions of Uighurs in Chinese concentration camps is worse. Or deliberately separating parents and children at the US-Mexico border. Or ignoring a pandemic for political reasons and so it killed 600,000 people. Yes, the bombing was a violent crime that it hurt and killed people, and I’m sorry for those affected, but the political implication that only Muslims can inflict the worst suffering imaginable is a bit much. It’s an extension of the Bush era War on Terror rhetoric and it’s been disingenuous from the start. Especially when compared to the consistent downplaying of white supremacist violence by the government in recent years, you have to ask yourself why a Muslim immigrant is treated so much worse as a defendant than those from the Christian native-born contingent.

The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history. This Court should reverse the decision below and put this case back on track toward a just conclusion. (21)

Heather: The only reason this is “one of the most important terrorism prosecutions in our nation’s history” is because the Bush administration threw the other so-called “Islamic terrorists” in Guantanamo and have held some of them almost twenty years without a trial… the ones who haven’t been released for lack of evidence who now contend they were innocent and victims of kidnapping schemes in Afghanistan.

On Ibragim Todashev and the Waltham Triple Murders

Ibragim Todashev, Tamerlan’s friend who was shot and killed by an FBI agent in his own home.

Todashev initially denied involvement, but when agents challenged his story, he eventually offered to provide information “if he could get a deal for cooperating.” Pet. App. 65a; see J.A. 900-918 (FBI “302” report on final Todashev interview); (17)

Heather: I flagged this as interesting. I’m not really surprised by the information, but the Ibragim Todashev FBI 302 report has been kept under seal this whole time, so any time something seeps out of it I notice. Add to this some of the details that came out in the First Circuit decision, including that Todashev’s cut of the stolen money was $20k! Begging the question… How much was Tamerlan’s cut? 

Eric: I’ll bet it was enough to buy a lot of backpacks and pressure cookers without having to talk his brother into making them out of fireworks in their apartment. 

Heather: Although, even that is assuming the two crimes are related in some way, which I don’t really think they are. I do remember a little media speculation that the Waltham triple murders were done as a way to fund the bombing, but pressure cookers and backpacks and even gunpowder don’t cost tens of thousands of dollars. Based on what we know now about the Waltham murders, it sounds like if Tamerlan was involved, his main motive was money. Which makes me wonder about a lot of things. Like — did he have debts? If so, to whom did he owe them? That also brings up the possibility of money being a motive for him to commit the bombing. But who would pay him to do such a thing and why? I don’t have the answers to these questions, but even considering them opens up so many unsavory possibilities that get glossed over when law enforcement just decided he was “radicalized” and blamed Islam. 

Todashev began writing out a confession, but then suddenly attacked the agents, who shot and killed him. … The court found “insufficient evidence to describe what participation Tamerlan may have had” in the Waltham murders, observing that the evidence made it just as plausible “that Todashev was the bad guy and Tamerlan was the minor actor.” J.A. 650. The court explained that, because the jury would have “no way of telling who played what role, if they played roles,” the Waltham evidence “would be confusing to the jury and a waste of time * * * without any probative value.” Ibid. (17-18)

Eric: Man, the entire section about Ibragim Todashev’s murder and the Waltham triple murders is as sketchy as other accounts, which really says something considering the government would obviously polish it as best they can. They offer no explanation for why Todashev would “suddenly” attack police so badly he had to be shot in the middle of writing a confession. Additionally, the fact that the court refused to let the defense mention the Waltham murders, even in the penalty phase, just because it wasn’t known if Tamerlan or Todashev was the main actor seems really weak. Like, if Jahar feared that his brother was dangerous and violent, how involved Tamerlan was in a murder doesn’t really matter. The fact that Jahar feared for his safety and Tamerlan was involved in any murder should be a credible reason for fear, one would think. 

Heather: Agreed. Also, the fact that this is the main thrust of the government’s argument about excluding the Waltham evidence all the way to the Supreme Court is really disheartening to me. It just sounds like such obvious nonsense because they didn’t want to allow in any evidence that might help the defense (hence why the First Circuit ruled in Jahar’s favor on this). 

The court refused to defer to the district court’s assessment that the Waltham evidence’s “probative value [was] outweighed by the danger of creating unfair prejudice, confusing the is-sues, or misleading  the jury,” 18 U.S.C. 3593(c), and it deemed the exclusion prejudicial. (21)

Eric: Translation: the government is miffed that the court of appeals didn’t agree with the judge’s decision to withhold relevant information from the jury. I agree that if evidence that might add nuance to a situation is excluded, it’s probably pretty easy to convict people, but that’s not really what our judicial system is supposed to be all about, now is it?

Any minimal probative value of Tamerlan’s possible involvement in a different crime (robbery and murder of drug dealers), with a different accomplice (Todashev), and an apparently different object (money and the elimination of witnesses), was outweighed by the confusion and distraction of the mini-trial that would have been required for respondent to ask his own jury to discern the relevance—if any—of that separate unsolved crime. (23-24)

Eric: Boy, they are trying really hard to argue that the Waltham triple murders were totally irrelevant to this case, arguing that they’d have to try that case in a “mini-trial.” (It really makes the cynic in me wonder why they don’t want any of that stuff to come to light.) But a mini-trial isn’t required, nor is establishing if Todashev’s account putting all the blame on Tamerlan was accurate or not. All that is necessary to establish is a) was Tamerlan involved? and b) did Jahar have a legitimate reason to believe, accurately or not, that his temperamental and sometimes violent brother had murdered three people? If the answer is yes, then I think it’s pretty clear that Jahar’s “obedience” to his “domineering” brother maybe is something a little more severe than just being easily pushed around. If I thought my brother had murdered someone and he was demanding I do something, I’d certainly find it harder to just blow him off.

Heather: It’s a pretty old song and dance regarding the Waltham triple murders. Obviously the prosecutors never wanted any of this to come to light, and O’Toole agreed. The defense appealed, and this was pretty much the identical government rebuttal. Now the First Circuit thought otherwise, and the government is coming back with the same tired argument. I’m sick of it, personally. You sum it all up perfectly with your questions — that is the heart of what could have been relevant to the defense. But if it’s anything other than a picture of Jahar as a blood-thirsty jihadist or a meek child with no agency or ability to tell right from wong (both long-standing negative stereotypes of Muslims – though the latter is usually put upon Muslim women), the government doesn’t want it out there.

And even if Todashev’s story were believable in all of its particulars, it showed at most that Tamerlan had committed murder on the spur of the moment and allowed Todashev to opt out—not that Tamerlan intimidated respondent into researching, building, and using homemade shrapnel bombs to kill innocent people at the Boston Marathon. (24)

Heather: This is such an asinine argument. There’s nothing in Todashev’s story that suggested Tamerlan was allowing him to opt out — direct quotes have him saying he was afraid of what Tamerlan would do to him if he didn’t comply.

The jury that watched a video of respondent place and denotate a shrapnel bomb just behind a group of children would not have changed its sentencing recommendation based on Tamerlan’s supposed involvement in unrelated crimes two years earlier. The court of appeals lacked any sound basis for concluding otherwise and undoing the work of the jurors to whom the issue of capital punishment was properly entrusted. (24, emphasis mine)

Heather: “Denotate”? Yes, this is actually how it appears in the brief. Incorrect statistics and typos — that really inspires confidence in the government’s argument. 

Eric: They go on to state that the jury would not have changed their mind about the video of Jahar placing the bomb if they’d known about the Waltham case. The government cannot possibly know that, which is probably why the court of appeals ruled that it should have been permitted into evidence. If you’re interested in truth, nuance is never a bad thing, and knowing “This person planted a bomb,” is absolutely different from “This person planted a bomb because he was legitimately afraid his brother, whom he believes is a murderer, demanded that he do so.” The government’s argument that nuance is not needed here is offensive. This is a capital case.

Heather: Love how they also presume to know what’s inside the jurors’ minds — as you point out. I was totally expecting this kind of argument and it is really insulting. Least of which because the record also includes evidence from Jahar’s lawyers that while he was attempting to plead guilty, he wrote a letter of apology to the victims, which the government then had suppressed and filed under seal somewhere so that it couldn’t be used in the penalty phase where the prosecutors went on to claim he “showed no remorse.” Yeah, it’s easy to prove a person isn’t showing remorse when you don’t let him!

Eric: This is a spectacular point. Why seal a letter where he admits his guilt? One might think such a letter may prove useful in a jury trial, no? 

Also, not to mention the fact that he tried to plead guilty in the first place and the government wouldn’t let him.  Why the hard-on to kill him? Even if you 100% believe he did it because he’s the most evil, hard-hearted Islamic terrorist out there, how does it serve the common good to have a huge, expensive trial to kill him rather than take the guilty plea and lock him up forever?

Heather: I think the reason was purely political. Given the time period, Obama was trying to close Guantanamo Bay and the Republicans were blocking him by claiming it was too dangerous to house so-called Islamic terrorists on American soil. So a huge, public trial where the Obama DOJ spared no expense to impose a death sentence on an “Islamic terrorist” and then house him in the highest security federal prison in the country was a demonstration that the Democrats weren’t being “soft on terrorism,” and that the government is capable of holding these terrorists inside the country. 

Unfortunately, that proved futile because nothing Obama could do would convince the Republican Party to be reasonable in any way. That was a major failing of the entire Obama administration, in my opinion — thinking the Republicans would ever play fair. This was never a legitimate security issue. It was about creating a justifiable framework for the Bush administration to do extrajudicial imprisonment and torture without being held accountable by American law or the Geneva Conventions. Then the Republican Party during the Obama years did everything they could to make sure Democratic leadership could not end it. In hindsight I think we’re lucky Jahar didn’t end up in Gitmo himself — I recall Lindsay Graham calling to have his citizenship stripped so they could send him there. As badly as this case went in federal court, we’d barely know a fraction of what we’ve been able to figure out over the years if he’d been spirited away to Gitmo and never given a trial.

The Federal Death Penalty Act of 1994, 18 U.S.C. 3591 et seq., supplies specialized standards for the admission of evidence in capital-sentencing proceedings. It safeguards a defendant’s constitutional right to introduce mitigating evidence by allowing him to offer “any information relevant to a mitigating factor” at the penalty-phase proceeding, “regardless of its admissibility under” other evidentiary rules.  18 U.S.C. 3593(c); see Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). (44)

Eric: I know they go on after this quote to argue that the presiding judge has leeway to determine if such evidence would have “Probative value that is outweighed by the danger of creating unfair prejudice, confusing or misleading a jury” but it sure seems to me that wanting to introduce evidence that one’s brother was believed to be a violent murderer who pushed a defendant into the crime in question would certainly fall under this statute. At the end of the day this seems to be the government saying “Judge O’Toole was right to disallow this thing for the jury to consider when deciding to end a man’s life” and the appellate court took the tack of saying “No, he wasn’t,” hence their decision to overturn the death penalty. 

Heather: Exactly, and I fail to see much in this brief that says anything new on that score, just repeating the original argument that the First Circuit already disagreed with. It seems like when a kid goes to ask their mom for permission to do something and she says “no,” so the kid goes to dad with the same inquiry. I’m still angry that the Biden administration didn’t drop the Trump DOJ’s appeal. 

Eric: I’m half-convinced they didn’t to avoid getting called soft on terrorism by the GOP. Which is a BS reason, but I can picture some weasel in a tie saying, “If we’re defending this we aren’t doing XYZ that we want to get done,” so it was just quietly dropped, as if it wasn’t a man’s entire life on the line.

If this theory is correct, I wonder if the Biden admin’s response was “Fine, let it go forward but tank it so we can say we tried our best” or if Biden really believes the narrative and wants to see this kid dead. It’s pretty sad commentary on our politics that I can’t figure out if our president has the courage of his supposed convictions or not, and he was the better of the options in the last election.

Heather: Honestly, it’s hard to say. There’s definitely been waffling on the whole death penalty issue in the Biden administration. The reinstatement of the moratorium on federal executions and then the decision not to pursue the death sentence in a handful of cases currently being prosecuted seem like a course correction after the backlash this decision received. But, notably, they haven’t backed down on Jahar’s case. I’m sure Biden remembers it from 2013-2015 because he was vice president then. I don’t know. There’s always been a certain “fuck this guy in particular” attitude toward Jahar, so I can’t say I’m surprised, just disappointed.

Even if Todashev’s story were to be believed, the Waltham crime’s participants, manner, and motivation all differ markedly from the Boston Marathon bombing. Todashev’s claim was that Tamerlan had recruited Todashev to participate in a robbery for money and then decided on the spur of the moment to kill the victims—by himself—to eliminate any witnesses. Pet. App. 65a-66a. The marathon bombing, in contrast, was a pre-planned terrorist attack in which respondent personally murdered multiple “innocent people” in furtherance of his own expressly declared jihadist aspirations. J.A. 204; see, e.g., J.A. 118 (seeking the “[h]ighest level of Jannah [paradise]”); J.A. 117 (“I wanna bring justice for my people.”); J.A. 203-204 (“I ask Allah to make me a shahied [martyr].”). (45-46)

Heather: I love how they’re making out a robbery and triple murder out to be “spur of the moment.”

Eric: “Well I didn’t plan to rob one of my best friends, me and Ibby just happened to be in the area and I had my gun and knife with me and I thought ‘why not.’ And then one thing leads to another and you nearly cut the heads off three guys… like you do…”

Heather: Ha! That whole premise is so hard to swallow. As if you can assume by Todashev’s account that Tamerlan came up with that in the moment and didn’t have it planned out, then sprung it on Todashev when he was already implicated in a crime and would be much less likely to be able to refuse.  My theory about how Tamerlan roped in Jahar is very similar. Generally, if you want an obedient accomplice in someone who might not want to go along with your crimes, keeping them in the dark until the last possible moment is incredibly effective. It’s even in the KGB handbook. (And before you ask, I had to read it for a class on post-Soviet security.)

Also, this sort of argument makes me angry that no one has ever really tried to contest the boat confession as coerced, because it gives the government such easy justification for claiming Jahar was ready and willing to commit crimes “for Allah.” What a travesty that this Islamophobic crap just keeps compounding on itself. 

As the district court pointed out, the evidence made it just as likely that “Todashev was the bad guy and Tamerlan was the minor actor.” J.A. 650. Following the murders, Todashev threw out his cell phone and left Massachusetts under a false name. J.A. 963-964. Tamerlan, in contrast, remained in town and even socialized with the younger brother of one of the Waltham victims. See J.A. 969. When investigators challenged Todashev’s denial of involvement in the Waltham crime, Todashev had every reason to deflect blame for the murders by minimizing his own role and exaggerating Tamerlan’s, especially because Tamerlan was dead and could not rebut Todashev’s account. (46, emphasis mine)

Heather: Aside from this argument being stupid, I just wanted to highlight the information in bold as new information about the Waltham triple murders. I’ve never heard either of these things before (although I do recall that Tamerlan remained in town and “seemed unaffected” by the murders, whatever that means). As usual so much about the Waltham murders have been clamped down and kept out of sight of the public and things only now are leaking out here and there. 

If anything, Todashev’s story tends to undercut, rather than support, respondent’s suggestion that Tamerlan strongarmed him into participating in the marathon bombing. (47)

Heather: I find it fascinating that the duress defense is always lurking below the surface in all these convoluted legal arguments, and every so often it surfaces. 

Eric: Agreed. And they try so hard to deny it, and so specifically, that all it does is convince me that it’s far closer to the truth than anything the government claims.

The Waltham evidence also undercut, or at least complicated, respondent’s theory that his willingness to commit murder was solely the result of Tamerlan’s influence. Respondent’s friend Kadyrbavev’s proffer that respondent had described Tamerlan as committing “jihad” in Waltham, J.A. 583-584, indicated that respondent admired Tamerlan’s perceived religiously motivated murder, not that he saw Tamerlan’s actions as intimidating. (47)

Heather: That’s a hell of an assertion. That the use of the word “jihad” has to both mean violence and also that Jahar was into the idea? We know literally nothing about this alleged conversation between Dias Kadyrbayev (the government misspelled his name here, by the way) and Jahar. It would have been super easy to produce Dias at trial to testify about it — he was in custody at the time himself — but the government didn’t. If it would have helped their case so much to prove Jahar was “radicalized” and excited about helping out Tamerlan, why didn’t the government do it? Plus what a disingenuous argument; the defense uncovered this information and brought it up on appeal with the express intent to show it was a piece of the puzzle that indicated Jahar was afraid of Tamerlan. If it would have hurt their client’s case, they wouldn’t have brought it up in the first place.  

The court of appeals’ speculation that jurors might have concluded that respondent was intimidated by Tamerlan into committing the marathon bombing, Pet. App. 76a, was overwhelmingly refuted by the trial evidence, which confirmed that respondent had a life and mind independent of Tamerlan’s. Respondent lived 60 miles away from Tamerlan, with his own car and his own friends. See J.A. 690, 889. (51)

Heather: Funny, that’s the argument I’ve used when trying to refute the government’s claim that they were conspiring to commit the crimes together. Now suddenly they spent all this time apart and didn’t hang out very much? 

Eric: It’s Schrodinger’s defendant. He doesn’t spend enough time with his brother to be scared of the fact that he might have murdered three men, but does spend enough time with him to build weapons of mass destruction and intimately plan a terrorist attack.

On the Trial Judge Failing to Properly Screen Jurors for Bias

Jahar on the July 2013 cover of Rolling Stone, part of the relentless onslaught of negative and inaccurate pretrial publicity.

The district court summoned an expanded jury pool, screened it with a lengthy questionnaire that included multiple questions about pretrial publicity, and then conducted a 21-day voir dire—with follow-up questions from the parties—probing jurors on their exposure to publicity and many other topics. The result was a set of “provisionally qualified” jurors “capable of providing [respondent] with a fair trial.” Id. at 240a. 

The court of appeals’ later invalidation of that process is unsustainable. The court improperly invoked its “supervisory power” to impose an inflexible mandate that this Court has previously rejected as a constitutional prerequisite for selecting an impartial jury—namely, a requirement to question all prospective jurors “about the specific contents of the news reports to which they ha[ve] been exposed.” Mu’Min v. Virginia, 500 U.S. 415, 417 (1991). In doing so, the court of appeals deviated sharply from this Court’s precedents reviewing federal jury-selection procedures and gave short shrift to the superior perspective and conscientious efforts of the district judge to address pretrial-publicity concerns through individualized interviews rather than inflexible scripts. (22-23)

Eric: They’re making a big argument of saying that O’Toole, the trial judge, made sufficient inquiries to the jurors because he interviewed each one not with a specific and agreed-to script of questions but by tailoring his questions to the past responses of the jurors. This, to me (and to the court of appeals apparently) is flawed because it doesn’t take into account any potential bias of the judge himself, nor does it take into account possible responses to questions that just aren’t asked because the judge didn’t feel they needed to be. A pre-arranged script would have to be signed off on by the court after possible objections were heard by the prosecution, and it seems to me that this would be the most even handed and fair way to ask the necessary probative questions to the jury. 

Heather: This is a really excellent point. I think that plays into why the First Circuit emphasized the “content-based questions” part of the questionnaire so much. I don’t think bias in the judge himself has ever been brought up (though clearly it exists in this case – in O’Toole and the First Circuit judges), but in theory asking content-based questions would help a judge get away from their own biases, if they adhere to a pre-scripted standard, as you point out.

The decision below also disregarded the practical realities of a jury pool unlikely to have comprehensive recall of specific news items, a defendant who conceded the facts to which the media coverage primarily related, and a deliberative jury that ultimately rejected the death penalty for many of respondent’s capital crimes. (22-23)

Eric: Also, they again trot out the “they didn’t impose the death penalty for all of the convictions so they must not have been biased” argument briefly. I think I’ll just let the direct quote from Judge O. Rogeriee Thompson’s inquiry to the government’s lawyer during the actual appeals hearing answer that one: “You can only die once, how is that relevant?”

Heather: Oh yes, that was my reaction too, that quote from Thompson specifically.

A different panel of the court of appeals nonetheless undid the district court’s and the jury’s work after the fact, based on a previously unmentioned “supervisory rule” requiring a district court to ask every potential juror to try to recall specific news items related to the case that he or she may have encountered years earlier. Such questioning, however, is not a prerequisite for an unbiased jury, and the court of appeals’ rigid mandate is a sharp, unwarranted, and impractical departure from this Court’s own deferential and case-specific approach to reviewing voir dire. This Court should make clear that the court of appeals erred in imposing such questioning as an inflexible rule. (25)

Eric: Ugh. Again the government seems to imply that the defense was requesting full-on bibliographies of everything the jurors might have read on pre-trial media of the case. The defense wanted to know the general sources viewed (presumably so they could try to rule out jurors who only watch Fox News or Brietbart or the like) and their general impressions if any. The government’s argument here is a ludicrous exaggeration of what was being asked. 

Heather: Excellent point. A lot of the government’s arguments here seem deliberately disingenuous, which makes me wonder how much of this was crafted by the Trump people (it does echo the request for certiorari pretty soundly), back when… you know, facts just didn’t matter. 

“It is not required * * * that the jurors be totally ignorant of the facts and issues involved” for a defend-ant to receive a fair trial. Irvin v. Dowd, 366 U.S. 717, 722 (1961). Instead, the Sixth Amendment requires an “impartial jury.” And “juror impartiality * * * does not require ignorance.” Skilling, 561 U.S. at 381. (26)

Eric: The government makes a big argument about how Skilling v. United States discusses how to handle pre-trial media coverage and how it is interpreted to give the presiding judge wide latitude in voir dire to determine if it has impacted a juror’s impartiality, but what I’m not seeing is any discussion about how being directly impacted by the crimes committed could impact them as a factor. 

The government may want to gloss over it, but by refusing to change the venue (which the government is also arguing was a fine choice) meant that Judge O’Toole now had people in the jury pool, and then on the jury, who were directly impacted by the events of the lockdown and manhunt or whose loved ones were. For me personally, I and my roommates were all home that day, concerned about another attack. Even though obviously nothing happened, that has an impact.

All 12 stated both on their questionnaires and at voir dire that they had not formed an opinion regarding punishment—the only part of the verdict that respondent ultimately contested. See Pet. App. 60a; Gov’t C.A. Br. 174 (table of jurors’ responses). And all 12 indicated “that they could adjudicate [the case] on the evidence as opposed to personal biases or preconceived notions.” Pet. App. 41a. (31-32)

Eric:  I’m over halfway through this thing and I have yet to see any discussion about the two jurors who seemed to have established pre-existing opinions despite what they answered on the questionnaire or (presumably) told the judge. In fact, they argue that because the jurors answered that they had not formed an opinion but this flies in the fact of later evidence that two of them may well have said that just to get onto the jury. 

Heather: Yeah and they even put this right in their argument header:

A juror can be impartial even if he or she has seen, and formed opinions based on, pretrial publicity (26, emphasis mine)

And that’s the whole point of the First Circuit’s decision — that jurors cannot be judges of their own impartiality. That just asking them “although you’ve formed opinions, can you set those aside?” is not enough. You need to canvas them through the “content-based questioning” in voir dire

This whole argument makes very little sense to me — including the omission of the jurors who did demonstrate being tainted by pre-trial publicity. It’s likely going to force Jahar’s lawyers to make their initial appeal arguments all over again, which is why the First Circuit ruled in their favor in the first place. Which makes all of this feel like a giant waste of time.

For example, in response to the district court’s request that he elaborate on his answer to Question 77, one juror acknowledged a preliminary impression that “obviously [respondent] was involved in something,” but emphasized that he nevertheless viewed respondent as “innocent until proven guilty.” J.A. 312  (Juror 83). The district court did not simply accept the juror’s assurance but probed more deeply, asking “how would you handle whatever ideas you’ve had from before the trial?” J.A. 313. The juror answered that he would make his decision “based on the evidence presented” after “listening” to the witnesses “and what they say.” J.A. 314. Defense counsel then followed up on the juror’s statement that respondent was “involved in something.” J.A 317. In response, the juror clarified that while he had viewed it as unlikely that respondent could show “a case of mistaken identity,” he didn’t know “exactly what” respondent had been “involved in” or “how.” J.A. 318. And the juror recognized that he “d[id]n’t know enough” to have a view on the appropriate penalty. J.A. 320. (32)

Heather: Although presented as an example of how they were able to properly do voir dire, I don’t find this to be a particularly good one. It still sounds like the juror is definitely showing bias against the defendant.

In invalidating respondent’s capital sentences, the court of appeals did not conclude that any particular juror had been biased by pretrial publicity or unable to render a decision based on the trial evidence. (33)

Heather: This seems like a bad faith argument. Maybe they didn’t say so specifically but the idea that jurors cannot be arbiters of their own impartiality definitely seemed to be fueled by the examples given to the First Circuit judges of just how tainted the actual seated jurors were. 

 “The jury during guilt-phase deliberations sent two notes inquiring about accomplice liability, “suggest[ing] patient and careful deliberation,” not “a jury inflamed by prejudice, eager to return a verdict adverse to” him. (33)

Eric: In other words they were perhaps trying to ascertain how much culpability Jahar had. If only they had been exposed to some nuance to understand what led to him being at the Marathon that day since they seemed to view him as an accomplice to his brother and not the mastermind.

The Patriarca panel did not have the benefit of Mu’Min and looked to jury-selection procedures proposed by the American Bar Association as a  model for its approach. See Patriarca, 402 F.2d at 318  (citing 1966 draft standards). But Mu’Min rejected reliance on a later version of those same standards. 500 U.S. at 430-431 (citing 1980 standards). The decision below, in turn, ascribed Patriarca’s “rationale” to a concern that the judge have an adequate basis for the evaluation of impartiality, which it feared might otherwise rest on a prospective juror’s own assurances. Pet. App. 51a, 56a-57a. But assessments of juror impartiality necessarily rely on such assurances to a significant degree; that is precisely why reviewing courts defer to trial courts’ ability to gauge a “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Skilling, 561 U.S. at 386. And while “[q]uestions about the content of the publicity to which jurors have been exposed might be helpful” in some cases as part of the broader informational package Mu’Min, 500 U.S. at 425, such questions are not so universally necessary that inflexibly requiring them is an appropriate prophylactic. (39-40)

Eric: The government’s argument that Mu’Min was ruled after Patriarca and seems to countermand it could be an interesting point, but to be honest I’m not well versed enough in legal precedent or the specifics of each ruling to opine with any authority on the matter. 

Heather: I found that to be the only part of their argument that might hold water, but I think there’s some nuance missing from their claim. I did read over the case law of the Mu’Min decision, and my general sense is this decision is most relevant in determining whether there is presumed prejudice in a jury based on pretrial publicity, not actual prejudice displayed in the seated jurors. There are two quotes that stand out from Mu’Min. The first is this:

“Although 8 of the 12 [jurors] eventually sworn admitted that they had read or heard something about the case, none indicated that they had formed an opinion based on the outside information, or would be biased in any way.”

This is significantly different from the voir dire in Jahar’s case. Most of the seated jurors did indicate they already believed Jahar to be guilty, but that they could “put aside” that opinion and instead decide the case based on the evidence — that is, they indicated their bias, then insisted they could still be unbiased. That was what the First Circuit judges took issue with, rightly. 

The second telling Mu’Min quote is this: 

“Moreover, although content questions might be helpful in assessing whether a juror is impartial, such questions are constitutionally compelled only if the trial court’s failure to ask them renders the defendant’s trial fundamentally unfair.”

So, in asking to reinstate Jahar’s death sentence, the government is in essence claiming that the pretrial publicity wasn’t so bad as to taint the jury pool, and therefore the trial judge was not constitutionally required to use the content-based questions that the First Circuit wanted him to. However, there is plenty of evidence that O’Toole’s failure to do this rendered Jahar’s trial fundamentally unfair. Not only did most of the seated jurors already think he was guilty, but we have evidence that at least two jurors expressed derogatory opinions of Jahar, one calling him a “piece of garbage” and another secretly sharing information about voir dire on Facebook, where a friend urged him to lie to get on the jury so he could send Jahar to prison where he would be “taken care of.” If that’s not evidence of a fundamentally tainted jury, I don’t know what is. Mu’Min had no evidence that the seated jurors were biased in this way. 

This might explain why the government conveniently forgot to mention those two jurors and their obvious expressed prejudice — it really hurts their Mu’Min argument. 

Eric: This is great work, Heather. Well done.

Heather: Aww, thanks. I don’t know if it’s as good an interpretation as one from a legal expert, but that’s what I took away from it.

Eric: The government seemed to want to make it like the First Circuit settled on Mu’Min for no reason (and not for nothing but I picked up an unspoken whiff of “these judges are old and out of touch so not up on current case law” in their argument) and you point out why, no, it’s actually highly relevant.

Heather: Yeah, I agree that the government brief makes it sound like the First Circuit didn’t understand Mu’Min, when it’s like, No, Mu’Min actually isn’t saying what you want it to. 

Eric: Exactly! Maybe three judges who spent their lives practicing law to the point that they reached the level of federal appellate judge know a little more about case law than the writers of this brief like to think they do. 

Moreover, as the district court recognized, it is that prospective jurors, two years after the fact, could have produced a “reliable” list of what they might specifically have seen and heard. J.A. 494. Thus, unless the court was prepared to disqualify everyone whose recall seemed deficient, the parties and the court would inevitably have had to evaluate prospective jurors without a complete—or, in many cases, even close to complete—record of their media exposure. … Even if the district court had gleaned a supervisory rule from Patriarca, applying that rule would have had little benefit. As the court of appeals recognized, most of the publicity about this case was either “true” and thus (among other things) subsumed within respondent’s admission of guilt, or else “trivial” and thus not likely to bias jurors. (41)

Eric: Again the government is claiming that the appellate court’s ruling is demanding a bibliography of media consumed by the prospective jurors. That was never the argument the court was making and they know it. This bad faith argument is infuriating.

Heather: Yeah, and the publicity wasn’t “true,” it was highly inaccurate and inflammatory. It was also not uniform across the country. I’ve since lived in Seattle and New Mexico while working on this case and what people were exposed to in those places compared to Boston is night and day. 

Eric: The further argument that everything else was trivial is likewise inaccurate (if I remember correctly, the Boston Globe reporter Kevin Cullen was reprimanded for making things up) and is likely part of the problem since Jahar’s unconstitutional confession was highly publicized and yet disallowed at trial. So if that was among the things a juror recalled it potentially creates a big problem for impartiality which was the entire point of wanting the question posed in the first place.

Heather: Finally, and my dad and I have discussed this at length in our podcast episodes about the First Circuit decision, but the fact that Jahar “admitted guilt” should not subsume any argument about the taint of pretrial publicity. His lawyers only stated that he was involved in the bombing in their opening statements, after trying and failing to change the venue. They knew at that point the jury pool was hopelessly biased and were trying only to spare his life. Jahar never pled guilty, nor did his lawyers say that everything the government alleged about him was true, as the First Circuit decision claimed. I think that was just a politically convenient way for the appellate judges to get out of overturning all of his convictions. That whole assumption needs to be challenged.

On the Argument that State-Sponsored Murder is Simply Easier than Justice

Respondent’s trial was lengthy and, for many victims of his crimes, painful. The penalty-phase proceeding required many victims to testify about the terror that respondent inflicted on them and the ways that their lives continue to be permanently altered by his brutality. See pp. 13-14, supra. Another penalty trial would come at the significant cost of requiring those victims to return to court to “relive their disturbing experiences.” United States v. Mechanik, 475 U.S. 66, 72 (1986). And it would entail selecting a new jury through an unnecessarily onerous process that promises to be even longer and more burdensome—but no more effective—than the original. Nothing justifies that result. (42-43)

Eric: The government argues that impaneling another penalty phase jury would be hard on the victims and incredibly difficult and costly. Uh… then don’t do it. It’s not like he’s going to be set free, maybe don’t try so hard to murder someone?

Heather: Yeah, it’s kind of hard to believe this is an actual argument they’re making. It amounts to “it would be such a hassle to try him again, so let’s just kill him!” And super hypocritical, as it’s the government’s fault there was a lengthy trial in the first place — Jahar could have pled guilty and gotten life but the government refused to take the death penalty off the table and so they went to trial. Where was their concern for the “pain” of the victims then? 

Eric: Spectacular point.

Heather: There are so many more unanswered questions about this case, so many discovery violations, so much law enforcement and prosecutor misconduct, that I think Jahar deserves an entirely new trial from start to finish. But this just shows how lazy and unconcerned the US government is about actual justice, and it drives me mad.  

Eric: Don’t worry, I’m sure it’s the only time this has happened in the history of the United States.

Heather: Sigh.

Overall Assessment

Eric: First of all, I can’t help but notice that the government makes no mention of the issues that cropped up with the jurors who commented on the case online with some indicating pre-existing bias (and one who had a commenter who actively advised saying what he needed to to get on the jury and then have him “taken care of” by sending him to prison). 

I can’t speak to their arguments about which precedent should override which other, as I don’t have a legal background, but the government’s arguments seem to boil down to little more than “nu-uh” to the appellate court’s decisions and they don’t seem to introduce anything new to bolster their argument for why they think Judge O’Toole ruled correctly. Perhaps that’s the nature of appeals of appeals.

Heather: The thought I keep coming back to is “what a waste of time.” You’re right, there’s nothing of substance argued here; it’s all just a rehashing of the government rebuttal on the appeal to the First Circuit and hoping SCOTUS will see it their way. 

Eric: Again, I’m no legal expert, but it seems clear to me that Judge O’Toole was not acting in an impartial manner throughout the proceedings and the trial. The result of that is that some of the decisions are going to be overturned. Jahar should have been allowed to present a case of duress and that includes a reason for why he might have legitimately believed that his brother would actually harm him if he didn’t go along with his demands (which, as discussed, having a legitimate cause to think he was a murderer or accomplice to murder is pretty relevant). 

Heather: The government’s bad faith arguments are especially exhausting to me. At this point it seems like they’ve forgotten the story they argued to the jury in the first place. At the trial level everything was about Jahar’s “radicalization” and who radicalized him and why. On appeal the defense thankfully dropped that narrative entirely and has been edging ever closer to admitting he could have had a duress defense if he’d been allowed to put one on. The government has seemed to abandon the whole “radicalization” story too (the word doesn’t appear once in this brief), but what it’s replaced with is arguably worse. Islam is mentioned sparsely, to the point where they cut out Arabic words in their quotations, yet the whole “religious indoctrination” assertion remains. Honestly this makes their case more Islamophobic in my mind. It’s like they cut out the middle man and have been tacitly admitting Islam makes these Muslims violent, so why bother with all that “politically correct” BS? Which reeks of Trump era rhetoric, in my opinion. 

Eric: The claims of “he was proud of what he did because he was such a violent and extremist Muslim bent on jihad” made me roll my eyes. They keep trying to paint him as such even though the evidence doesn’t prove it. 

At the end of the day, I’m just disappointed that my tax dollars are going to try to execute a guy when the case investigating his motives has been so slipshod. What is lost by letting him remain in prison rather than ending his life? 

Heather: We’re limited by not having the defense’s response brief yet, but man, they are going to have their work cut out for them. I am appalled by how many factual errors exist in this brief alone. If you were to come to this case without reading anything but this brief, my God, you’d have no idea what was going on. 

There’s so much with this case that still needs to be addressed, including arguments Jahar’s lawyers wanted to bring to a higher court. I have no idea if that’s going to be addressed here or what. To me it just feels like they’re wasting time arguing things that don’t matter when they could be looking at some real issues with this case that speaks to the very heart of our justice system. Instead we’re all going through the motions dealing with the remnants of Trump’s fascist fantasies. 

Eric: Yeah, I agree that the whole “Islam = fundamentalist murderer” theory is obvious here, which is certainly Trump-a-riffic. I too really want to see the defense’s response to this, and I wonder if they will bring up the topics that are, frankly, more relevant to this case. I think you’re going to be disappointed if you expect them to put capital punishment itself on trial (as much as it should be) but there are far more glaringly obvious problems with the case than that which was discussed here (by design by the government no doubt, as they’re pretty indefensible, in my honest opinion).

My sincere hope, as much as that brief will be enormous and we’ll have to read it, is that the defense will touch upon it in their response.

Heather: Agreed. I can only pray Jahar’s defense team won’t take this lying down. His lawyers are expected to file their response brief soon, so for the moment, this discussion is to be continued. 

I would like to give a final thank you to Eric Bowsfield for all the work he contributed to this article. As always, thanks for reading and stay tuned.

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