S. Ct. Will Hear Government's Appeal of Reversal of Boston Marathon Bomber's Sentence


The government's petition is here, and the decision below is here. Here are the Questions Presented from the petition:

1. Whether the court of appeals erred in concluding that respondent's capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent's case.

2. Whether the district court committed reversible error at the penalty phase of respondent's trial by excluding evidence that respondent's older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

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  1. Didn’t some Bean Town asshole beat up a Czech tourist while under the impression that the bombers were from Czechia instead of Chechnya? Also, what is your favorite pressure cooker recipe?

  2. This kid will spend the rest of his life in jail. Is it really important to kill him before he dies a natural death?

    1. Yes it is. There is no guarantee that he will stay in the gray bar hotel.
      Because some liberal twit will see fit to grant him a Presidential Pardon.

      1. Trump actually pardoned people who murdered kids and you probably didn’t care.

        1. Were they convicted and sentenced to death?

          Show your proof.

          1. Well no, because this guy was tried by his buddies and then pardoned by Trump before anyone had the chance to straighten this out on appeal: https://www.theguardian.com/us-news/2019/dec/27/eddie-gallagher-trump-navy-seal-iraq

            1. How do you foresee him receiving the death penalty absent Trump’s involvement?

            1. Who cares? Those little bastards probably denied the legitimacy of the state of Israel.

      2. “Because some liberal twit will see fit to grant him a Presidential Pardon.”

        You would prefer he secure a pardon through Brett Tollman, Jared Kushner, and Orthodox Judaism?

        1. Nice anti-semitic slur.
          Good going RAK

          1. Good catch!

            Put the Academic Freedom Alliance, FIRE, and Prof. Volokh on it immediately!

      3. Just FYI, it was AG Holder, noted “wingman” of “liberal twit” ex-Prez Obama who authorized the capital prosecution in the first case. And “liberal twit” Prez Biden’s DOJ is defending the conviction and sentence at present.

        1. Don’t be crapping on other people’s preconceived narratives with your fancy actual facts.

    2. “Is it really important to kill him before he dies a natural death?”

      Yes. Its important that we value the lives he destroyed.

      1. What if they opposed the death penalty? How are you valuing them?

      2. That, Bob, is irrelevant to the argument for execution.

        1. “That, Bob, is irrelevant to the argument for execution.”

          In fact, its the moral case for it. Society devalues the lives of the victims by saying the life of the murderer must be protected no matter what, that his death would be a bad thing.

          1. It is the moral case. But it’s based on bad morals and puts innocent life at risk. And again: what if the victims didn’t believe in killing another person? How does it value them to kill in their name when they didn’t ask for it?

        2. It’s also silly. How does the fact that Charles Manson stayed the rest of his life in a California prison show a lack of value of Sharon Tate’s life? It’s a complete non-sequitur.

      3. Revenge doesn’t retroactively add value.

        1. Its not revenge. Its justice.

        2. It is not revenge; properly, it is retribution. Bob from Ohio is right about this: It is justice.

          There are crimes so heinous that you forfeit your life. Murder is an example.

          1. Exempt most murderers don’t forfeit their Whether anyone gets the death penalty is at best random and at worst racially biased. And when you increase the amount of capital prosecutions, you increase the amount of false positives resulting in innocent people being executed or spending years in prison waiting for it before finally being released.

            1. “when you increase the amount of capital prosecutions, you increase the amount of false positives ”

              By that logic, we shouldn’t prosecute anyone for anything. It just increases the number of “false positives” for that crime.

              1. Let me know when you can bring people back from the dead.

            2. I agree that bad-faith obstructionism on the part of anti-death penalty zealots has given many heinous criminals a windfall, and I’m glad you agree with me in advocating for President Biden to start appointing federal judges who can help restore some sanity to things.

          2. Commenter, that is the usual argument for the DP.

            What caught my attention was that the usual wasn’t Bob’s argument. His was: “Its important that we value the lives he destroyed.”

            Which is a much darker thing than retribution.

            1. Also very telling when you look at the statistics that demonstrate the race of the victim is a key indicator of what case will result in a capital charging decision and what the verdict will be.

            2. Sarcastr0, I am very much a law and order kind of guy; particularly wrt Noahide laws. Now Tsarnaev had his day in court. The jury found him guilty, and he was sentenced to death. He is, in fact, a murderer. To me, case closed. He gets the needle.

              Are you arguing he is innocent? You (and LTG) are not making that argument. You don’t like the consequence. Well, I cannot help you there. The Constitution does not prohibit it.

              Make the constitutional argument to tell me why Tsarnaev should not get the needle.

              1. Potter Stewart identified why almost 50 years ago:

                “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race [see McLaughlin v. Florida, 379 U.S. 184 (1964)]. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

                In the fifty years since, nothing has really changed except we have much more data. We have much more data about how race affects capital charging and sentencing (with the race of the victim becoming the key factor). And even putting race aside (gender too), we know that many of the charging decisions are completely dependent on which county does the charging.

                1. Tsarnaev was not capriciously selected. I mean, he was not singled out because of any particular attribute (like race). But I appreciate you’re taking a stab at it. I learned something new about Potter Stewart. I rather like him for his famous pornography quote: I’ll know it when I see it. 🙂

                2. Setting aside the rather obvious point that being struck by lighting rather obviously isn’t cruel and unusual, this position presents almost as much chutzpah as Breyer’s suggestion that executing someone after a long delay violates the eight amendment.

              2. This is a different debate than the retroactive worth-via-killing that I called out Bob for.

                My personal argument against the death penalty is moral: even monsters are human, and human life is sacred. Just because they broke that doesn’t mean I want my society doing so.

                Constitutionally, there’s plenty of options.
                That it’s cruel and unusual based on current standards of morality.
                We don’t hang people in the streets or duel anymore, we hold life in a different place than we used to.

                That it’s cruel and unusual as applied

                That it’s arbitrary since our justice system is really inexact

                That it’s arbitrary because our justice system is demonstrably racially tilted (McClesky v. Kemp)

                1. Human life is sacred, eh? I happen to agree.

                  I don’t see Tsarnaev getting the needle as particularly cruel and unusual. An easy out for him, if anything.

                  Was it the system, or the people in charge of it? = our justice system is demonstrably racially tilted (McClesky v. Kemp)

                  1. My feeling is that one doesn’t compound a sin with another sin, this one collectively performed.

                    Lethal injection has some pretty serious issues these days in it’s application.

                    All we have is the correlation. Dunno if it’s the system or the people. Either way, it’s a problem.

            3. “darker”?

              Nothing “dark” about it, victims are disrespected when we deny justice to them because of some misplaced sympathy for the killers.

              1. If I’m murdered and you execute my killer you’d be disrespecting me.

                1. How? (That’s a serious question—I’m not following your logic on this point at all.)

                  1. Bob says we “disrespect” victims by denying them the justice brought by an execution. He believes we recognize the value of the life of the victim by killing the person who took it away.

                    So let’s say I am emphatically against the death penalty and it is known before my death that anyone who kills me should never be executed. Let’s say my family and friends voice this to the prosecutors and the court and the public.

                    Prosecutor Bob ignores them and me. He claims he respects and values the life of me the victim. But he’s disregarding my feelings and the feelings of the people who knew me best. He didn’t value what I cared about. He didn’t value anything about what my life actually was at all. Yet he still uses my name to justify it. That’s not respect and that’s not valuing someone.

                    1. I apologize if I’m being dense, but I’m still not following.

                      Suppose you felt that someone who murdered you shouldn’t face any penal consequences at all. Would it be similarly disrespectful to prosecute your murderer anyway?

                      Bob’s point, as I take it, isn’t that capital punishment honors murder victims because it’s what they would have wanted. Rather, it reflects the value of the victims’ lives by representing our collective judgment that the enormity of ending them forfeits the murderer’s right to continued existence.

                    2. Yes. But that’s obviously not the correct thing to do for society as a whole because there are other social considerations involved.

                      But you shouldn’t say that you’re punishing because you valued and respected the victim in particular. You don’t. How can you say you “value” and “respect” someone that you don’t actually care about as an individual person?

                      You don’t value or respect the victim as a individual with thoughts and feelings. You value and respect the abstract concept of life itself. So death penalty proponents shouldn’t say it’s justice FOR the victim if it’s known that they wouldn’t want someone to kill in their name. Nor should they say they value and respect the victim if they clearly aren’t.

                      More broadly I don’t think other people get to decide if they’re being respectful towards me or not. I get to decide that. Just like you do.

      4. He ran over his brother while driving a carjacked Mercedes. I hope he suffers emotionally for that. However long he lives, I hope he feels terrible remorse for the lives he took and the people he maimed.
        I am a big believer in giving people a chance to make amends for the harm they do to others. That said, one way the state can emphasize its disapproval of a person’s actions is to deny them the opportunity to redeem themselves and expiate their guilt.

      5. You value life by killing someone? Hmmm…

  3. I have come to oppose the death penalty. It is a $billion appellate practice rent seeking scam. It is completely in failure in its every aspect. The dose-reponse curve has it in the ineffective range. Give a miracle drug like an antibiotic to 1 in 1000 infected people. Do so 7 years after the onset of infection. Then 10% of patients never had an infection. Does not look effective.

    Overdoses buted records in 2019 at 70000. In 2020, thanks to the lawyer lockdown, they happened to 83000. Good job of a mass extinction of crime, and of ending the criminal law business.

    If there is going to be a death penalty, I favor the Italian death penalty. Guard waves a carton of cigarettes. Difficult prisoner is stabbed 50 times. Investigation finds he committed suicide. The US has markedly dropped prison suicide with simple, no cost adjustments in policy. In Europe, prison “suicide” is out of control.

  4. 1. This is one case I’d like to see Dr Ed comment on – if he can keep his immature snark inside.

    2. Did you know the old brother who was killed is buried in an unmarked grave in Virginia (in Doswell, very close to King’s Dominion amusement park)? The local sheriff had approved the request to bury the body but didn’t tell anyone. Of course folks went apeshit when they found out.

    1. Antigone II.

    2. ” Did you know the old brother who was killed is buried in an unmarked grave in Virginia”

      Actually, I didn’t — but I did like what the owner of the Worcester funeral home said — “we are a civilized country, we bury our dead.”

      As I understand it, he did it for free — because it was the right thing to do. Because “we are a civilized country” — these sorts of things say who *we* are, not who “speed bump*” was.

      *Noting that being run over by his brother was the cause of death, Boston’s Howie Carr took to calling him “speed bump” — easier to spell and considerably easier to pronounce, with the added ability to include opinion of him.

      1. Didn’t Lee Harvey Oswald get a Christian burial back in 1963?

        Was there any question that he shouldn’t?

        1. You guys are funny.

          On the execution side, it should be as nasty and vile as the imagination can take us.

          But on the burial side, it should be proper and solemn.

          Don’t both these things say who “we” are?

          1. 1: Outside of sarcastic references to things I oppose, I have never called for a violation of the 8th Amendment.

            2: Respect for human remains is independent of whose they are.

          2. “On the execution side, it should be as nasty and vile as the imagination can take us.

            But on the burial side, it should be proper and solemn.”

            We use a medical procedure, a shot. Just like a million beloved pets every year.

            So “nasty and vile”.

            1. Have you ever observed one?

              1. Quit with the nonsense. Trying to pretend that the lethal injection process is horrendously cruel and unusual isn’t even worth laughing at.

                Please tell me. How is it done as a humane act to animals? How did activists like Dr. Kevorkian fight for DECADES for right to die laws to allow for “doctor assisted suicide” by lethal injection in the name of death with dignity and giving people a peaceful death? How does this square with your claims?

                It doesn’t.

                Any actions that cause it to be insufficient or painful are due to the tortuous interference of activists who have deliberately made lethal injection more difficult and less effective by mandating certain drugs with the explicit plan to prevent the state from purchasing them.

                We could easily replace all of this with a dectuple dose of morphine. Killing people with medicine is so easy that you have to go to school for years to not do it.

                Quit lying. Doing so only means that you don’t believe in the strength of your argument.

                1. 1. I didn’t claim anything.

                  2. Have you ever observed one?

                  3. There are several of examples of executions being done with drug cocktails that increase human suffering. Whether that is activists fault is immaterial. What matter is what drugs the state actually chooses to use and their effect on the human body. Notably, they don’t just OD people with morphine.

                  You can’t tell me to “quit lying” when I didn’t even say anything.

                  1. Why DON’T they just OD people with the seized (and hence free) fentanyl. It would have the side benefit of reminding people that this stuff is lethal.

                    1. The performative psychopathy of the Internet, folks!

              2. Not for a human, but for a beloved animal companion. It was back in 1988 I think. One of our beloved dogs suffered degenerative disc disease (same thing I suffer from). The day came when she could no longer stand up. I picked her up and carried her to the car. My parents came with me. We went to the vet across the street. I carried her in. The vet gave her a shot and she died peacefully. I remember my father, age 79 or 80 at the time, gave a loud sob. That was the only time I ever heard him cry like that.

            2. Bob, putting down his beloved murderers.

    3. This is one case I’d like to see Dr Ed comment on –

      What is wrong with you?

    4. “This is one case I’d like to see Dr Ed comment on

      I see three *unrelated* issues here.

      1: UMass Dartmouth ought to have known that one of their students was literally building bombs in his dorm room. (His buddies were convicted/plead to removing evidence thereof from his dorm room on his behalf). He escaped UMD’s scrutiny because of his religion — a Christian or Jewish student merely *saying* some of the things he was saying would have been tried in absentia by their star chamber known as ACT. And upon finding explosives (or their containers, i.e. disassembled fireworks) in his dorm room — and it would have been searched — this could have been stopped.

      Likewise the Russians warned us about these two, and the Obama administration and the “Famous But Incompetent” (FBI) failed to act. Heaven forbid that we accept the fact that some folks talking about killing us actually are telling us the truth — that they plan to do it…

      2: Others here can do a better job of filling in the details, but some of the domestic terrorists of the 1960’s/1970’s were either found not guilty or had charges thrown out because of misconduct by well-intended but overzealous FBI agents. I’m thinking of one case in particular where they were guilty as hell, but so was the FBI and either the exclusionary rule or something similar applied.

      So too here — sending fully-armed SWAT teams into occupied private residences (with neither permission nor a warrant) is so reprehensible that — well — we fought a war because the British were doing that in Boston, and they were only searching individual homes, not entire neighborhoods.

      3: Daniel Shays sought to overthrow the US Government and came damn close to doing it — had he captured the arsenal in Springfield, he likely would have. He & his had killed a few people.

      George Washington made the right decision to pardon the whole bunch of them, they had to confess and apologize and couldn’t vote for a while, but that was it. And Washington did this because he realized that we didn’t need martyrs. (Britain & Spain had fought a 9-year war over “Jenkin’s ear” — him only loosing his ear, not his life — Washington knew this.)

      That’s why I think it was a mistake to execute Timothy McVeigh — although, fortunately, he didn’t become a martyr to his ilk. There’s also the disturbing question of what secrets may have died with him — and so too with speedbump. It’s often beneficial to the government to have a dead defendant — or helpful to future investigators to have a living convict to interview.

      People still speculate as to what Jack Ruby might have said had Earl Warren honored his request to be interviewed in DC — maybe it was an opportunistic lie and maybe it wasn’t, but we definitely will never know. Nor what Oswald might have been willing to say after a decade at — I believe — Alcatraz.

      There is a place for the death penalty, but for a first offender who has lived the spoilt life of privileged status at UMD, the supermax is actually a more draconian punishment. Let him rot.

      1. There is a place for the death penalty, but for a first offender who has lived the spoilt life of privileged status at UMD, the supermax is actually a more draconian punishment.

        Seems a little odd that he’s fighting so hard for it, then.

        1. It’s possible for life in prison to be both more draconian and less, because it is a different kind of punishment than the death penalty.

          1. A death penalty lawyer told me most death row inmates don’t want to die, because a prison life is still a life. Maybe it’s more draconian for some. And maybe some of the particulars are ultimately more brutal, like certain forms of solitary.

      2. Alcatraz was no longer a federal prison when Kennedy was shot, having closed in March of ’63.

  5. As someone who remembers how surreal it was the day that Boston was literally shut down, media coverage is the least of it.

    Remember that Boston initially was a peninsula and other than the natural land bridge on the so-called “Boston Neck”, the only access to the city is via a bridge or tunnel crossing either the Charles or Mystic Rivers — or the harbor itself. Even with the massive landfilling of the 19th Century, there still are less than a dozen roads into or out of the area, and the cops shut them all down that morning. Along with the subway and railroads.

    They sent fully-armed SWAT teams on door-to-door searches of private homes, little things like the 5th Amendment notwithstanding. The wail of the sirens of additional SWAT teams coming down from New Hampshire (and possibly even Maine) filled the surreally-quiet air — I think they even shut down Logan as I don’t remember hearing airplanes that morning.

    To say they shredded the Constitution in pursuit of this perp is an understatement, the authorities raped every concept of civil rights (of INNOCENT people) that this country has ever seen — and throwing out the death penalty is the appropriate response here.

    As an aside — not withstanding their overreach, the cops didn’t catch him. When they lifted the martial law/house arrest fiat around 8PM that night, a homeowner (whose privacy had been violated at gunpoint) went out into his yard to smoke a cigarette and noticed something that the intrepid Storm Troopers had missed — that the tarp covering his boat had been untied and was ajar, indicating that someone was inside it.

    He called the police who responded and shot his boat full of holes — destroying it — but capturing the perp in the process. And as to the guy whose boat they destroyed, sucks to be him…

    Forget what the media said — someone so dangerous that big men armed with fully automatic weapons have to invade your home and terrorize your small children looking for him? There isn’t a person in these six area codes who wouldn’t execute him….

    A change of venue to Springfield or another NE state *would* raise legitimate questions of media — but in Metro Boston that is a moot point. Emotions were running so high that the FCC ruled that saying “this is our fucking city” on the radio was acceptable in light of the totality of the circumstances.

    Besides, Washington was right with Daniel Shays — we don’t need to make martyrs.

    1. The lawyer turned a murder into a major disruption of the local economy inflicting $billions in damage, far more than the terrorists. Only after the shutdown was ended, did the owner came out of his house to smoke. He spotted the terrorist in his parked boat. How stupid and destructive is this profession? It is 10 times more destructive than the terrorists that want to attack our nation.

      1. The cops did it before the lawyers could.

        And they don’t talk about the cops who were injured by friendly fire. The MBTA cop who literally bled to death — the hospital replaced more than 100% of his blood, but somehow managed to save him — was hit by fire from a fellow officer. There were about a dozen police departments in that firefight (remember that the colleges all have their own) and the term clusterf*ck comes to mind.

        1. Doctor. You know a lot more about this incident and make a far better case about the extreme failure of the lawyer profession. Such failure in any other business would get people fired.

          1. Ummm — there were no lawyers involved.

    2. Mark Wahlberg and his Funky Bunch gang from South Boston would have caught the terrorist and dealt with the body without a need for a trial. Marky Mark could have also stopped 9/11 if he was on board one of those planes. Would have been a lot of blood in the first class cabin though….

      1. “Mark Wahlberg and his Funky Bunch gang. . . . ”

        You mean with or without Ted?

      2. The minimum-wage security person at the Portland (ME) Jetport could have as well if she’d been permitted to use her judgment and not been bound by political correctness. She didn’t want to let Mohammed Otta onto the plane (to Logan, that got him inside security there).

      3. That is so 1970’s — the real problem today is MS-13.

        South Boston is now known as “The Seaport” and isn’t the ghetto it was back then. (Both trade and fishing had declined in the 1950s, with the warehouses moving out to where they were more accessible by truck as rail imploded.) Gentrification actually started in Haymarket Square with the Quincy Market (almost demolished in the 1970s) but has spread to South Boston and Charlestown (both part of Boston) and Somerville (which isn’t).

    3. I lived near the edge of the lockdown zone and was able to sneak out and get to work as normal. I was hoping somebody who was hassled for violating the stay inside order would sue the cops for everything they had. Definitely a case of the cure being worse than the disease.

      1. Like people have been able to sue Baker for his current orders?

  6. Did the court accept the questions as presented by the appeal?

    They seem calculated to get a reversal.

    1. Yes. At least I don’t see any indication the questions were reformulated.

    2. “They seem calculated to get a reversal.”

      How should a party seeking reversal craft questions?

  7. I started off as a death penalty supporter; if there’s an argument for why the world is a worse place because Ted Bundy is no longer here, I have no idea what it would be. But having spent many years (decades, actually, I’ve been doing this since 1978) seeing, up close and personal, just how many screw ups the legal system is capable of making, I simply no longer trust the courts to get it right. And I’m amazed at conservatives who think the government is incompetent at everything else who somehow assume that it magically acquires the wisdom of Solomon in death penalty cases. Nope; that prosecutor and that judge are just as much government employees as the city employee who can’t fix a pothole.

    And even in a case like this, where there is no doubt as to guilt and his crimes richly deserve the DP, executing him makes it easier to execute some poor schlup whose real crime was having a bad lawyer. I wouldn’t trust the legal system to go to the store for a gallon of milk.

    1. “that prosecutor and that judge are just as much government employees as the city employee ”

      The jury members are not.

      “execute some poor schlup whose real crime was having a bad lawyer”

      Its not 1950. Defense lawyers have to be experienced “death qualified” lawyers.

      1. If you think that mistakes still aren’t being made at the trial level you really need to get out more.

        1. Bob from Ohio believes our government is inefficient, misguided, overbearing, and suspicious — until it wants to kill someone (a black or brown person, ideally) identified by police officers and targeted by prosecutors, at which point he concludes our government is infallible, righteous, measured, and beyond reproach.

          Our Bobs from Ohio can’t be replaced quickly enough.

          1. The Joker was convicted in 2015 under Obama’s US Attorney for MA. From everything I saw, Andrew Lelling, Trump’s USA-MA, is an honest man and I doubt this would have gone forward to SCOTUS over his objections.

            Remember that this is FEDERAL court, in Boston, not some backwater county in Alabama or Mississippi in the 1950’s…

        2. “If you think that mistakes still aren’t being made at the trial level you really need to get out more.”

          They get a round of direct appeals, all the way to the US supreme court. Then, if a state conviction, state post conviction proceedings. Then federal habeas.

          Then of course plenty of last minute cases and motions.

          No one in the US gets more due process than murderers.

          1. Ah, but what is it that’s being appealed. Not the central question of guilt or innocence, but whether this or that rule was complied with, whether this or that bit of evidence should have been admitted, whether the lethal drug cocktail complies with the Eighth Amendment.

            Unlike you, I actually used to do death penalty appeals. Most of the time, by the time the case is reviewed by an appellate lawyer, it’s too late; the trial lawyer already screwed things up beyond repair. Claims were procedurally defaulted, objections weren’t made, stuff didn’t get put in the record. I don’t care how many appeals someone gets, most of that simply isn’t fixable at the appellate level.

            Now, if you wanted to actually fix the system, sink a lot of money into providing the defendants will quality representation at trial. On that front, things are still better than they used to be, but far from optimal. But no legislature wants to spend a lot of money defending murderers.

            1. Lol. Bob thinks public defense is a waste of money and Gideon was wrongly decided. He once grudgingly admitted he could “live with” the outcome in Powell v Alabama because apparently he has a soul somewhere under a thick layer of sadism and misanthropy.

              1. “misanthropy”

                You cry for murderers. Boo hoo, Bob is being sadistic because he wants justice.

                1. You think the Scottsboro boys were murderers? What about Will Stinney? I bet you’d provide the phone book, huh?

                  And that doesn’t explain your general, and disgusting for a supposed lawyer, antipathy to the concept of public defense for people who aren’t murderers. That’s pure cruelty and sadism.

                  1. Got any cases this century?

                    “That’s pure cruelty and sadism.”

                    Turn the computer off. Take a walk. You are getting hysterical.

                    1. Turn your computer off, read Gideon’s Trumpet and reconsider your ethics and morals. Maybe read What We Owe to Each Other. Or Cesare Beccaria. Or Montaigne.

                      Or at least watch The Good Place.

                      It’s never too late to become a better person.

            2. Actually, you are both wrong — and the Commonwealth of Taxachusetts doesn’t even *have* a death penalty (although we almost got one after the NAMBLA guys raped/murdered Jeffery Curley a couple of decades ago).

              This is a FEDERAL conviction and hence the first appeal is to the 1st Circuit and the second is to SCOTUS. I don’t think that the Commonwealth ever tried him for any of the state crimes he committed — that would have been the Suffolk County DA’s Office, now headed by Rachael (decline to prosecute) Rollins.

              No: Watertown, Brookline and Cambridge are in Middlesex so he could also be tried in that county as well (MIT is in Cambridge). (Boston’s in Suffolk which is why these communities never got absorbed into Boston.)

          2. Due process that you don’t want them to have .

            1. “Due process that you don’t want them to have .”

              That’s partially true, we let them have decades of legal proceedings. 90% meritless and merely for delays.

              1. Wholly true. You don’t believe in Gideon, therefore you don’t believe in fair trials or due process at all. You want to see poor people flounder in proceedings they don’t understand while their life is decided by the politically ambitious.

                1. Somehow we had “fair trials” and “due process” before Gideon.

                  “believe in Gideon”

                  Its a religious totem with you I see.

                  1. You put them in scare quotes because you know those things didn’t really exist. Thanks for telling on yourself. You always do.

                    I believe in Gideon because it is an expression of our highest ideals as lawyers regarding public service, creating a true adversarial system and notions of fair play. Maybe you don’t believe in our profession, if so, turn in your bar card and do something else.

                    Seriously. It is absolutely shameful we are members of the same bar. Shameful. Someone who doesn’t believe in Gideon and public defense probably doesn’t believe in any notions of due process and fair play. You probably don’t believe in Brady either. Cheat to win.

      2. You should probably note that you actually wish it was 1950 in terms of criminal defense, Mr. “Gideon was wrongly decided and public defenders are a waste of taxpayer dollars.”

        Since you don’t want them to have lawyers if they can’t afford it, your invocation of them in defense of the death penalty is pretty meaningless.

      3. Ah, yes, Bob. The jury members. Public executions were once a thing in this nation. Problem was, observant bystanders among the other spectators got too good a look at what was lurking in the jury pools. Take one look at the pro-death crowds who rally to cheer an execution even today, and you know you can’t trust any random cross-section of that with an innocent person’s life.

    2. The world didn’t improve or worsen because Charles Manson died in prison. And it’s no worse or better because Bundy was put to death.

      1. Why have law at all?

    3. It probably would not be hard to create a profile for cases where guilt is undisputed beyond any doubt. It probably would not be hard to create a profile for cases where guilt was proven beyond a reasonable doubt, but where some doubt remains. And it probably would not be hard to create a profile for cases where some kind of misconduct (police or prosecutorial) happened.
      Capital punishment should only be allowed for cases in the first category. Executive clemency should be the rule in all others. Prosecutors would probably stop pushing time, effort, and their budgets into cases where they know the death sentence will be set aside.

  8. I am pretty opposed to the death penalty generally, but I’m somewhat annoyed at the court system trying to come up with increasingly tedious questions that wouldn’t be necessary under any other circumstance to try to limit its scope.

    I mean, if the courts want to make it illegal, say so, if not, then apply the same due process standards for death row as you would life in prison or anywhere else. I dont see why there are two sets of rules. If those questions were necessary to ensure due process, they are necessary everywhere.

    And there is somewhat of a frustration of mine for originalist, and even pragmatist judges, when they handle criminal justice issues, which is that, whether allowing a given rule increases the accuracy of the judgment is an empirical question. You can define the values and what you hope to achieve from practice from an originalist basis … but whether you comport with that is empirical.

    And yet no one on the court bothers to use any data to see if, for example, jury instructions do anything (though there are plenty of studies saying they don’t.) So the outcome of a case depending upon jury instructions seems rather ridiculous. Similarly here … do these questions actually matter for achieving a just outcome? Even if we have a consensus on what “just” means here? Is there an economic model of that?

    1. For example, one of the only opinions I agreed with Justice Ginsburg on was her dissent in the dual sovereignty case where she effectively said, it really doesn’t matter if dual sovereignty was there at the founding common law or not.

      What matters is whether it, in MODERN practice, violates the original understanding of the double jeopardy clause, which it clearly does. You can still use the original understanding, but that does not mean how things actually play out in the real world does not matter.

      Ah well, I’m an engineer I tend to get overtly annoyed when arguments aren’t backed up by data or how the world actually works.

  9. On the first issue, there would appear to be two different arguments for reversal:

    1. The First Circuit raised its Patriarca standard for voir dire sua sponte, when the issue hadn’t been raised by defendent and the circumstances didn’t constitute plain error.

    2. The First Circuit’s Patriarca standard for voir dire requires more than is required by Supreme Court precedent and more than is necessary to meet constitutional requirements

    1. It sounds like you think that there’s actually an important legal issue here that needs to be decided. Is that correct? I hope you’re right. I didn’t want to read the First Circuit’s interminable opinion, but the cert petition says at the outset that these are largely case-specific issues. SCOTUS almost never grants cert in a case merely because it’s gotten a lot of public attention, and in my view it’s almost always a mistake to do so. That kind of case often makes bad law, because the court can get distracted by the facts instead of focusing on the issues.

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