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July 9, 2013

Will a jury get a chance to embrace or reject death penalty in Boston bombing case?

The question in the title of this post is prompted by this lengthy new AP article headlined "Seeking death penalty in Boston case? A long road."  The article, inter alia, suggests reasons why a federal capital jury might not return a death sentence in the Boston bombing prosecution:

In the past 4½ years, the Justice Department has sought executions in several instances. But, in an indication of how protracted the process can be, none of the administration's cases has yet put anyone on death row.

Massachusetts abolished its own death penalty in 1984, but Tsarnaev is being prosecuted in federal court. Since the federal death penalty was reinstated in 1988, only three people, including McVeigh, have been executed. Others have pending appeals.

In cases where federal juries have chosen between life and death, they have imposed twice as many life sentences as death sentences — 144 to 73 — according to the Federal Death Penalty Resource Counsel Project, a two-decade-old group created by the Administrative Office of the United States Courts.

The jury pool for a case against Tsarnaev would come from a state that has rejected repeated efforts to reinstate the death penalty. However, a former U.S. attorney in Massachusetts, Michael J. Sullivan, says viewing the state as opposed to the penalty is not entirely correct. Voters have supported reinstating the death penalty in non-binding referenda. And when Sullivan was U.S. attorney in Boston, his team of prosecutors won a death penalty verdict. That case is on appeal....

Before the Justice Department decides to seek the death penalty, a case moves through three tiers of review by federal prosecutors. "There's going to be a lot of push in that U.S. attorney's office in Boston to seek the death penalty in this case," predicts former prosecutor Johnny Sutton, who chaired a panel of 17 U.S. attorneys advising the attorney general on law enforcement issues during the George W. Bush administration. Sutton was U.S. attorney for the Western District of Texas from 2001 to 2009.

On June 27, Carmen Ortiz, the U.S. attorney in Boston, said, "We will do everything that we can to pursue justice." Her comments followed the handing up of a 30-count indictment against Tsarnaev that included 17 charges carrying the death penalty or life imprisonment. In Washington, federal prosecutors in a Capital Case Unit conduct their own analysis of death penalty cases. They advise the Attorney General's Review Committee on Capital Cases, which makes recommendations to the attorney general. Defense lawyers can weigh in, too.

Prosecutors seem to have strong evidence against Tsarnaev, but even if jurors agree that he was behind the explosions that killed three and injured more than 260, execution is far from guaranteed. After a conviction, jurors must again be unanimous in their decision to impose the death penalty. In the terrorism case against Sept. 11 conspirator Zacarias Moussaoui, one juror declined to vote in favor of the death penalty, resulting in a life sentence.

In the Tsarnaev case, the decision could come down to whether the government can prove the attacks showed substantial planning and premeditation. The indictment against Tsarnaev contains extensive detail about his actions the day of the bombings and after, but contains a relatively small amount of information about prior weeks and months.

If Dzhokhar Tsarnaev's now-dead older brother, Tamerlan, was the planner and Dzhokhar played a lesser role, Dzhokhar's legal team could use that argument to his benefit. Another factor in Dzhokhar's favor: He had no prior criminal record. Tsarnaev also could benefit from what federal law calls "other factors," — anything in the defendant's background, record or character that weighs against a death sentence....

Two widely publicized domestic terrorism cases from the past — the Olympic Park bomber and the Unabomber — ended when defense attorney Judy Clarke negotiated plea agreements with the government.  Clarke now represents Tsarnaev.

As the last paragraph of this excerpt highlights, other notorious domestic terrorists have escaped not only a federal death sentence, but also a federal death trial via plea agreements.  I have been predicting for some time that a plea agreement with an LWOP sentence is the most likely "end game" for the Dzhokhar Tsarnaev prosecution.  And yet, I cannot help but wonder if the Boston victims might press for federal prosecutors to reject any plea offer and at least give a federal jury a chance to consider whether a death sentence is appropriate for this high-profile crime.

Some recent prior posts:

July 9, 2013 at 12:56 PM | Permalink


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There is an assumption in the article that is worthy of being noted -- that the jury pool will come from Massachusetts. In a typical case of this type, the defendant seeks a change of venue based on pre-trial publicity, etc., and the government opposes the change of venue on the theory that any problem venirepersons can be discovered and eliminated in voir dire.

Given the feeling that the total pool may begin with a majority reluctant to inpose the death penalty (whether or not that will still be true after death-qualification is another issue), will that change how the two sides approach the issue of whether a change of venue is appropriate?

Posted by: tmm | Jul 10, 2013 10:12:58 AM

The change of venue in such cases might be to change the county or such (e.g., a crime in Queens could be tried upstate), but especially given the constitutional provision as to venue, how often do they move to a different state?

And, nearby states include non-death penalty states like NY and VT. Your other point is an interesting question, and one thing there would be to consider support in different counties too.

Posted by: Joe | Jul 10, 2013 2:32:04 PM

My memory is that they moved McVeigh to Colorado, but given the size of federal districts, changes of venue are rare.

Federal Rule of Criminal Procedure, Rule 21 permits a change of venue upon motion by a defendant. Since the motion has to be filed by the defendant, presumably that would constitute a valid and knowing waiver of the defendant's right to be tried in the state and district in which the defense occured. Nothing in the rule necessarily requires that the case be moved to a neighboring state. If it were moved to say New York, there would be a big difference between the jury pool in the Southern District (the Bronx and Manhattan) and the Western District (Buffalo and Rochester).

Posted by: tmm | Jul 10, 2013 5:18:57 PM

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