tv Justices Hear Case on Boston Marathon Bombers Death Sentence CSPAN October 13, 2021 4:19pm-5:56pm EDT
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in case 24-43, united states versus tsarnaev. mr. feigin. mr. feigin: thank you, mr. chief justice, and may it please the court. after watching video of respondent by himself personally placing a shrapnel bomb behind a group of children at the boston marathon, the jury in this case returned a nuanced verdict unanimously recommending capital punishment for that specific deliberate act. the court of appeals should have let that verdict stand. instead, it unearthed a previously unmentioned supervisory rule to invalidate a careful and lengthy jury selection process that a prior panel had praised. that process reasonably favored individualized voir dire over focusing every prospective juror on pretrial publicity through rote content questioning that would have been unhelpful.
the court of appeals then again usurped the district court's discretion by insisting that the jury had to hear unreliable hearsay accusations against respondent's brother by a dead man with a powerful motive to lie. we'll never know how or why three drug dealers were killed in waltham in 2011, and none of respondent's evolving theories justifies inserting that separate crime into the penalty phase proceedings for respondent's own individual participation in the 2013 marathon bombing. and even if the court of appeals had identified a misstep in one of the hundreds of judgment calls that this complex trial required, any error here was harmless. the the experienced district judge empaneled an impartial jury which heard overwhelming evidence about respondent's own actions and motivations and rendered a sound judgment against a motivated terrorist who willingly maimed and
murdered innocents, including an eight-year-old boy, in furtherance of jihad. justice thomas: mr. feigin, one question before you get too deep into your argument. what test should we use? the first circuit said that it was exercising its supervisory authority. what test should we use to review that exercise of authority or to limit that authority? mr. feigin: well, i think there are two separate questions there, justice thomas, that the court would need to consider, and deciding either one of them in our favor or deciding that the application of the rule was harmless error would result in a judgment in the government's favor here. but the first question, reviewing the supervisory rule, is whether the court of appeals had the power to enact the rule at all, and the second is whether this
court, exercising its own supervisory power, would find that rule reasonable. as to the first question, i think the fundamental problem with this rule is that it divests district courts of discretion that this court has repeatedly insisted that they have over jury selection. if you look at, for example, page 424 of the court's decision in mu'min against virginia, the court emphasizes that not only in constitutional review but also in exercising supervisory power over the federal courts, it has given district courts wide discretion over jury selection because they're there and they can see the jurors as they're individually questioned and are also familiar with local conditions. as to the second inquiry, i think the main point here would be that although such questions can be helpful in some cases, they're not invariably helpful, and the district court had sound reasons for thinking that they would be unhelpful here.
i'd also note that on the third point i made, justice thomas, that the court of appeals, in devising this rule, clearly has a prejudice inquiry built into it. that's clear from page 60a of the petition appendix. that's consistent with the one supervisory rule that this court has made in this context in -- adopted by a plurality of the court in rosales-lopez. it's why the court of appeals left the guilt verdict in place here. i think the same analysis ought to apply to the penalty phase verdict. you had a two-year gap between the events and the trial. most of the publicity, as the court of appeals acknowledged, was factual, most of it related to guilt, which respondent, in fact, conceded. the jury was repeatedly admonished to disregard pretrial publicity.
there were questions on the hundred-page questionnaire that went to any potential bias from pretrial publicity, as well as the sources and the amount of pretrial publicity that each prospective juror had seen. there was follow-up questioning in the individualized voir dire about that particular question, question 77, with virtually every prospective juror and all the seated jurors. none of the seated jurors expressed a predisposition to impose a capital sentence -- justice thomas: i don't mean to -- all of that makes sense, but i am looking more for the standard that you would apply. what would be euro? assuming you accept to some extent the supervisory authority of the first circuit, what would be your rule for reviewing the exercise of that authority? mr. feigin: your honor, i think, if the court accepts that the court of appeals can dictate to district courts how to do this,
i think this court ought to just be reviewing the rule to see whether that was a sound and reasonable exercise of the rule, bearing in mind that it is an exercise of supervisory power that the court of appeals is imposing in a context where district courts have the utmost discretion. justice thomas: do you think -- would we review it as an -- the first circuit exceeding its supervisory authority in the sense that normally that authority is exercised, say, on local procedures or something like that? or are you saying that we should review it in this area for something like reasonableness?
mr. feigin: well, your honor, i think you could do, frankly, either. i think, at the threshold, the court ought to ask whether the court of appeals exceeded its authority in even enacting such a rule. if you look at the court's decision in payner, it -- it is a clear expression by this court that courts of appeals shouldn't invoke their supervisory power as an end-around to the reasoning of this court, which is, i think, what the court of appeals has done here. the second way you could look at it, justice thomas, is more of a whether assuming it actually had the authority to do this, should it have done so. if you look at this court close this other supervisory rule decisions where, even accepting the court of appeals might have had the authority to enact some rules in this area, enacting a hard-and-fast rule like this that would at least be rigid enough to divest the experienced district judge in this case of his sound discretion to determine that these questions wouldn't be a helpful addition to the mix of information already available to the parties
and that it could be addressed , through individualized voir dire. and that the questions might even be counterproductive by focusing the prospective jurors on something that the judge was at the same time instructing them that they should disregard, to the extent the rule is that wooden and that rigid, it is an unreasonable supervisory rule, justice thomas. justice alito: well, to go back to the beginning of your answer to justice thomas, do you dispute the authority of the courts of appeals to issue some requirements under its -- under their supervisory power? mr. feigin: certainly not as a general matter, your honor. i think it's a little bit more circumscribed when it comes to jury selection procedures because of this court's repeated emphasis on the discretion that district courts necessarily have to have. justice barrett: where does that authority come from? mr. feigin: your honor, we're
following this court's cases, which appear to presume that this court has some supervisory power, and have an especially -- justice barrett: well, our 11 supervisory power would be different than the court of appeals' supervisory power over district courts, right? are you just, because we've assumed in some cases that courts of appeals have it, relying on our precedents? mr. feigin: your honor, we haven't questioned whether courts of appeals generally have supervisory power. i suppose one other way to decide this case in the government's favor would be to take issue with that, but we haven't questioned that specifically. justice sotomayor: mr. feigin, if we took question with that, it would upend a whole bunch of rules, some of which in mu'min itself we endorsed, but there are local rules about making sure that a pro se prisoner knows that he or she, what rights they're giving up if they're going to proceed pro se.
there are local rules on what you have to do if you're going to dismiss a complaint, letting pro se litigants have an opportunity to cure their deficiency. we have local rules on waivers of all kinds, including jury waivers. there is a lot of local about adequate process. they're not changing outcomes, they're saying to courts, before you exercise your discretion, make sure that these things have happened. so are you taking, are you suggesting that we should take aim at those local rules? mr. feigin: no, your honor, let me emphasize two quick points. we have not questioned the supervisory rules. >> why did we spend two or three paragraphs talking about local
rules? mr. feigin: in response to your original question, we're also not questioning, i didn't take justice barrett's question to get at the separate issue of for example local rules that district courts enact for themselves. however, the court did note the existence of some supervisory rules in this context. there might be a question as to how far each of those rules at the time would have extended to cover this case, but i think the reasoning again, i would point the court back to page 424 of that decision makes clear that in exercising its own supervisory power, this court has not dictated specific forms of questioning, even in the most sensitive context with the supervisory role adopted by the
plurality. to have a wooden rigid rule that dictates specific -- >> the rule was very simply stated in patriarch which was ask some questions to the kind and degree of publicity that is out there and the court permitted degree, it permitted people to tell how much they had read, a little, a lot or moderate amount, but it didn't permit questioning as to what kind of publicity. there was a whole lot of different publicity here. there was publicity on the day of the event. there was publicity on days after. there was publicity about what major politicians and others were suggesting the punishment should be. there were interviews of victims. there was a whole lot of
different kinds of publicity. and the district court and the government objected when counsel attempted to elicit that kind of information. that seems like an extreme control over trying to figure out what someone, whether someone could have been influenced by that publicity. mr. feigin: a few points, first of all, the government did not always object. if you look at pages 733 to 735 of the court of appeals appendix in this case, you'll see the district court emphasizing that these questions would be allowable on a juror specific basis depending on the previous answers that the juror had been given. as to the kinds of publicity, they didn't ask any questions requesting whether any jurors had seen specific types of
publicity. i think the reason they didn't do that is because they didn't want to focus the jurors on those kinds of things like what opinions people might have expressed about the death penalty. >> what stands out in your mind about all of that publicity? it seems to me that's not asking for details of everything you have read, but what has influenced you or affected you enough for you to remember it? that seems like a totally appropriate question to me. mr. feigin: i think as respondent's own council pointed out, page 480 of the joint appendix, a question like that is unlikely to be particularly useful in a case like this because everyone saw the same coverage so they were all going to say the same things, the carnage at the finish line, the chase in watertown, the killing of officer collier, the manifesto -- >> does that tell you someone
that says something else, if you ask a juror that and the juror says i listened to victim x and that certainly would be information relevant to i defense attorney and even to the prosecution. mr. feigin: well, your honor, i push back a little bit on the idea that there wasn't questioning that got at the kinds of publicity that the jurors had seen. many of the jurors volunteered such information, there were occasions when respondent's counsel was able to ask that question or there was some other revelation of some media coverage that some particular juror had seen, the jurors were extensively questioned on their views on the death penalty in particular and if the jurors were biased on that by something, that might have itself come out in the course of that questioning. >> also we call this, it's been
called a supervisory rule, i'm going to argue a case in circuit court of appeal, you look at the rules, there is usually a little pamphlet saying these are the circuit rules. they may be supplemental to the court of appeals rules, what makes this a rule? it seems to me that it's really nothing more or less than a precedent. is there a collection of these supervisory rules somewhere, this is rule 22, what? mr. feigin: well, your honor, i don't think i'm going to really dispute what you just said. i think everyone was actually taken by surprise that there even was such a thing as the patriarchal rule given that no one had cited in the district court including the court of appeals itself when it was reviewing jury selection procedures in a mandamus petition about venue, it
praised -- >> should we consider this requirement in any way different from the way we consider any precedent because it's labeled the supervisory rule? mr. feigin: if anything, your honor, i would give it less rate, it affirmed the denial of a venue change. so i really don't -- >> if we issue an opinion and we write it and it has a particular holding, i think the author would probably be very happy to say, you know, our rule going forward is this, but that's just saying it's a precedent. i don't know attaching a label to it. i mean just soto mayor is right, there are rules governing several things, but this is a rule of law, i don't see what's gained by calling it a rule, supervisory rule.
mr. feigin: i agree with that, your honor, the reason labeling it as such and the reason things are labeled as supervisory rules, they are advisories of rules going forward to district courts telling them if they don't do something in the future, they will be reversed. >> we tell them, too, if they don't follow this particular law in the future, they will be reversed. i don't know that any one of our cases governing district court practices is a supervisory rule? mr. feigin: i think it is particularly geared toward areas like case management where they're just trying to put district courts on notice. i think that is an actually a fairly poor characterization itself which kind of renders this as something of avis ri note at the end of deciding something else. so i'm not even sure. >> isn't it the distinct that it's not based on the constitution and it's not based on a statute or a regulation.
it is a rule that is adopted by a court for the purpose of protecting a constitutional right, but there is no, there is no, the proposition is not that this is required by the constitution, is that the distinct? mr. feigin: i think that is one distinct. it's not required by the constitution. the court is drawing that distinction in this particular line of cases where it's been somewhat stricter in reviewing federal courts than it has been in reviewing state courts, that's quite clear, for example. i think it definitely exceeds a
court of appeals authority to impose such a rule that contradicts the way that this court has handled similar situations. >> mr. feigin, can i turn to the question in this case. i'm having a difficult time teasing parts the arguments that the district court acted within its discretion in refusing to admit the evidence about the participation in the murders. i give you a little bit of a hypothetical or maybe it's not a hypothetical. maybe it's just asking you to assume something that you contest, which is assume for me that the evidence was very strong that he participated in and he had a leading role in the murders. so assume that the evidence is strong with respect to that. in that case, would the court
have committed reversible error by refusing to admit that evidence? mr. feigin: your honor, i think that would be a much for difficult today's core us. >> i'm asking in that difficult case, would the court have committed reversible error? >> your honor, assuming and one point i want to emphasize in district court here, they did not assert, this is pages 668 -- >> mr. feigin, can you answer the question. >> it would depend whether there is some assertion that respondent was aware of it which is an assertion they did not make in district court. >> i thought they did, but it was earlier in the case. >> let's just assume, yes, i'm saying the defendant was aware of it, now answer the question. mr. feigin: if the defendant was aware of it and strong evidence of it, i think the district court should have let it in. neither of those were true here. >> and i assume that you say
that because the evidence assuming it was strong, the evidence clearly is, you know, goes to a mitigating factor, the entire point of the defendant's mitigation case was that he was dominated by unduly influenced by his older brother and that would have gone to exactly that point, is that right? >> your honor, you have the knowledge combined with the strong evidence, i think that might well have done it, particularly if it could have been done in a streamlined fashion. you look at pages 68, 69 -- >> if that's true, mr. feigin, your entire case rests on the notion that this evidence just wasn't strong enough, that it was too, i don't know what else to call it. it didn't establish that he had
aplayed a leading role in the murders. how is that the job of a district court to evaluate much less decide that question? i would have thought that once the district court says this is obviously related to his sentencing defense, in other words, it goes to his own culpability, it certainly confirms, if it were true, the mitigating factor that he was unduly influenced by his brother, at that point it's the job of the jury, isn't it, to decide on the reliability of the evidence to decide whether it's strong evidence or weak evidence that he in fact played a leading role in those other gruesome murders? mr. feigin: a very quick threshold point, again, there is the knowledge issue here, if you look at page 668, 669 -- >> i'm assuming the knowledge issue. mr. feigin: assuming knowledge -- >> i don't even know that knowledge is all that important. even if he didn't know, the fact
that his brother was the kind of person who played this leading role in these gruesome murders tells you something about the role he might have played in this murder irrespective of knowledge, at any rate, let's assume that he had knowledge. mr. feigin: let me say a couple things directly responsive to your question. everyone agrees that reliability is an important consideration here. if you look at pages 16, 17 of their brief, page 30 of their brief, they agree with that. you have to balance that against the probative value of this evidence. i don't think the evidence really would have added much to the mix of information we already had about, for example, who planned the boston marathon bombing. >> think about what you're just saying, mr. feigin, this court let in evidence about poking somebody in the chest. this court let in evidence about shouting at people. this court led in evidence about
him assaulting a former student, fellow student all because that showed what kind of person he was and what kind of influence he might have had over his brother. and yet this court kept out evidence that he led a crime that resulted in three murders? mr. feigin: may i respond mr. chief justice? >> certainly. mr. feigin: your honor, one thing to bear in mind, these crimes are extremely different. the walton crime did not involve respondent. it was very differently motivated. even if you accept everything he said, it was a financial crime where the murder was committed by knife in order to cover up who had committed the robbery of three drug dealers. that is a far cry from a sophisticated public spectacle that required reading directions
in a jihadist magazine to build and construct bombs and deliberately placing them at the finish line of the boston marathon. >> it's differently that he yelled in a mosque and assaulted a fellow student and it's different that he yelled at people. but all of this was admitted to show what kind of person he was and what kind of influence he had over his brother. and yet the court, again, you know refuses to admit evidence of a gruesome murderous crime in which according to the evidence that was kept out, he had extraordinary influence over a co-felon in getting him to murder three people. mr. feigin: your honor, he denied murdering. he was out by the c.r.v. when all of this happened. this is very unreliable evidence because he had every incentive to pin this entire thing on him
who at that point was already dead and they knew they were looking for him. i encourage the court to read the transcript of the interview according to him, 947 on the joint apen difficult. he says to him, ok, if you will not kill them, i will do it. >> isn't that exactly the kind of thing that the prosecutor would have said to the jury about why they shouldn't believe that evidence, but isn't this a classic case in which the evidence understood one way is highly relevant to a mitigation defense and the evidence understood in the way you just suggested, you know, just says, that's crazy, it didn't happen that way, but that's what a jury is supposed to do, isn't it? >> mr. feigin: your honor, unlike the other evidence that you have cited, there was going to be no cross-examination here. the only people that might have knowned what happened in waltham, both of them were dead. this investigation had hit the
end of the road. there was no way to figure out what happened. the district court reasonably determined that. we're here on abuse of discretion review. and more over, i think everyone agrees that this is subject to harmless error analysis. if you look at all of the other details that the jury heard and i'm happy to list them all -- >> mr. feigin, along the same lines, you say on page 39 of your brief that under the federal death penalty act, the countervailing interests that would justify exclude evidence, you can do that if they outweigh the information's probative value. you note that on the other hand under the federal rule of evidence, if the countervailing interests substantially outweigh, do you really think that's a difference in practice? i thought that we err the other way, under the federal death penalty agent, we want
countervailing act that would affect the sentence that comes in more easily than we would with respect to general rules of evidence. mr. feigin: if i could, too, two points in response to that, your honor, first, i actually does think it does make a difference, rule 403 which has the word substantially in it exists as a back stop to bolster other rules of evidence that already insure reliability like the here say rule and the best evidence rule, whereas section 3593c substantially lowers the bar for the admission of evidence in the penalty phase of a capital trial, but nevertheless leave the district court with some tools to insure fundamental reliability and insuring that the evidence is going to be appropriate to the case. and the second point i would make is just what negative effect i think introducing the evidence here would have had. it would have sidetracked the
proceedings and consumed a disproportionate amount of it focusing on him, not the respondent and everyone agrees, and this is at page 668 of the joint appendix which is their response to seek to exclude this, this isn't just a comparison game where the jury is invited to decide whether either is the worst person and decide that capital punishment is only appropriate for that person. >> thank you, counsel, justice thomas, anything familiar? justice? >> considering everything that justice kagan asked, question, this is their defense, they had no other defense. they agreed he was guilty. their only claim was don't give me the death penalty because it's my brother who is the moving force and isn't there, one, i think. she has pointed out a certain difference between evidence that was introduced about the brother, i.e., he shouted at the
barber or the butcher, i think it was the butcher, et cetera. and this evidence which happens to be an affidavit which says he murdered three people including one of his closest friends by splitting their throats, now, it seems to be a difference. does the government think there is a difference, the government took the affidavit and used it to show probable cause to search a car. now, if the government thinks it stands up enough to show probable cause at least, isn't it enough to get into a death case? when was the last time there was an execution in massachusetts? i mean, and as far as knowing about it, the lawyer, what's his name, that's a complicated name, but it's a simple point. there was evidence in this trial though introduced before where he said that, that is he was the
friend and the lawyer said, the friend says that he did know about it. nobody denied that he knew about it. all right, so those i think were the points that justice kagan was trying to make and unless there is a much tougher rule of mitigating evidence in a death case than there is to show probable cause to search a car, why doesn't this come in? mr. feigin: well, your honor, there were a couple of questions packed in there. let me respond to the warrant affidavit question and also the proffer question. on the warrant affidavit question, if you look at page 996 of the joint appendix, the agent doesn't endorse any of the details of the story. he says that he believes there is probable cause to believe that they planned and committed the waltham crime without saying
that he played a huge role. quoting a third party statements doesn't necessarily endorse them in the context of an affidavit and more over, as a more general matter, a warrant affidavit is a very different inquiry into very different thing. the court has emphasized in illinois versus gates there is a qualitative difference between probable cause and proof by a preponderance of the evidence and looking for reliability in that context for reliability to investigate further, not reliability to prove anything at trial. on the proffer, i think there is a very artificial aspect to the way that this inquiry is coming in at the appellate stage because at trial, i think the reason they didn't focus on the cutter bioproffer which they mentioned in the course of their
discovery motions but not as a reason to admit this evidence, not as a basis, they didn't want them on the stand probably. to the extent anything in the proffer was true, they were offering to the government, who knows how it would come in. you look at the points down, you'll see that they also offered to testify that one month before the bombing, he had a conversation with respondent where respondent admitted he learned how to make bombs and was speaking glowingly of martyrdom. >> justice alito, anything further? justice sotomayor. >> it seems to me that i'm not sure how we would ever have an abuse of discretion review of --
solely on a district court's decision not to permit a defendant to put on a defense. it has to be something else because i don't know of any other situation where you can deny a defendant the constitutional right on a simple weighing. but putting that aside, i'm also unsure what the reliability of this information is about when, although you're saying that they wouldn't have put in the evidence that the defendant knew about this killing, there were multiple people who they proffer to us now who could have testified to the fact that this defendant knew his brother had committed these killings which would have meant the truthfulness of the confidential informant was irrelevant.
it doesn't really matter who took the lead in the killing or even if the brother participated in the killing. the only issue would have been what did defendant think. and so i'm not sure whether the relevancy issue that the district court ruled on made any sense to me, but please explain to me how we, what should be the standard of review assuming a constitutional right to present mitigating evidence and assuming as justice kagan showed, this evidence was relevant to how this young brother might have reacted to the entreaties of an older brother who had already committed jihad. mr. feigin: your honor, the court of appeals found the abuse of discretion review was appropriate and the respondent
hasn't taken issue with that in this court. as to the point about knowledge, if you look at page 976 of the joint appendix, you will see that the government's motion in eliminee said the respondent had not asserted that he knew about the waltham crime and we acknowledged it would be a different story if he had. in response on page 669 of the joint appendix, he says that the evidence should come in, even assuming what he didn't know about, that's the basis on which the district court decided to exclude the evidence, page 650 of the joint appendix. i'm not letting this evidence in because we fundamentally cannot tell what happened. the district court did not understand this to be a knowledge, question of respondent's knowledge, that's one reason to review this with deference to the district court's rulings, to require an tire new penalty phase in case,
force the victims to come back and testify and have to reassess the same sentence is i think -- >> part of the problem is that the district court withheld information and so the defense attorney could not proffer everything at once because it didn't have full knowledge of what was there. now that they do, they can show us, a, how pertinent that information was and, b, how it could have dovetailed easily with what they already had. you can't put the cart before the horse here and the cart before the horse was the denial of discovery. mr. feigin: first of all, your honor, i don't think that respondent is alleging that the government didn't disclose something related to respondent's own knowledge. second, to the extent they want to pursue further discovery, it
emphasized how it's going to sidetrack the proceedings into an investigation of a different crime. and third, i don't -- that crime is not particularly related to the boston bombing in which respondent personally participated and there substantial evidence about the roles of the brothers in planning that crime. some of that evidence was disputed, but i think what is quite clear and what we put into the record is that respondent, there was evidence that respondent told a friend he was planning something with him. there was evidence that respondent had sent messages and tweets touting jihad. there was evidence that he bought the gun from his drug dealer. there was evidence he went to a firing range to practice something, excuse me, i meant to say he told a friend he was doing something with him, not doing something. >> justice kagan, anything
further? >> the court was very well aware as just breyer said, the only argument that the defendant was making in this case which was an argument about undue influence, although he did it and and although he did it and he was guilty that he should not get the death penalty because he was unduly influenced by his brother. so the court put the following to the jury, here the mitigating factors. the defendant acted under the influence of his older brother, whether because of his age, size, aggressiveness, domineering personality, traditional authority, or other reasons, the defendant was particularly susceptible to his older brothers influence. the defendants brother plans led and directed the bombing. the defendant would've committed the crimes but for his older brother. that was the entire case. were those mitigating factors sufficient to give him life in prison rather than the death
penalty and yet the court keeps out evidence that the other older brother committed three murders in the way justice breyer explained. >> i think i've already gone through the way this came into the district court. the other thing i would emphasizes i do not think their theory on probative value is particularly strong. if this jury heard the respondent was aware or thought that tamerlan had committed a murderous act of jihad they would've expected him to be horrified, not to view that as an affirmative reason to not only follow him in jihad, but to take in even more murderous act by planting a bomb.
>> as your group -- as your brief says multiple times, of jury actually produced a very nuanced verdict and said as to any act that the two brothers were together, there were mitigated factors and that was not the appropriate sentence. it was only the acts with the older brother was not on the scene in which death was appropriate. do you think it's possible and that's what has to be shown with such a case, that if all of this evidence about these murders were produced, a jury that was obviously sensitive to the issue of the relationship between the two brothers and how that relationship affected the defendant's actions, do you think it's possible that that jury would've said even when tamerlan was off he could continue to exert an enormous influence because this is a guy who walks into places and murders three people. >> your honor, there was no evidence that tamerlan physically intimidated
respondent to doing anything. he was in fact physically separate when he planted his bomb. as for the influence, i think the jury is much more likely to throw its weight against respondent not as a mitigating factor in his favor. this is a jerry who heard -- jury who heard evidence about the boat manifesto, the respondent wrote after he ran over tamerlan in which he justified his actions on the basis of jihad and showed how proud he was of them. this after he needn't worry about tamerlan at all. he thought he was fine. ms. >> -- >> there's really an interesting sort of evidentiary question here and i would like your explanation of the standard that implies. this evidence is inadmissible many times over in a regular trial where we have rules of evidence.
but in the mitigation phase of the penalty on a capital case may be the rule is anything goes. and if that is the case, that's what i want to know. is it really anything goes? suppose we had in this case was quintuple hearsay about something that tamerlan supposedly did years ago in russia. one person in russia told another person in russia told another person in russia down the line that he did certain things. and that is admitted. then what can he do in response? can you then introduce evidence to show that actually didn't happen or can you introduce evidence to impeach the credibility of some of these hearsay declarance?
how is this to be handled? >> i think those would be options. i think one way to look at this is if you look at the court's decision in greene against georgia, they maintained the hearsay rules in the penalty phase of the capital trial. and it had imposed the hearsay rules and the court found it had violated the defendant's eighth amendment right in doing so. before it was able to reach that conclusion it assured itself the evidence was reliable, and i think that is at least a minimum more than the eighth amendment would require and at some point some sort of quadruple hearsay hypothetical the presumably requires some translation from the original russian might well exceed reliability. and here what you had was evidence no one who was still alive would've been able to
attest to the other evidence in this case. >> on the wall for murders we have to review the decision. he had a way in his mind on developments and potential for confusion. if you could just putting aside all hypotheticals actually give me the government's best target on the one hand and why would've caused confusion on the other. >> certainly. now it has boiled down to a couple of theories of relevance. i will try to be as helpful as i can. one made it more likely that tamerlan planned the crime. i'm happy to expand on this if you want me to. >> i just want to know your best
arguments on why it was not that relevant. assuming we had some reliable evidence of that, but it really shows he is more likely to have planned this different crime. as for influence it really doesn't show any physical influence because todashev opted out. i don't think it shows psychological influence because in order to conclude that the jury would have to infer that tamerlan was actually involved and he did so as an act of jihad which is not what todashev said, the respondent knew about it, the respondent essentially viewed that as a plus factor for following tamerlan not is a significant detractor finding out his brother is a jihadist murderer. and that would lead him to take his own deliberate acts of which there were many physically separate acts in carrying out the boston marathon.
as to confusion, i think unreliability of evidence is itself at part baked in to the confusion inquiry and i think the jury would consume a disproportionate amount of the penalty phase proceeding focusing on tamerlan and a proceeding that supposed to focus on the individual culpability and history of this particular defendant. it really would invite the precisely the type of comparison game everyone agrees would be inappropriate. the jury was supposed to be focused on respondent, not on something tamerlan might've done years earlier that was a different crime. >> justice kavanaugh? >> at the beginning of this entire line of question you ask to resume away on something
and you are asked to assume away with the district court's reasoning here because the district court said and i'm quoting there was insufficient evidence to describe what participation tamerlan may have had in these events. and it is as plausible that todashev was the bad guy and tamerlan was the minor actor. there's just no way of telling who played what role. we reviewed that analysis for abuse of discretion. correct? >> i agree, your honor and i would emphasize the extent we are looking at something different now and they suggested in their brief maybe they wanted to produce a more streamlined version of the evidence they just introduce knowledge and the fact tamerlan was involved in some way. >> but the district court here was presented with this theory and the district court said we do not know what happened. there has been insufficient evidence of who did what and
therefore the theory that tamerlan was the lead player in that is entirely unreliable because we don't know. and todashev had all the motive in the world to point the finger at the dead guy to say he was the ringleader of slitting the throats of the three drug dealers. right? >> that's exactly right. one of the thing i would emphasize is this wasn't sort of a final confession from todashev, this was interrupted midstream when todashev, after talking to the officers, went back into his kitchen, got a pole and tried to attack them and that's why todashev was killed. i think it's inherently unreliable midpoint statement from someone who was, at least clearly somewhat unhinged and had every reason to pin this on the person who had committed the
boston marathon bombing along with his brother, the respondent here. >> that is the district court's theory. then your answers to line of questions were even assuming that tamerlan did play the lead role, which we don't have evidence of, even assuming that, that still gets into the comparison game that you said the district court concluded that's not the right role, the right analysis from the jury to -- for the jury to take in a case like this. >> that is correct. >> i want to make sure the premise was assumed away. it was assumed away because that's the role of the jury. i think it's important to discuss the district court's reasoning and the district court said we don't know what happened in the district court, a vivid answer justice kagan's question, does the district court have a gatekeeping rule here or not? maybe that was justice alito's question too.
>> just to be clear on the couple of points you raised, i don't concede the premise, i agree with the way justice kavanaugh has analyzed it and i also do believe i was discussing most in depth probably was justice alito and a little bit with the chief justice with respect to the statutory requirements in 3593 c, the district court has an important gatekeeping role here. i don't think that's disputed. it's not really an anything goes regime even in the penalty phase of the capital trial. it's a much lower evidentiary standard everyone agrees in the eighth amendment requires but it's not anything goes in the district court reasonably exercised discretion here to keep out inherently unreliable evidence that wasn't especially probative and had a substantial risk of confusing the jurors. as i was just explaining to justice gorsuch. >> justice barrett, anything
further? >> i'm wondering what the government's endgame is here. so the government has declared a moratorium on executions but you here defending its death sentences and if you win presumably that means he is relegated to living under a threat of a death sentence that the government doesn't plan to carry out. i'm just having trouble following your point. >> the administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict. if the verdict were to be reinstated potentially with some further proceedings on remand. there would then be time for collateral review, some time for reviewing clemency petitions. in that time the attorney general presumably can review the matters that are currently under review such as current execution protocol and what we
are asking here is the sound judgment of 12 respondent peers that he warns capital punishment for his personal acts in murdering and maiming scores of innocents and along with his brother, hundreds of innocents at the finish line of the boston marathon should be respected. >> mr. chief justice, and may it please the court. under the constitution a death sentence is lawful if it reflects a reliable and reasoned moral judgment to the defendants culpability. that was violated in two ways. the district court violated the first circuit's own standing supervisory rule by refusing to learn whether jurors had been exposed to in admissible inflammatory information that could color their consideration of the death penalty. second and more fundamentally,
the district court violated the eighth amendment by categorically excluding evidence that tamerlan robbed and murdered three people is an act of jihad. the defense's entire argument was that tamerlan was less -- it applies a key indoctrinating event by demonstrating to dzhokar that tamerlan had committed himself irrevocably to violent jihad. that would have it profound effect on dzhokar who would've felt intense pressure to follow tamerlan path is justified and tamerlan's private -- prior experience made him more likely to have led the bombings. the evidence's exclusion distorted the penalty phase by enabling the government to present a deeply misleading account of the key issues of influence and leadership. the government argued tamerlan was merely bossy.
they argue he did more -- did no more than sending a stream's when that wasn't true. the government argued the brothers were equal partners because tamerlan had not succeeded until dzhokar joined him. the defense couldn't make any of those points. a sentencing proceeding where the defense is not permitted to make its fundamental mitigation argument and to rebuff the government aggregation requirements cannot result in a reliable and constitutional death sentence. i would like to start with a quote left off with the government's acknowledgment that this evidence should have come in if you knew about it and if there was evidence he did it. i think that's exactly right. the key point is here the test for relevance is permissible inferences the jury can draw from this evidence and so i think the district court committed legal error by saying the evidence lacked any probative value would all. the far stronger inference here is that tamerlan had a significant effect in these murders. not only did todashev say this,
there is corroborative evidence. that he committed these murders as an active jihad. we know tamerlan was the one to review a few weeks before the murder the extremist teachings advocating robbing nonbelievers for jihad that provided the extremist motivations. we know tamerlan was the one who knew the primary victim here. and tamerlan's involvement is corroborated by computer search history. which shows that either tamerlan or his wife searched for his name in connection to the murders. the far more plausible inference for a jury to draw would be that tamerlan was involved in these crimes and play significant role -- played a significant role and that dzhokar knew about that. >> can a trial judge of the penalty phase of capital trial
ever exclude mitigating evidence that meets the very low standard of relevance on the ground that it is highly unreliable? >> yes, i believe the eighth amendment would permit a district court to do that. the way the framework works i think is once evidence is relevant and reliable, than the eighth amendment constrains district courts discretion to exclude it on other grounds. >> so a judge can make a determination of reliability? >> absolutely in the test is minimal addition of reliability. the lower courts have used in determining whether evidence should come in. minimal admission of reliability. whether the evidence -- i think it turns on whether it has corroboration and i think here the district court committed legal error because the corroborating evidence -- the government has not disputed. this other evidence we talked about in our brief the government has not disputed.
the reliability of it -- >> the minimum evidence of reliability -- minimum standard of reliability is met and what is at issue is another crime, another event different from the one that's on trial. to what degree can the prosecution then respond by introducing evidence that disputes the version of the other event that is proffered by the defense? and to what degree can the prosecution respond by impeaching the reliability of the hearsay declarance in other words, at a trial, you do not have any trials. a person is on trial for murder x. you do not have a trial for
murder y or z. to what degree can a judge at the penalty phase say we are not going to do this? >> i would push back against your owner's -- honor's point that this sort of evidence of another crime never comes in. and adjudicated crimes evidence is a staple of coupling sentencing i am talking about a trial where there are rules of evidence. >> my question is to what degree do the considerations at a trial where there are rules of evidence also apply in a diminished form at the penalty phase? or is it the case that if the defense puts in anything relevant, then you are off to the races and have a mini trial about this other event? or the defense puts in minimally reliable evidence for the prosecution cannot respond? >> two points in response to
that. if we were looking at this under the rules of evidence, at trial, that would be no basis for categorical exclusion on relatability grounds. todashev's statements in which todashev indicated both himself and tamerlan would come in. even looking under the rules of evidence, there would be no basis for categorical exclusion. i would say it with respect to capital sentencing what this court has said over and over again. more evidence should come in of the capital sentencing phase, not less. that is because we think the jury will make a more reliable sentencing determination if they get to see evidence. the jury, not the judge, is a primary arbiter of reliability at the sentencing phase.
>> that federal death penalty act says that the defendant may present any information relevant to a mitigating factor. but it goes on to say, information may be excluded if it's prohibitive value -- misleading the jury. i want to know if reliability is the same as that. just because something would be admitted under the federal rules of evidence, put differently, hearsay rules would not keep it out, that does not mean that his -- the district court would not have discretion to keep it out. another way to think about justice alito's question is is this part of the federal defense -- death penalty act inconsistent with the eighth amendment? do you think that is legitimate ground for excluding evidence? >> i do not think the two are inconsistent. let me say the way to think about reliability is that the district court committed legal error by finding that the corroborating evidence did not
rise to the level of reliability standards that apply. how this would be treated under the hearsay rules is prohibitive here, because the hearsay rules are designed to reflect of what we think of as reliable. >> regardless of reliability and reliability under the hearsay rules, we still have 403. in fact, the court was weighing the risk of unfair prejudice against its prohibitive value, which the district court thought was nil. put aside reliability. i want to know, it was saying this would spin off into a mini trial. it's prohibitive value was low. it would confuse the jury, not add much. our -- are those legitimate
grounds for excluding the evidence? >> those are obviously the grounds of the federal death penalty act allows courts to consider, but let me break down how i think that works. with respect to confusion, ordinarily, one would review a conclusion that evidence may be confusing, but the court first said this evidence has no prohibitive value. it is completely irrelevant. the confusion ruling the district court reached is bound up, follows from its relevance ruling. you cannot separate the two. because of that, the district court never did any weighing here. the evidence is completely irrelevant. there is no weighing of considerations. >> i think there are two different theories. one emphasized that tamerlan had played a lead role and, therefore, that was relevant to show a lead role here. and the district court said
there was insufficient evidence to show or establish or be prohibitive of that theory at all. a second theory, which i think you are emphasizing more here, is the mere fact that tamerlan committed another murder is itself relevant. suppose tamerlan had committed the walton murders by himself and it was undisputed. would that be something that has to come in in the death penalty trial here or the penalty phase of his brother? >> it would be. >> explain the relevance of saying that the defendant committed these murders and made these people, but my codefendant is a worse person, because he previously committed other
murders. is that theory? >> that is not the theory. >> the theory is that tamerlan dzhokhar -- influenced dzhokhar, that tamerlan indoctrinated dzhokhar and that tamerlan was more likely to have led the bombings. tamerlan -- tamerlan's admission of the previous jihadist murder was relevant. this is the key indoctrinating event. everything else in the evidence was just talk. tamerlan sent dzhokhar a few articles. this was the event i which tamerlan demonstrated his commitment to jihad. we already know that dzhokhar was enthralled to tamerlan, vacuum was -- that he was occupied a subordinate position. he was under tremendous pressure to accept tamerlan's violence. we note that the murder was the key indoctrinating event. the whole dispute between the government and the defense was
how did dzhokhar radicalize? why did he radicalize? the admitted evidence was that in terms of actual persuasion, the only actual persuasion was that tamerlan had sent dzhokhar a few articles. >> i thought he read al qaeda's magazine and messages and became influenced by those and decided he wanted to wage war against america. >> all of those arguments were given to him by tamerlan. what the government was able to argue was that dzhokhar was able to radicalize on his own. a younger brother under your order brother's sway, you will not feel a need to fall to persuasion if the form of persuasion takes the form of an email with a few articles.
it is not all that was going on. tamerlan was committing jihadist murders. he demonstrated through that that he was absolutely committed to the point of murdering his friends. at that point, dzhokhar would have faced a choice -- does he follow? does he not? he was under tamerlan's sway and there would have been tremendous pressure. with respect to leadership. i also think that murder is incredibly prohibitive. tamerlan was older, occupied a superior position, but there is nothing in the admitted evidence that showed that tamerlan had the ability to carry it jihadist -- out a jihadist event. he had done it before. the government was able to argue that tamerlan never succeeded in anything. he is ineffectual, merely bossy. whatever you think about is being older, having influence, that doesn't matter. the brothers must have been
equal partners, because dzhokhar was not able to go into action -- tamerlan was not able to go into action until dzhokhar joined him. >> as i understood it, your primary theory below on this evidence was to show that the brother had leadership, had taken leadership of other crimes before, similar crimes. is that right? >> we made all of these arguments below. the evidence supports a variety of inferences. >> that certainly seems to be what the district court understood your argument to be. is that right? >> the district court concluded that there is no way to tell who did what in the apartment. >> let's pursue that then.
if the district court's theory -- if the district court understood your theory to be that this evidence showed the brothers' leadership capacities. if the court found that there is no way to know who took the leadership role, because the evidence is gone now. the witnesses are not available. what do we do with that? >> that is error two. if you look at what the defense said, it was a broader theory than that. >> let's deal with that theory. maybe i am unfairly asking you to put things aside, but with respect to that theory, what is wrong with the district court's conclusion? >> it is not a basis for categorical exclusion. it is hypothetical.
-- >> it is hypothetical. if that theory was it shows leadership because he is done leadership in the past, and if the evidence is impossible to determine who led the walton murders, then what? >> that would still be error, because even if that is the theory, the district court, there was corroborating evidence that suggested a leadership role. both parties pointed out to the district court that you could analogize to the federal rules of evidence that you might have a situation in which some things come in and some don't. that is why i think the court erred in categorically excluding this. the corroborating evidence that would have suggested a leadership role -- again, tamerlan is the one steeped in jihadist materials. this is something that the government credited in the search warrant, that tamerlan was the one who came up with this, was the one who knew the victims. >> also in the course of writing
his confession to the crime when he attempted to overcome law enforcement officers. >> that is correct. that is something the government could have pointed out, but the test for reliability is is this statement corroborated by other evidence? that is before you get to the search warrant in which the government itself credited at least some of todashev's statements, said these are appropriately accepted as true for fourth amendment purposes. this is certainly reliable enough to go to the jury. the jury is the ultimate arbiter of liability at the penalty phase. >> what is your response precisely to the claim -- and the government makes it -- if i let in this todashev affidavit, there are about seven issues about whether i am going to have to have a trial, about whether todashev is lying, about what
the defendant actually knew, about, about, about. now, your response to that, this trial has already gone on a long time. it will go on another year. what is your response? >> several responses. the first is that not all of the todashev statements would have had to be admitted. i do not think jury needed to reach definitive conclusions in order to determine that todashev played a major role and did so for jihadist purposes. the court would've had discretion to limit the presentation of evidence. the second thing i would say is just because evidence is contested by the government does not make it unreliable. an adjudicated -- unadjudicated crimes evidence comes in all the time. that is never thought to be a mini trial in any other circumstance. in this case, or other forms of
hearsay that came in where people described their interactions with tamerlan. nobody thought the jury was going to get tied up and it was going to take years to figure out exactly what tamerlan said. whether he said what the witnesses said he said. everybody understood that the jury could evaluate those reports in conjunction with instructions from the judge about how to evaluate them and any corroborating evidence. that is what juries do. the final thing is that although the government has set there would be an expensive mini trial -- trial, it has never said what that evidence would be. this would more naturally be attorney argument. government would get up in opening and closing's and tell the jury what they thought it should take from this information. that would not be a mini trial. that is just a little bit more of an opening or closing. >> mrs. anders, in your brief, i thought you were arguing that there is no real balancing test
under this rule, under 35.93, with respect to mitigation, that it has to be with respect to aggregating evidence. that there is a different standard of applicable to mitigating evidence. it's sort of does not make any sense to have a 50-50 balancing test, because it is a constitutional right. >> certainly in the case of mitigating evidence the eighth amendment does come into play and impose a constraint. once evidence is relevant and reliable, the eighth amendment creates a strong presumption that the evidence should be admitted in some form. it would take extraordinary concern on the other side to justify categorically excluding evidence, especially when there are case presentation ways there
are neuro-ways to present the -- four district court to address concerns. in this case, none have come close to satisfying this high standard to justify categorical exclusion. the government's confusion arguments is not provide evidence for categorical exclusion. the government would not have to do anything more other than to make these arguments. we have also talked about reliability. the statements here were amply corroborated by analogy to federal rules. there was ample reason they should come in before we even talk about the search warrant. i want to make clear something about the extent to which this exclusion distorted the entire penalty proceeding. the way that this unfolded is particularly important. but government moved before the penalty phase began to have this information categorically excluded. that freed the government to
tell the jury that influence was the "centerpiece" of the case and that the defense had presented no evidence. that is another quote from 816. then throughout the penalty phase and its rebuttal to the government was able to argue that tamerlan was bossy, that he sent two articles, that is all the influence that happened, the tamerlan could not going to action. it would have changed the terms of the debate. the government could not have made those arguments. if it had, the defense would have said tamerlan is not just posse, he is violent. he has committed violent jihad. there is no question that would have a profound -- >> assuming it would change the terms, it would focus debate something that the district court determined could not be resolved. there were no witnesses available -- they were both dead. he concluded that that would
require -- i do not want to use the term mini trial, but certainly a detour into something that at the end of the day, there was no basis for resolving. it is no question of who do you believe. they are both dead. the determination is whether that was an abuse of discretion. >> i think the district court committed legal error in making that conclusion. it is a question of reliability. the jury would have evaluated this evidence that way it would evaluate any hearsay evidence. it would put the statement to the corroborating evidence and decide what it thought. we are talking about corroborating documentary evidence, dzhokhar's own statement that tamerlan did this. the jury could have evaluated all of that. i don't think it would have taken a mini trial, because we are talking about a fairly limited universe of evidence. this goes to a central aspect of
the penalty phase. this was the mitigation case. i don't think this can be an improper mini trial. it is the trial. this is the issue as to whether joe car -- dzohkhar was indoctrinated and tamerlan was the instigator. that is the only argument the defense had. the idea that it would be an improper mini trial to put on some hearsay evidence when many other pieces of hearsay evidence came in throughout the penalty phase and half the jury evaluate that in the context of corroborating evidence, i just do not think that can be a mini trial. >> just to be clear, what is your argument about the standard under the federal death penalty statute? you argue that the balancing applies only to the aggravating evidence? if it applies to mitigating evidence, do you argue that it is inconsistent with the eighth amendment? >> the way that this works is
ftpa set a very broad standard. the courts of appeals have recognized that constitutional prohibitions on admitting aggregating evidence and eighth amendment concerns about admitting evidence also operate on the court's discretion. under the eighth amendment, the court has discretion, but once evidence is relevant and reliable, that discretion is limited. the eighth amendment creates a strong presumption that the evidence should come in in some form. that principle comes from green versus georgia. >> i am not sure that i understand your answer. the evidence may be excluded if it is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. is that the standard for the exclusion of mitigating evidence? >> i think the eighth amendment will control when that mitigating evidence is reliable.
it will limit the discretion further. the courts of appeals have said the exact same thing in the context of -- >> either that is the test or the eighth amendment supersedes it to some degree. you think the eighth amendment supersedes it? you think this is to some degree unconstitutional? >> the eighth amendment provides a superseding limit on discretion just the way others supersede. that is what the second circuit said. that when there is a constitutional concern -- >> just to get a straight answer , you are saying that when we are talking about mitigating evidence, that last is inconsistent with the eighth amendment? once evidence passes the threshold of reliable and probative, the court cannot consider prejudice, confusion of the issues as a reason for
excluding it? >> it can. i just think that the eighth amendment creates a strong presumption that those issues would have to be extraordinarily weighty. >> but it does not say substantially outweigh. it just says outweigh. >> i think the eighth amendment composes a constraint here. where the evidence is relevant and reliable, countering concerns would have to be extraordinary. >> so the answer to justice alito's question would be that it is unconstitutional when applied to mitigating evidence, at least to some degree, under the eighth amendment? >> but that is your position, right? the last sentence just says outweighs. unless it is only applicable to aggregating evidence. >> the discretion under the eighth amendment is in some circumstances more limited than under the fdpa. >> did you make this argument that the federal death penalty act is unconstitutional?
it strikes me as a new thing today. >> again, i do not think we have to establish that the fdpa is unconstitutional. the eighth amendment provides an -- another constraint on discretion. another way to think about this is in some ways, you do not have to get to it here, because with -- what the district court said is that this evidence is irrelevant and therefore confusing. the district never got to any weighing. there is no discretionary determination to review under the fdpa. >> one more point with respect to what my friend on the other sides that. -- side said. this evidence is somehow
>> -- this evidence is somehow double-edged. i just do not think that that would be the basis for exclusion. it is powerful mitigating evidence that shows that dzhokhar was indoctrinated at the instigation of his brother. we know that influence and leadership are powerful mitigating concerns because of what happened in the d.c. sniper case. we know that that was a situation similar to hear where a teenager committed the offense -- offense. he was radicalized. he believed those crimes were religiously justified on the. the evidence of influence that he radicalized at someone else's instigation was enough to warrant him a life sentence. that is what could have happened to dzhokhar here if this evidence had been permitted. >> mrs. anders, you are welcome to take more time if you would like. >> does the court have further questions? >> justice thomas? >> the government had testimony, it was almost exactly what you
have. but it occurred in roxbury or dorchester. a respondent was shown to be the leader. the government attempted to introduce that as an aggrvator. -- aggravate her -- aggravator. what would be your response to that? >> it would be difficult to keep that evidence out. it would be relevant. the government often offers evidence just like this. it is offered as positing evidence where we think the defendant has committed some other offense. no way to know with 100% certainty what happened. >> even though the individual who disclosed it has done exactly what this individual did to the fbi, where he is dead and instead dead because he
attempted to attack them, you think that would still be admissible? >> the defense could make those arguments, but it would be difficult to keep it out. the jury is the primary arbiter of reliability here. the jury ought to hear that evidence. that is what lower parts have generally held. >> i would like to ask you one question about jury selection. you said that this supervisory room had been in place for quite some time. you suggest -- at least i got the sense that you thought it was regularly applied. how often has it been applied? >> as far as we can tell, district courts for 50 years have complied with this rule. when a party has requested, district court's have done it. it has not come up as an appellate issue much. >> is it published anyplace?
>> that first circuit has relied on the patriarchal rule a couple of times. it has said that is the standard of the circuit. more recently, it has reviewed voir dire and concluded that the voir dire complied. as far as we can tell, generally, the district courts are complying with this rule. i think that just reflects the routine question that is often asked. >> we have generally given the district courts quite a bit of discretion in jury selection. could the court of appeals displaced that with a list of mandatory questions that if -- it thinks should be asked in every single complicated or widely publicized case?
>> that would present a closer question. the district court does have discretion. what the district court did here was well within the court's precedent, both within the racial bias context and also the decision. this is not a wooden rule. this is a rule that the district court has discretion to decide applies at the outside and to decide how to apply it. >> how do we know how far the court of appeals go with displacing discretion? how do you know whether a rule is too detailed or there are too many? >> it would turn on something of a functional analysis. the reason for it district court discretion is that generally we think of the district court as better placed to decide what questions to ask in the moment, but the court said there is nothing inconsistent about that recognition and having some
narrow rules where you are eliciting more information is both good and a service to judicial integrity there would probably be a point where we would think it is no longer serving the purpose it is supposed to serve. we are far from that here. this is a very narrow rule. it is within the framework of court announced. >> thank you. >> justice breyer? justice alito? justice sotomayor. thank you, counsel. rebuttal, mr. fagan? >> thank you, mr. chief justice, the court has been generous with its time and i want to make three points. they are all focused because that's the only thing the
respondent is focused on this point. one is that my friend on the other side made a statement against a statement to entrance but i don't think it would come in and under that because his own administer -- his own admission would be to pin everything on the dead man. second, as far as the ability, they have focused on this indoctrination theory. i think that is not probative of anything that is mitigating here. essentially what they would be arguing to the jury is yes, he sent this jihadist literature but what really got me into the jihadist literature was learning that what the end of the road in jihad is committing murder and moreover, i am fed up by committing murder at the finish line of the boston marathon.
i don't think that is physically -- particularly helpful or particularly probative as far as mitigation goes. and that brings up the third point which is it is in some ways easy to view all this from an appellate removed which is what we are doing here but the easiest way to resolve this case is simply on harmless error principles and think about what the jury actually heard. i don't think this comes through as much in the briefs as if the court takes a little bit of time to review some of the video evidence included in the joint appendix. i particularly recommend exhibits 22, 23 and 13 and four c. i have gone through some of the evidence about the respondent being involved in the planning of the offense but what those exhibits will show is respondent physically separating from his brother near the finish line of the boston marathon, positioning
himself behind a group of children, putting down his backpack, we can't quite see that part but rest assured, he did it, contemplating for about three minutes, taking out his phone and calling his brother after which the first bomb goes off. so tamerlan was clearly waiting for a signal from respondent. the respondent while everyone is panicking and wondering what just happened, they don't even know enough to panic yet. the respondent walks off at a normal rate of speed. it is not a very wide angle camera so he barely gets offscreen before 20 seconds later, the second to bomb explodes killing and maiming people that were minutes ago, seconds ago, wondering what had just happened. if that is not someone who set
off the bomb himself or at least knew exactly when it was going to go off and what the blast radius would be, i don't know what is. then after the bombing, the respondent, who lives 60 miles away from tamerlan joins up with his brother for a daring escape in which they kill a police officer in cold blood in a failed attempt to steal his firearm stop they carjack and kidnap an innocent graduate student and then they engage in a violent shootout with police officers in watertown during which the respondent is lighting pipe bombs and throwing them at the police. when tamerlan rushes the police, the respondent gets back in a stolen suv and instead of just driving away, he does a three point turn, comes back at the confrontation and the police officers managed to get out of the way but he runs over tamerlan.
he destroys his phone so he can't be located and hides out in someone's backyard in a boat where he writes a manifesto justifying his jihadist acts. this is all the evidence the jury heard that was admissible evidence that came in on this case and the nuanced verdict in this case was based on that evidence, not anything about pretrial publicity or anything about waltham. thank you. >> thank you, counsel, the case is submitted. you can watch the supreme court oral argument on the boston marathon's farmer's death sentence online tonight or on c-span.org or with the new c-span video app. announcer: cspanshop.org is c-span's online store. browse through our latest collection of products, apparel, books, and home decor, and accessories.
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