Liberal Justice Elena Kagan clashed with her conservative colleague Brett Kavanaugh during a Supreme Court hearing over the Boston Bomber on Wednesday as they heard arguments about whether an appeals court was justified in overturning Dzhokhar Tsarnaev's death sentence.
It was a rare breach of protocol as liberal and conservative wings clashed over the punishment for Tsarnaev's role in the 2013 attack that killed three people.
The court's conservative majority appeared sympathetic toward the Justice Department's challenge to a 2020 lower court ruling that upheld his conviction but overturned his death sentence.
The three liberal justices asked tough questions but it appeared unlikely that enough of their six conservative colleagues would join them to secure a new trial to determine whether he should get a sentence of life in prison or death.
Sparks flew as the justices considered how the sentencing court excluded possibly mitigating evidence.
Justices Sonia Sotomayor and Kagan quizzed government lawyer Eric Feigin about why the defense was not allowed to include evidence that Tsarnaev's brother Tamerlan may have been involved in a triple homicide two years before the bombing.
The evidence would have supported Tsarnaev's defense that he was led on by his domineering older brother.
Kagan asked Feigin to assume the evidence for the triple homicide was strong and to consider what the district court would have done under those circumstances.
'Your entire case rests on the notion that the evidence just wasn't strong enough," she said. 'How is it the job of the district court to evaluate, much less decide that question?'
But Kavanaugh took issue with that line during his questioning, suggesting the liberal justices had it wrong. The reason the evidence was omitted, he said, was that it was weak so it made no sense to ask the government attorney to make assumptions to the contr... (Read more)
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