On Wednesday, the Supreme Court considers whether to reinstate the death penalty for the Massachusetts man who, at age 19, joined with his older brother in the mass casualty bombing at the Boston Marathon race eight years ago. That is the first hearing of two tomorrow. The second, described briefly below, involves a complex dispute over Social Security pensions for those who served in civilian positions in the National Guard. The hearings’ live audio can be heard at the Quick Links on the Supreme Court’s homepage – supremecourt.gov – and on TV (without video) at c-span.org/supreme court and on smartphones at C-Span Now App.
First case: United States v. Tsarnaev (The hearing, scheduled for one hour, starts at 10 a.m.)
Background: Two young men, born in the Soviet Union and radicalized by terrorist propaganda after coming to the U.S., were on a self-proclaimed mission of holy war (“jihad”) in Boston on April 15, 2013 – the day of the famous Boston Marathon race. Their weapons were two homemade bombs, kitchen pressure-cookers filled with nails and BBs. The devices exploded seconds apart in the midst of a crowd near the race’s finish line. The carnage left three people dead (including an eight-year-old boy), eight people had lost their legs (including that boy’s six-year-old sister), and hundreds of others were gravely wounded; some lost their sight or hearing.
Dzhokhar Tsarnaev, then 19, and his 26-year-old brother, Tamerlan Tsarnaev, left the scene. Three days later, they shot dead a campus policeman at Massachusetts Institute of Technology. They hijacked an MIT student and his car, and took off out of town.
Soon, the FBI used the tracking system on the car to locate the brothers in Watertown, Mass. A shootout there with police followed. When Tamerlan’s gun stopped firing, police wrestled him to the ground. Dzhokhar got into the car, and steered it toward the police. The officers got out of the way, but Dzhokhar ran over his brother, who died a few hours later. Dzhokhar fled to a residential neighborhood, where he was later captured by police; they found him hiding under a canvas-covered boat in a backyard.
Dzhokhar was charged with 30 crimes, including multiple murder and terrorism counts. The trial court summoned a huge pool, 1,300, of potential jurors, and required each of them to fill out a questionnaire that asked them, among other things, about their exposure to publicity and whether they had formed an opinion about guilt or innocence. The judge, however, turned down a request by the defense lawyer to require each juror to spell out what they knew about the facts of the case.
Three times, Dzhokhar sought to have the trial moved away from Boston, claiming that widespread publicity would wrongly influence the jury against him. Those requests were rejected by the trial judge, who said the coverage did not amount to “blatantly prejudicial information.” A federal appeals court also rejected the transfer requests.
Part of the strategy of Dzhokhar’s lawyers was largely to admit he had done the crimes, but to suggest that he had acted under the influence of his older brother, Tamerlan. They sought to bring the brother’s character before the jury. The lawyers asked the judge to order the prosecution to bring in evidence of an unsolved triple murder earlier, in Waltham, Mass., in which Tamerlan had been a suspect. The judge denied the request, ruling that it would confuse the jury.
The jury convicted Dzhokhar on all 30 charges. A separate proceeding was held on the death sentencing issue, and the defense team again failed in an attempt to bring in evidence from the Waltham murders. On the jury’s recommendations, the trial judge imposed a death sentence on six counts, and life in prison on some counts. The judge added several prison sentences for other counts.
A federal appeals court upheld the convictions on all but three of the charges. However, it overturned the death penalty, and ordered a new trial court proceeding on that. It said the trial judge should have asked the potential jurors to spell out precisely what they knew about the publicity surrounding the case. That did not affect the guilty verdicts, that court found, because Dzhokhar’s lawyers had largely conceded that he had carried out the crimes.
The appeals court also rejected the death sentence on a second point, declaring that the trial judge should have required that the jury hear the evidence about the Waltham murders, as an indication of Tamerlan’s ability to intimidate his younger brother to get him to join in the Marathon bombing.
The federal government appealed to the Supreme Court, calling the case “one of the most important terrorism prosecutions in our nation’s history.” Government lawyers argued that there should not have to be a new death penalty proceeding at all – partly because of the harm to victims who would have to testify again, and partly because it said the appeals court was wrong on both the question of prejudicial publicity and on exclusion of evidence about the Waltham murders.
The questions before the Court: When a court is considering a death penalty in a criminal case, must the judge ask every potential jurors to recite specifically what they had seen or heard about media coverage of the case? Was the appeals court wrong in requiring that the jury hear about the murders committed in Waltham two years before the Marathon bombing?
Significance: Since the 1960s, the Supreme Court and the legal community in general have spent a great deal of time exploring news media publicity about crime and the impact it has or may have on the right of accused persons to a fair trial. The abiding question is this: when does publicity — before or during a trial — sway jurors and lead them unfairly to bring in guilty verdicts? That is difficult, but so is another core question: what can the courts do to prevent that prejudice? That core question is what this case is about.
The controversy has never been about routine press coverage of crime or of criminal trials. It has been about “sensational” or “notorious” press accounts. An example often cited, from a case decades before the Supreme Court got deeply involved, was the lurid coverage of the 1932 kidnapping and murder of the baby son of famous aviator Charles Lindbergh. A German immigrant carpenter, Bruno Richard Hauptman, was convicted of the crime and was executed. H.L. Mencken of the Baltimore Sun wrote that the case was “the biggest story since the Resurrection.”
A serious national conversation about the prejudice issue began in the late 1960s, prompted in part by an influential American Bar Association study, the “Reardon Report.” One of that 1968 report’s conclusions was this:
“Freedom of speech and of the press are fundamental liberties guaranteed by the United States Constitution. They must be zealously preserved, but at the same time must be exercised with an awareness of the potential impact of public statements on other fundamental rights, including the right of a person accused of crime, and of his accusers, to a fair trial by an impartial jury.”
The Constitution’s First and Sixth Amendments are at the center of the still-unfolding conversation about “free press vs. fair trial.” The First specifically protects freedom of the press (now, both printed and electronic), and the Sixth assures a “public trial,” which the Supreme Court has interpreted to mean that the press, like the general public, has a right to sit in on criminal trials and comment on them. The Sixth also specifically protects trial before an “impartial jury.”
The Justice Department’s appeal of the reversal of the death sentence for Dzhokhar Tsarnaev will give the Supreme Court a fresh opportunity to guide trial and appeals judges on how to assure the selection of a fair jury when a case has been deeply immersed in highly emotional publicity.
The appeal argues against the appeals court’s “inflexible mandate” of a highly specific procedure that takes too little account of trial judges’ ability to neutralize any negative effect on the jury and too little account of the degree to which intelligent jurors can be trusted to look beyond the press accounts.
The appeal on the second point, about the Waltham murders, raises a largely fact-specific issue about the how trial judges use their power to keep out evidence of other, unrelated crimes that may influence or distract the jury, and the ability of jurors to keep their focus on the case before them.
The government’s appeal papers, besides making legal arguments, are filled with disturbingly graphic details of the horrors of what happened at the Boston Marathon. Dzhokhar’s reply papers chose to put their first and strongest emphasis on the issue of excluding the evidence about the prior Waltham murders, suggesting that they, too, were committed to carry out a “jihad” mission by his brother. The reply downplays, significantly, the publicity issue, saying the appeals court merely applied its customary standards on that point.
The American Bar Association has filed a brief in the case, saying it takes no position on the publicity issue in this specific instance, but it does strongly advocate that, when a criminal case has been surrounded by heavy publicity, the judge should question each potential juror about the content of exactly what they know about the case.
Second case: Babcock v. Kijakazi (This hearing, scheduled for one hour, is expected to start soon after 11 a.m.)
Background: The federal pension system, Social Security, has long had an escalator feature that is meant to benefit lower-income wage-earners who have paid taxes to qualify for that retirement check. Under the escalator clause, the pension amount rises to compensate for having lower earnings on which they paid the tax. In other words, the rate of their pension benefit is higher than is true for pensioners who had earned more income.
But Congress in 1983 confronted the reality that some pensioners were getting a “windfall” in their checks, because in addition to the earnings on which they had paid Society Security taxes, they also had received income during their working life from an outside source (not one to which Social Security taxes applied). Congress passed a formula to eliminate such a windfall.
In 1994, however, Congress decided to make an exception to the windfall exclusion formula. Applying its kindly view of people who serve their country in uniform, it provided that the exclusion of other income from the formula would not apply if that had come from “a payment based wholly on service as a member of a uniformed service,” with such service defined to include duty in the National Guard.
The case now before the Court involves a Michigan man, David Bryon Babcock, who is now retired after 39 years in the National Guard as an aviation technician and trainer. Although he wore a uniform at work and performed military duties, and served some time in combat duty while deployed in Iraq, he was classified as a civilian employee who qualified for a pension from the federal civil service system, which is separate from Social Security.
He paid some Social Security taxes on the pay he received for his active-duty military service and for his weekend “drill” service with the Guard. After retiring from the Guard, he worked for a few years in private industry, and paid Social Security taxes on income from that source.
When he applied for a Social Security pension, he wanted the government to exclude the money he received from his civilian status with the Guard from the windfall provision, arguing that this was not a windfall but rather was income from military service. Social Security officials rejected his plea, concluding that the civilian status of his position meant that his pay had not come from military service. That led to a reduction in the amount of his Social Security check.
That result was upheld in lower courts, leading Babcock to appeal to the Supreme Court, arguing that lower courts are split on how to define Social Security rights for individuals who served in the National Guard but did so in a civilian status. The case does not appear to have any wider impact beyond that specific issue.
The Supreme Court will resume hearings on November 1.