For his alleged role in the April 15, 2013, bombing that killed three people and injured more than 260 and for the fatal shooting of a Massachusetts Institute of Technology police officer, Tsarnaev was named in a
30-count indictment accusing him of: using weapons of mass destruction resulting in death; bombing a public place; conspiracy; and carjacking. In January 2014, Attorney General Eric Holder announced that the Department of Justice would seek the death penalty if Tsarnaev is convicted.
However, Massachusetts—where the trial is taking place after defense motions for a change of venue were denied—is one of
18 states that have abolished capital punishment. Thus, the case is being tried as a purely federal one; parallel state proceedings have been stayed.
But Tsarnaev still has a good chance of avoiding a death sentence.
Under the
Federal Death Penalty Act of 1994 and its 1988 predecessor, federal prosecutors have tried 229 capital cases before juries, securing 79 death sentences (for a
rate of 34 percent). To date, a mere three of those condemned to die have been executed at the
United States Penitentiary in Terre Haute, Ind.—all by lethal injection. The first to die, in June 2001, was the Oklahoma City bomber, Timothy McVeigh; the second, eight days later, was the drug kingpin Juan Raul Garza; and the last, in March 2003, was the Gulf War veteran and convicted murderer Louis Jones Jr.
Tsarnaev’s
defense team also includes some of the country’s most prominent death-penalty lawyers, including Washington and Lee University law professor David Bruck; the chief federal public defender for Massachusetts, Miriam Conrad; and the renowned Judy Clarke.
Confronted by a mountain of evidence against their client and unable to secure a plea bargain, the defense team was forced to make a crucial decision: either fight each and every one of the 30 charges tooth and nail in the hope of establishing reasonable doubt about one or two (thereby risking alienating some jurors with contentions that those jurors might later deem false), or admit Tsarnaev’s participation in the crimes and prepare the groundwork for the penalty phase of the trial. To the surprise of many observers—including, most significantly, the prosecution—the defense chose
the latter option.
“It was him,” Clarke told the jury on the first day of trial, acknowledging the horror of the bombing and conveying her deepest sympathies to her client’s victims. The real question, she suggested, is not whether Dzhokhar Tsarnaev participated in the carnage but whether he had been led astray by his overbearing sibling, Tamerlan.
From a legal standpoint, the strategy was pure brilliance.
Under the rules of “guided discretion”—the name given to the version of capital punishment that the Supreme Court’s 1976 Gregg v. Georgia decision ruled constitutional—juries must balance and weigh specified
aggravating and mitigating factors, including the charged offense and the defendant’s background and character, to determine whether a defendant, if convicted, should live or die.
In the federal system, aggravating factors might include prior felony convictions or a determination that the offense presently charged was committed in a “heinous, cruel or depraved” manner. For Tsarnaev, mitigating factors might include his young age at the time of the offense, the absence of a prior criminal record and whether he acted under duress, suffered from a severe mental or emotional disturbance or was a relatively minor participant in the charged crime.
Source: Truthdig, Bill Blum, March 17, 2015. Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam (“Prejudicial Error,” “The Last Appeal” and “The Face of Justice”) and is a contributing writer for California Lawyer magazine.
