tv Justices Hear Case on Boston Marathon Bombers Death Sentence CSPAN October 15, 2021 3:59am-5:37am EDT
in case 2443, united states versus tsarnaev. mr. fagan: may please the court. after watching video of responded by himself personally placing a shrapnel bomb before a group of children at the judge. -- the jury recommended capital punishment for that specific deliberate act. the court of appeals should've let that verdict stand. instead it unearthed a previously unmentioned supervisory rule to invalidate the careful and lengthy jury selection process that a prior panel had praised. that process reasonably favored wad year over --
the court of appeals then again usurped the district court's discretion by insisting the jury had to hear unreliable hearsay accusations against respondent's brother by a dead man with a powerful motive to lie. we will never know how or why three drug dealers were killed in waltham in 2011 and none of the respondents evolving theories justifies conserving that separate crime into the penalty phase proceedings for respondents own individual participation in the 2015 marathon bombing. 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 in spirit -- its range just her judge impartial -- impaneled a partial -- impartial jury
about the respondents own actions and rendered a sound judgment against a motivated terrorist who willingly maimed and murdered innocence including an eight-year-old boy in furtherance of jihad. >> one question before you get too deep into the argument. what test should we use, the first circuit said it's exercising its supervisory authority. what test should we use to review that exercise of authority or to limit that authority? mr. feigin: i think there are two separate questions justice thomas that the court would need to consider, and deciding either one of them in our favor or deciding the application of the rule was harmless error would result in a judgment in the government's favor here.
first question reviewing the supervisory rule is whether the court of appeals and the second is whether this court exercising its own power reasonable. i think the fundamental problem with this rule is it has discretion that this report -- this court has repeatedly said they have over jury selection. if you look over the dishes in, the court emphasizes 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 are there and they can see the jurors and they are individually questioned and a are -- and are familiar with conditions. as to the second inquiry, i think the main point here would
be although such questions can be helpful in some cases, they are not invariably helpful. the district court had sound reasons for thinking they would be unhelpful here. i would also note on the third point i made that the court of appeals in advising this role clearly has a prejudice inquiry built into it. that's clear from page 68 that's consistent with the one supervisory role this court has made in this context in a -- plurality. it's why the court of appeals left the guilty verdict in place. and it's all to imply to the penalty phase verdict. you had a two year gap between the events and the trial. most of the publicity they knowledge was factual paid most of it related to guilt which the respondent conceded.
the jury was repeatedly admonished to disregard pretrial public city. there were questions on the 100 page questionnaire that went to any potential bias as well as the sources and the amount of pretrial publicity with each prospective juror had seen, there was follow-up questioning in the end of allied -- individualized voir dire. none of the c2 jurors expressed predisposition to impose capital sentence. justice thomas: i'm looking more for the standard you would apply. assuming you accept to some extent the supervisory authority of the fourth circuit, what would be your role for reviewing the exercise of that authority. >> if the court accepts that the
court of appeals can dictate to district court's how to do this i think this court ought to just be reviewing the rule to see is a sound and reasonable exercise of the rule, bearing in mind that it's been an exercise of supervisory power a -- that the court of appeals where district courts have the upmost discretion. justice thomas: would we review it as the first circuit exceeding its supervisory authority in the sense that normally that authority is exercised on local procedures or something like that. or are you saying we should review it in this area for something like reasonableness. mr. feigin: i think you could do frankly either.
i think 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, it is a clear expression by this court, the courts of appeals shouldn't invoke their supervisory power as an under lock to the recent corporate which is what the court of appeals has done. the second way you could look at it is more of whether assuming it actually had the authority to do this, should it have done so. i think if you look at the other supervisory role decisions where even accepting they might've had the authority to enact some rules in this area, enacting a hard and fast rule like this that would be rigid enough to divest the experience district judge 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 it could be addressed through individual -- individualized voir dire and they might be counterproductive by focusing the jurors on something the judge was of the same time instructing they should disregard. to the extent the rule is that rigid, it's an unreasonable supervisory rule. >> do you dispute the authority of the courts of appeals to issue some requirements under their supervisory power? mr. feigin: not as a general matter your honor. i think it is a little bit more circumscribed when it comes to jury selection procedures because of this court's repeated emphasis on the discretion
district courts necessarily have. >> where does that authority come from? mr. feigin: we are following the court's cases which appeared to presume this court has some supervisory power and we -- >> our supervisory power would be different from the court of appeals or district courts. because we've assumed in some cases court of appeals have it relying on our precedents? mr. feigin: we haven't questioned whether the courts of appeals generally has 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. >> if you took question with that it would upend a hold which in one way itself we endorse. but there are local rules about making sure a prisoner knows he
or she, what rights they are giving up if they proceed pro se. there are rules letting them know they have an opportunity to cure their deficiency. there is a whole lot of rules that talk about what courts are thinking about as adequate process and they are not changing outcomes, they are just saying to courts before you exercise your discretion, make sure that these things have happened. so are you taking -- are you suggesting we should take aim at those rules? mr. feigin: no. let me just emphasize the point. we haven't questioned the court of appeals supervisory -- >> so why did we spend i think
two or three paragraphs talking about local rules? mr. feigin: your honor, the other point i was going to make in response to the original question is i did not take the question to get at the separate issue of local rules the district courts and act for themselves. however, the court did note the existence of some supervisory roles in this context. there might be a question as to how far each of those rules of the time would have extended. but i think the reasoning, i point the court back to page 424 makes it 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 a plurality. i think it was inappropriate for the court of appeals here to have a rigid wooden rule the dictates specific questions. >> the rule was very simply stated as patriarch which was ask them questions about the times of -- types a degree of publicity that's out there and the court permitted people to tell how much they had read, a little, a lot or moderate amount. but it did not 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, the days after, publicity of 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. 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, the government did not always object and if you look at pages 733 to 735 of the court of appeals appendix in this case you will see the district court emphasizing these questions would be allowable on a jurors specific basis. depending on the kind of answers they had given. they didn't request any questions asking whether jurors
had seen specific types of publicity and i think the reason they did not do that is because they did not want to focus the jurors on those kinds of things like what kind of opinions people might've expressed. >> they wanted to ask what stands out in your mind about all that publicity. it seems to me that's not asking for details of everything you've read, but what has influenced you or affected you enough for you to remember it. that seems i get totally appropriate question. >> i think as respondents own counsel pointed out, a question like that is unlikely to be particularly useful in a place like this because everyone saw the same coverage so they were all going to say the same things. the chase in watertown, the
killing of officer collier, the boat manifesto. >> if you ask a juror that and the juror says i listened to victim acts -- x and that has haunted me. that certainly would be information relative to a defense attorney. even to the prosecution. mr. feigin: i would push back a little bit on whether -- the idea there was some question he got to the different types of publicity the jurors had seen. many of the jurors volunteered such information. there were occasions when they were able to ask that question or there was some other revelation of some media coverage at some particular juror had seen. the jurors were extensively questioned on their views on the death penalty in particular and if they were biased on that by something that might have come
out in the course of that question. >> it's been called the supervisory rule, i'm going to argue a case in the circuit court of appeals, you look at the rules, there's usually a pamphlet telling you the circuit rules, are there supplemental to the court of appeals rules, what makes this a rule. it seems to me it's nothing more or less than a precedent. is there a collection of supervisory rule somewhere. this is rule 22. mr. feigin: 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.
an in the petition about venue, praise the jury selection procedures and never once -- >> should we consider this requirement in any way different from the way we consider any precedent because it's labeled the supervisory rule. >> in any thing i would give it less weight because in patriarch itself, for simply affirming the denial of a venue change. >> if we issue an opinion and it has a particular holding i think there would be happy to say our new rule going forward is this, that's just saying it's a precedent. i do know but attaching a label to it. >> there are certain rules governing a lot of things and from minor application on eight and half by 11 paper to more significant things, but this is a rule of law.
a supervisory rule. >> i agree with that and i think the reason for labeling at such and the way certain things are labeled supervisory rules is there advisories going forward to distribute district courts to tell them if they don't do something in the future they will be reversed. >> if they don't follow this particular rule of law in the future they will be reversed, i don't know if everyone of our cases covering that supervisory rule. mr. feigin: i think it is particularly geared towards areas like case management where they are trying to put district court on notice. i think that is a fairly poor characterization of it itself. it kind of renders this is something of an advisory note at the end of deciding something else. >> a distinction that is not
based on the constitution and not based on a statute or regulation, it is a prophylactic rule adopted by the court for purpose of protecting a constitutional right, but there's no -- the proposition is not that this is required by the constitution. mr. feigin: i think that's one distinction not required by the constitution. where it's been somewhat stricter in reviewing federal courts then it has been in reviewing state courts. if one accepts the courts of appeals can impose their own supervisory rules in this context, i think there -- them
labeling a supervisory role that this is how you should do it, i think it definitely exceeds it court of appeals authority to impose such a rule that contradicts the way this court has handled similar situations. >> can i turn to the evidentiary question. i've had a difficult time teasing apart your various arguments about why it is the district court added -- acted within its discretion in refusing to admit the evidence about tamerlan's participation. giving you a hypothetical, maybe it's just asking you to assume something that you can test which is assumed for me that the evidence was very strong, that tamerlan participated in and had a leading role in the murders. so assume the evidence is strong
with respect to that. in that case, would the court have committed a reversible error by refusing to admit that evidence? mr. feigin: i think that would be a much more difficult case. >> i'm just asking in that difficult case with the court have committed reversible error? mr. feigin: assuming, and 1.0 want to emphasize is in district court here they have -- they did not assert -- one point in trying to make is 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. >> the defendant was aware of it. now answer the question. >> if the defendant was aware of it and there was strong evidence
i think the district court should've let it in. >> i assume you say that because the evidence, assuming it was strong, the evidence clearly is goes to a mitigating factor. the entire point of the defendants mitigation case was that he was dominated by unduly influenced by his older brother. and that would've gone to exactly that point. is that right? mr. feigin: if you have the knowledge combined with the strong evidence, i think that might well have done it. if you believe it could've been done a streamlined cash -- fashion. >> if that is true, then you are -- your entire case rests on the notion that this evidence just wasn't strong enough, that it was -- i don't know what else to
call it. it didn't establish that tamerlan played a role in the murders. but how is that the job of a district court to evaluate what is left aside that question? i would've thought once the district court says this is obviously related to his sentencing defense, it goes to his own culpability, it essentially 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 strong evidence or weak evidence that tamerlan played a leading role in those other gruesome murders? mr. feigin: a very quick threshold point. there is the knowledge issue here. you will see they didn't acknowledge that the district
court. assuming knowledge -- >> i don't even know if knowledge is all that important because even if he didn't know, the fact that his brother was the kind of person who played the leading role in these gruesome murders tells you something about the role he might've played in this murder irrespective of knowledge. let's just assume he had knowledge. mr. feigin: let me say a couple of things directly in response to the question. everyone agrees reliability is an important consideration here. page 30 of their brief, they agree with that. then you have to balance that against the probative value of this evidence. i don't think the evidence really would've added much to the mix of information we already had about who planned the boston marathon bombing. >> this court let in evidence about tamerlan poking somebody
in the chest. this court let in evidence about tamerlan shouting at people. evidence about tamerlan assaulting a fellow student all because that showed what kind of person tamerlan was and what kind of influence he might've had over his brother. and yet this court kept out evidence that tamerlan led a crime that resulted in three murders? mr. feigin: i think the one thing to bear in mind, of these crimes are extremely different. they have the waltham crime, everybody agrees did not involve respondent. it was very differently motivated, it was a financial crime where the murder was committed by knife in order to cover up committing the robbery of three drug dealers.
that is a far cry from a sophisticated public spectacle that requires reading directions in a jihadist magazine on how to build and construct bombs and deliberately placing them at the finish line of the boston marathon. >> it's different that tamerlan yelled in a mosque and assaulted another student and different that he yelled at people. but all of this was an -- admitted to show a kind of person he was and what kind of influence he had over his brother. and yet the court again refuses to admit evidence of a gruesome murderous crime in which according to the evidence that was kept out, tamerlan had extraordinary influence over the cofelon in getting him to murder three people. mr. feigin: he denied murdering. he said he was out by the crv and all of this happened. this is very unreliable evidence
because todashev has every incentive to pin this on tamerlan who at that point was already dead. i think this is page 947 in the joint appendix, tamerlan says to him if you won't kill them, i will do it. mr. feigin: isn't that exactly the -- >> isn't that exactly the kind of thing the prosecutor would've said to the jury about why they shouldn't believe that evidence? it classic case in which the evidence understood one way is highly relevant to a mitigation defense in the evidence understood in a way you just suggested just says that's crazy, it didn't happen that way. but that's what jerry is supposed to do isn't it. mr. feigin: unlike the other evidence you cited, there was going to be no cross-examination here. the only people who might've known what happened were -- and
possibly tamerlan and both of them were dead. this investigation it hit the end of the road. there was no way to figure out what happened in the district court recently determined that. we are here and abuse of discretion review and moreover i think this is subject to harmless error analysis and if you look at the details the jury heard and i'm happy to list them all. >> along the same lines, you say on page 39 of the brief but under the federal death penalty act the countervailing interests that would justify excluding evidence, you can do that if they outweigh the information's probative value. on the other hand if the countervailing interest substantially outweigh, do you really think that's a difference in practice?
i thought we would air the other way on the federal death penalty act we want the countervailing evidence that would affect the sentence to come in more easily than it would with respect to general. mr. feigin: two points in response to that. i think it does make a difference because rule 403 which has the word substantially and it exists as a backstop to bolster other rules of evidence that already ensure reliability like the hearsay rule and the best evidence rule we are a section 3593 c substantially lowers the bar for evidence in the face the capital trial. we in the district court with some tools to ensure fundamental reliability and ensuring the evidence is going to be appropriate for the case. the second point i would make is
what negative affect i think introducing the evidence here would have had. it would've sidetracked the proceedings and consumed a disproportionate amount of it focusing on tamerlan not respondent. this is page 668 of the joint appendix, their response to the government's motion that there -- this isn't just a comparison game where the jury is invited to decide whether tamerlan or respondent is a worse person and decided capital punishment is only appropriate for that person. >> thank you. >> they had no other defense. they agree they were guilty. they only say don't give me the death penalty because it's my brother who was the moving force. she's pointed out a certain
difference between evidence that was introduced about the brother i.e. he shouted at the butcher, etc.. and this evidence which has to -- happens to be an affidavit which says he murdered three people putting one of his closest friends by slitting their throats. it seems to me there is a difference. does the government think there's a difference question mark the government took todashev's affidavit and used it to show probable cause to search a car. 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? as far as knowing about it, the lawyer, there was evidence in
this trial though introduced before where she said -- where he said -- the lawyer said the friend said he knew about it. nobody denied he knew about it. so those i think our point justice kagan was trying to make and unless there is a much tougher rule of mitigating evidence in a death case then there is to show probable cause to search a car, why doesn't it come in? mr. feigin: there were a couple of questions packed in. let me respond to the warrant affidavit question. on warrant affidavit, if you look at page 996, the joint appendix, of the agent doesn't endorse any of the details of todashev's story. he says he believes this probable cause to believe that tamerlan and todashev planned
and committed the waltham crying -- crime without saying tamerlan necessarily played a lead role. this court has made clear using a third-party stephen doesn't necessarily endorse them in an affidavit. to the general matter, a warrant affidavit is a very different inquiry into a different thing. in illinois against gaetz, there's a qualitative difference between probable cause and proof by preponderance. we are just looking at her bio -- in that context for reliability to investigate further, not reliability to prove anything at trial. on the proffer, i think there is an artificial aspect to the way this inquiry is coming in at the appellate stage because a trial
i think the reason they didn't focus on that, which they mentioned in the course of the discovery motions but not as a reason to admit the evidence not as a basis proposing the government's motion is they never wanted it on the stand because to the extent the proffer was true, it was offering it to the government so who knows how would've come in. if you look a couple bullet points down on 584 you will see it also offered to testify that one month before the bombing he had a conversation with respondent which respondent admitted he knew how to make bombs and was speaking glowingly of martyrdom. >> anything further? >> this is a constitutional right to present mitigating evidence. it seems to me that i'm not sure
of how we would ever have an abuse and discretion review on the 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 one sure what the reliability of this information is about. when you're saying they wouldn't have put in the evidence that the defendant knew about this killing, there were multiple people who could have testified to the fact that this defendant knew his brother had committed these killings, which would've
meant the truthfulness of the confidential informant was irrelevant because 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've been what did they think. i'm not sure whether the relevancy issue the district court ruled on made any sense to me, but please explain to me what should be the standard for 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've reacted to the entreaties of an older brother had already committed jihad. mr. feigin: the court of appeals
expressly found in base of discretion review with the appropriate standard review and they haven't taken issue with that in this court and as to the point about knowledge, if you look at page 976 of the joint appendix you will see the government's motion lemon a said the respondent had not asserted that he knew about the waltham crime and acknowledged it would be a different story if he had. in response on page 669, he says the evidence should come in even assuming arguing he didn't know about and that's the basis on which the district court decided to exclude the evidence of page 650 of the joint appendix. the district courts as not letting this in because we fundamentally cannot tell what happened. they did not understand this to be a knowledge question and i think that's one reason to review this with some deference to the district court's ruling
because to require an entire new penalty phase in this case force all the victims to come back and testify and have to reassess the same sentence -- and >> part of the problem is the district court withheld information and so the defense attorney could not proffer everything at once because he didn't have full knowledge of what was there. now that they do they can show us how pertinent that information was and how it could have dovetailed easily with what they already have. you can put the cart before the horse here in the cart before the horse was the denial of discovery. mr. feigin: i don't think respondent is alleging the government didn't disclose
something related to respondent's own knowledge. second, to the extent want to pursue further discovery i think it emphasizes how this is going to sidetrack the proceedings into investigation of different crime and the crime is not particularly related to the boston bombing in which respondent personally participated and there is substantial evidence about the roles of the brothers in explaining that crime. some of that was disputed but i think what's clear and what we put into the record is respondent, there was evidence respondent told a friend he was planning something with tamerlan , that respondent had sent messages and tweets touting jihad. this evidence he bought the gun from his drug dealer. his evidence he went to a firing range -- he told a friend he was doing something with tamerlan, not necessarily planning something. >> anything further?
>> here are the mitigating factors the court itself put to the jury. the court was well aware as justice breyer said the only argument that the defendant was making in this case which is an argument about undoing 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, 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 sufficient to give
him life in prison rather than the death penalty and yet the court keeps out evidence that the other shoulder brother committed three murders in the way justice breyer explained. mr. feigin: 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 defendants actions, do you think it's possible that that jerry 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. mr. feigin: 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 committee getting factor in his favor. this is a jerry 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 dying. >> 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. in the mitigation phase of the penalty on a capital case may be its 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 told another person 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. how is this to be handled? mr. feigin: 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 -- 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 require some translation from the original russian might well exceed reliability. what here -- hear what you had was evidence no one who was
still alive would've been able to attach to 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 governments best target on the one hand and why would've caused confusion on the other. mr. feigin: certainly. now it has boiled down to a couple of theories. i will try to be assistant 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 wide wasn't that relevant.
mr. feigin: dachshund -- new -- mr. feigin: assuming we had some reliable evidence to show is more likely to plan 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 despondent -- respondent knew about it, knew it essentially is 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 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 precise of -- in paris 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. >> at the beginning of this entire line of question you asked 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. mr. feigin: 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. 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. mr. feigin: 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
boston marathon bombing along with his brother, the respondent here. >> 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 take in a case like this. mr. feigin: host: that's correct -- mr. feigin: that's 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?
that was justice alito's question as well. mr. feigin: 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 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. 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.
>> justice barrett, anything further? >> i'm wondering what the governments 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 this. mr. feigin: the administration continues to believe the jury imposed a sound verdict in the court of appeals -- 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. sometime for clemency position -- petitions. in that time the attorney general presumably can review the matters that are currently under review such as current
execution and what we are asking here is the sound judgment of 12 respondent spears 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. >> thank you. >> mr. chief justice in may 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. 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 entire argument was that dzhokar 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 of led the bombings. the evidence 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 --.
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 able 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 court 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 for inferences the jury cap from this evidence and so i think the district court committed legal error by saying the evidence lacked any probative value would all.
tamerlan had a significant effect in these murders. not only did todashev say this, there's collaborative -- corroborative evidence. that he committed these murders is an active jihad. we know tamerlan one the -- 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. that here his wife search 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 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? ms. anders: i believe the eighth amendment would permit a district court to do that. the way the framework works i think is one's 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. ms. anders: 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 minimum evidence of reliability -- minimum standard of reliability is met and what is at issue is another crime, another offense 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 then to what degree can the prosecution respond by impeaching the reliability of the hearsay in other words, at a trial, you do not have any trials. a person is on trial for murder x.
you not have a trial for murder y. to what degree can a judge at the penalty phase say we are not going to do this? ms. anders: i would push back against your point that this sort of evidence of another crime never comes in. and adjudicated crimes evidence is a staple of coupling sentencing proceedings. >> 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 bases and have a mini trial about this other event?
or the defense puts in minimally reliable evidence for the prosecution cannot respond? ms. anders: if we were looking at this under the rules of evidence, at trial, that would be no basis for categorical exclusion on relatability grounds. at least those 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. we think the jury will make a more reliable determination if they get to see evidence. the jury, not the judge, is a primary arbiter that 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 cart -- 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 of inconsistent with the eighth amendment? ms. anders: 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. 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 liability, we still have 403. in fact, the court was weighing the risk of unfair prejudice against its prohibitive value, which the court thought was nil. put aside reliability. i want to know, it was saying this was saying this would spin off into a mini trial. it's prohibitive value was low. it would confuse the jury, not add much. those legitimate grounds for
excluding the evidence? ms. anders: 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 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 front theories. one emphasized that tamerlan had played a lead role and,
therefore, that was relevant to show a lead role here. the district court said there was insufficient evidence to show or establish or be prohibited of that theory. 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 that was undisputed. with that be something that has to come in in the death penalty trial here for the penalty phase of his brother jacob -- his brother? ms. anders: it would be. >> explain the relevance of staying at 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? ms. anders: 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. 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, 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? the admitted evidence was that in terms of actual persuasion, the only actual persuasion was that tamerlan had sent dzhokhar articles. >> i thought he read al qaeda's magazine and messages and became influenced and decided he wanted to wage war against america. ms. anders: all of those arguments were given to him by tamerlan. what the government was able to work -- it was argued was that dzhokhar radicalize. nothing -- 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 devastated 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? is he not. he was under tamerlan's sway and there would have been tremendous pressure. with respect to leadership. i think that murder is incredibly probative. 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 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 -- tamerlan was not able to go into action until dzhokhar joined him. >> as i understood it, your primary. on the relevance of this evidence was to show that the brother had leadership, had taken leadership of other crimes. ms. anders: we made all of these arguments below. the evidence supports a variety of inferences. >> but the district court understood your argument to be that? ms. anders: the district court concluded that there is no way to tell who did what in the apartment. >> let us pursue that.
if the district court's theory -- if the district court understood your. 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 gotten. what do we do with that? ms. anders: if you look at what the defense said, it was a broader theory than that. >> lets us 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. ms. anders: it is not a basis for categorical exclusion. >> in 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? ms. anders: 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. tamerlan is the one steeped in jihadist materials. this is something that the government credited in 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 when he attempted to overcome law enforcement officers. ms. anders: 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 dzhokhar's, 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 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. in your response to that, this trial is already going on a long time. what is your response? ms. anders: 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. just because evidence is contested by the government does not make it unreliable. i adjudicated 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. 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. the final thing is that although the government has set there would be an expensive mini 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. >> 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 sort of doesn't make sense to have a 50-50 balancing test, because it is a constitutional right. ms. anders: 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 omitted in some form.
it would take extraordinary concern on the other side to justify categorically excluding evidence, especially when there are narrow ways to district -- 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. 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 stage 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. [no audio] he merely sent dzhokhar -- that tamerlan could not go into action until tamerlan -- until dzhokhar write him. if it had, the government would have said tamerlan is not just bossy, he is violent. he has already committed jihad. dzhokhar knows about it. >> 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 know if he used the term, but a mini trial, 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. ms. anders: 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 we are talking about 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 whether -- whether he 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. >> what is your argument about the standard under the federal death penalty statute? you argue that the balancing applies only to aggregating evidence?
if it applies to mitigating evidence, do you argue that it is inconsistent with the eighth amendment? ms. anders: the way that this works is that the ftp eight 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 discussion 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. >> 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? ms. anders: the eighth amendment will control when that mitigating evidence is reliable. the courts of appeals have said the exact same thing in the context of -- >> fort lee eighth amendment supersedes it to some degree. you think the eighth amendment supersedes it? you think this is to some degree unconstitutional? ms. anders: the eighth amendment provides a superseding limit on discretion just the way others supersede. that is what many other courts of appeals have precluded -- but when there is a constitutional concern -- >> but 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 confusion as a reason for excluding it? ms. anders: it can. i just think that the eighth amendment creates a strong presumption that those issues would have to be extraordinarily weighty. >> but it just has outweigh. ms. anders: i think the eighth amendment composes a constraint here. where the evidence is relevant and reliable, countering concerns would have to be extraordinary. >> 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? the last sentence just says outweighs. unless it is only applicable to aggregating evidence. ms. anders: the discussion under the 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. ms. anders: i think we have to establish that the fdpa is unconstitutional. the eighth amendment provides an other constraint on discretion. another way to think about this is in some ways, you do not have to get to it here, because with 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. 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 . 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 have -- what could have happened to dzhokhar here if this evidence had been permitted. >> you are welcome to take more time if you would like. ms. anders: does the court have further questions? >> 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. government attempted to introduce that as an egg or vader. what would your response -- an aggrvator. what would your response be? ms. anders: 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? ms. anders: the defense could make those arguments, but it would be difficult to keep it out. the jury is the primary arbiter of reliability here. jury ought to hear that evidence. that is what lower parts have generally held. >> one question about jury selection. you said that this supervisory room had been in place for quite some time. i got the sense that you thought it was regularly applied. how often? ms. anders: 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. 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. that reflects the routine question that is often asked. >> we have generally given the district courts quite a bit of discretion in jury selection. the court of appeals displaced that with a list of mandatory questions that if things should be asked in every single
complicated or widely publicized case? ms. anders: that would present a closer question. the district court does have discretion. what the district court did here was well within the court's president, both within the racial bias context and also them movement 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? ms. anders: 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 -- where 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. >> justice breyer? justice alito? justice everett? 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 stuff one is that my friend on the other side made a dish tied 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, the of 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 got me into the jihadist literature was learning that what the end of the road and jihadist 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 helpful or particular 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 breeze as it the court takes a little bit of time to review some of the video evidence included in the joint appendix. i physically 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
other 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, contemplating for about three minutes, taking out his phone and calling his brother after which the first bomb goes off. he was clearly waiting for a single 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 stop is not a very wide angle camera so he barely gets offscreen before 20 seconds later, the second on explicit, 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. after the bombing, the respondent was 60 miles away joins up with his other 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 reggie with 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 tamerlane 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 tamerlane. 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 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