WASHINGTON (CBS/AP) — The Justice Department asked the Supreme Court Wednesday to reinstate the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Lawyers for the Biden administration argued in a 90-minute hearing that a jury had no need to examine evidence that the government itself relied on at an earlier phase of the case.

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Tsarnaev’s guilt is not at issue in the case before the justices, just whether he should be sentenced to life in prison, or death.

The main focus Wednesday was on evidence that Tsarnaev’s lawyers wanted the jury to hear that supported their argument that his older brother, Tamerlan, was the mastermind of the attack and that the impressionable younger brother was somehow less responsible. The evidence implicated Tamerlan Tsarnaev in a triple killing in Waltham on Sept. 11, 2011.

The federal appeals court in Boston ruled last year that the trial judge made a mistake in excluding the Waltham evidence and threw out Tsarnaev’s death sentence. That was the subject of much further scrutiny by the justices Wednesday.

“Part of the problem is that the district court withheld information and so the defense attorney could not proffer everything at once because it didn’t have full knowledge of what was there. Now that they do, they can show us A – how pertinent that information was, and B – how it could have dovetailed easily with what they already had. You can’t put the cart before the horse here and the cart before the horse was the denial of discovery,” Justice Elena Kagan said.

“Clearly there was a meeting of the minds on some level to find them guilty of the conspiracy, but was that meeting of the minds an imbalanced meeting of the minds? Was it that his older brother Tamerlan was so powerful, so all influencing on him, that it caused him to do things he may not have otherwise done?” said WBZ-TV legal analyst Jennifer Roman.

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There’s also a second issue in the case: whether the trial judge did enough to question jurors about their exposure to extensive news coverage of the bombing.

The Trump administration, which carried out 13 executions in its last six months, quickly appealed the appeals court decision. When the new administration didn’t indicate any change of view, the Supreme Court agreed to review the case.

Tsarnaev’s lawyers have never contested that he and his brother set off the two bombs near the marathon finish line on April 15, 2013. Lingzi Lu, a 23-year-old Boston University graduate student from China; Krystle Campbell, a 29-year-old restaurant manager from Medford; and 8-year-old Martin Richard, who had gone to watch the marathon with his family, were killed. More than 260 people were injured.

Martin Richard, Lingzi Lu, Krystle Campbell, Sean Collier and Dennis Simmonds. (WBZ-TV)

During a four-day manhunt for the bombers, Massachusetts Institute of Technology Police Officer Sean Collier was shot dead in his car. Boston Police Officer Dennis Simmonds also died a year after he was wounded in a confrontation with the bombers.

The Supreme Court is not expected to rule on the case until sometime next year. If they rule in Tsarnaev’s favor, the government would have to decide whether to move forward with a new sentencing trial to attempt to get a new death sentence.

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CBSBoston.com Staff