Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence

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Justices Brett Kavanaugh and Elena Kagan clashed in a rare test exchange between justices on the bench on Tuesday as the Supreme Court considered whether an appeals court was justified in overturning the death sentence of Boston bomber Djokhar Tsarnaev.

Tsarnaev was sentenced to death for his role in the 2013 bombings, which he carried out along with his brother Tamerlan, who was killed while trying to flee the police shortly after the attack. The district court’s 2015 death sentence was overturned by an appeals court over the jury’s alleged improper handling of media consumption and the court’s boycott of evidence that allegedly undermined during the sentencing phase.

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Justices Sonia Sotomayor and Elena Kagan told public prosecutor Eric Feigin specifically about the reduction of evidence that the defense was not allowed to present: Tamerlan may have been involved in a jihad-related triple-murder two years before the Boston bombing. could. The evidence was relevant, the defense said, as it bolstered their argument that Djokhar would not have carried out the bombing if it had not been for the influence of his overbearing older brother.

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The government and the district court argued that the evidence for those murders was not particularly strong. But Kagan told Feigin to “believe” that the evidence was strong: what the district court should have done then, he asked.

Supreme Court considers reinstating the death penalty for Boston bombers

“Your whole case hinges on the assumption that the evidence just wasn’t strong enough,” said Kagan, “how is the district court’s job to evaluate that question too low?”

But later in the argument Kavanaugh appeared to criticize his colleagues for wanting to believe the evidence that Tamerlan was involved in the triple-murder was strong. Kavanaugh said the district court’s main reason for dropping the evidence was that it was weak, so there was no point in looking at the case that way.

Kagan retorted: “The premise was assumed because that was the role of the jury.”

It was a rare moment of tension on the collegium Supreme Court in general. Even if judges are taking a very different approach to a case, they almost always avoid displays that appear to be critical of their colleagues.

Meanwhile, Justice Samuel Alito and Chief Justice John Roberts spent the second part of Tuesday’s argument lobbing tough questions on Tsarnaev’s lawyer, Ginger Anders.

This October 8, 2018 file photo shows Supreme Court Justice Brett Kavanaugh at a formal swearing-in ceremony in the East Room of the White House in Washington.  Kavanaugh was involved in a controversial exchange with Justice Elena Kagan during an oral debate on Tuesday.  (AP Photo/Susan Walsh, FILE)

Roberts asked whether allowing murders to be considered would have indicated an unnecessary “mini-trial” on a question to which no credible answer is available.

“It’s not a question of who you believe – they’re both dead and they’re not there,” Roberts said.

Anders responded, “It was a case of mitigation. I don’t think it can be an unfair mini-trial here,” emphasizing that the weak evidence of the murders was essentially a whole case of defence. “It was the test.”

The matter is likely to be decided no later than June 2022, when the current term of the Supreme Court ends.


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