Tsarnaev alleges his cap and bandana were confiscated by prison guards "because, by wearing it, I was 'disrespecting' the FBI and the victims" of the April 15, , bombing. During the investigation, Tsarnaev was referred to by law enforcement as "White Hat" when he was seen on surveillance video leaving the scene of the bombings. Three people died and more than people were injured at the scene when two pressure cooker bombs were set off near the marathon's finish line.
Tsarnaev's older brother, Tamerlan Tsarnaev, was killed in a shootout with police three days later. Dzhokhar Tsarnaev was convicted and sentenced to death, but the death sentence was overturned last July by a federal appeals court that said the judge who oversaw the case did not adequately screen jurors for potential biases.
That decision has been appealed to the U. Supreme Court. Todashev had begun to write a confession but then attacked the agents who shot and killed him.
Dzhokhar's lawyers sought to include the evidence because they argued it supported their proposition that their client did not deserve the death penalty, because he was only acting under the direction of his older brother who played a much greater role in executing the bombings at the marathon, as evidenced by his past experience.
In court Wednesday, Tsarnaev's lawyer Ginger Anders said it was "central to the mitigation case" demonstrating that the brothers were not equal partners in the crime. She said that the district court's error compromised safeguards needed to ensure that her client received an appropriate penalty.
But Deputy Solicitor General Eric Feigin called the evidence "unreliable hearsay" from a "dead man with a powerful motive to lie" and said the information was not central to the jury's final verdict.
He said the murders remain unsolved and that there was insufficient evidence to describe Tamelan's true role in the crime to the jury. Feigin said that the jury decided to recommend death because Dzhokhar positioned himself "behind a group of children, putting down his backpack. In court, conservative justices seemed to agree with Feigin suggesting that the district court had been correct to exclude the evidence because it had never been proven and could be misleading to the jury.
Justice Samuel Alito asked sarcastically at one point whether a district court had to adopt a policy of "anything goes" when it comes to admitting testimony. Justice Brett Kavanaugh said he viewed a district court judge as having a "gatekeeping role" to keep out unsubstantiated evidence, and Justice Amy Coney Barrett noted that rules allow information to be excluded if it is "misleading.
But liberal justice Elena Kagan said that the evidence was the kind that should be admitted, especially because it was so central to Tsarnaev's case. She wondered if it didn't represent a "classic case" of evidence that might be "highly relevant. She said the jury should have been able to consider it during its own deliberations -- "that's what a jury is supposed to do.
It is unclear whether, even if Tsarnaev's death penalty is reinstated, he would actually be put to death. In July, Attorney General Merrick Garland imposed a moratorium on federal executions while the Justice Department reviews policies and procedures. Barrett brought up that question in court asking: "What is the government's end game here? Over the years, survivors and family members have split on whether Tsarnaev should get the death penalty.
Jennifer Kauffman said she was watching the race when the first bomb detonated and she suffered hearing loss, heart arrhythmia, internal bruising and swelling.
But they said he was easily manipulated by his brother, whom they called the mastermind. Tsarnaev sat impassively in the courtroom as survivors of the bombing took their turns in the witness box only a few feet away, describing losses of limbs and the continuing pain from shrapnel that was packed inside the pressure cooker bombs.
Word of Friday's ruling stunned many in Boston, a community where nearly everyone knew someone affected by the bombings. Bill Richard, the father of an 8-year-old boy killed in the attack, declined to comment but referred to the essay he and his wife wrote at the time of the sentencing. Tsarnaev, who is now 27, has been at the federal maximum security penitentiary in Florence, Colorado, since the trial ended in The judge ruled that the testimony was unproven and that the killings were too far removed from the bombings.
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