The Supreme Court on Wednesday will consider whether the death penalty should be reinstated for Boston Marathon bomber Dzhokhar Tsarnaev.

       The court will review a decision by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit. In July, the panel agreed with Tsarnaev’s lawyers that the judge overseeing his trial did not adequately question potential jurors for bias in the case, which received massive publicity.

       It also said some evidence was improperly withheld that might have indicated Tsarnaev’s older brother, Tamerlan, was more culpable for the bombing. Tamerlan Tsarnaev was killed as police closed in on the brothers days after the April, 2013 attack.

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       The case created a dilemma for the Justice Department, which had asked the Supreme Court to reverse the appeals court decision when Donald Trump was president. President Biden opposes the death penalty.

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       But the administration did not change its position after the court accepted the case.

       “The district court’s fair and careful management” of Tsarnaev’s trial resulted in “an impartial jury that delivered a nuanced verdict recommending capital punishment only for the murders that respondent personally committed,” Acting Solicitor General Brian Fletcher wrote in a brief to the court.

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       The brief said Tsarnaev’s criticisms of “two out of the hundreds of separate judgment calls required from the court over the course of this complex case are unwarranted.”

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       Dzhokhar Tsarnaev, now 28, is being held in a federal prison in Colorado. He admitted his role in the bombing, which killed three people and wounded hundreds of others at the finish line of the annual race. At issue is the appeals court decision that he is entitled to a new penalty-phase trial to determine whether he deserves execution.

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       The appeals court in July ruled that part of the trial could have been tainted by jurors who had already made up their minds because of the publicity surrounding the case.

       “Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution,” Judge O. Rogeriee Thompson wrote in the appeals court decision.

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       “A core promise of our criminal justice system,” she added, “is that even the very worst among us deserves to be fairly tried and lawfully punished.”

       The panel also said Judge George A. O’Toole Jr. made a mistake by not allowing jurors to know that Tamerlan Tsarnaev had been tied to a 2011 triple slaying in Waltham, Mass. Dzhokhar Tsarnaev’s lawyers argued that could convince jurors that his brother was more of the leader in the marathon attack.

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       Tsarnaev’s attorney at the Supreme Court, Ginger D. Anders, acknowledged that the bombings “were a grievous and shocking act of terrorism.”

       But she said such cases are when the legal system provides “indispensable safeguards” to ensure a fair trail and whether death is appropriate.

       In this case, “those safeguards failed when they were needed most, and Dzhokhar was sentenced to death in a proceeding compromised by two serious errors,” she wrote.

       The case is U.S. v. Tsarnaev.