Even before considering the evidence in the case, defense lawyers for the accused Boston Marathon bomber Dzokhar A. Tsarnaev will have to devise a legal strategy with a clear priority — to save Tsarnaev from the death penalty, according to legal observers, who described a lengthy, complex process in federal capital cases.
“There’s no easy way to defend a case like this,” said Allison Burroughs, a lawyer in the Boston law firm Nutter McClennen & Fish LLP, and a former federal prosecutor.
Tsarnaev, 19, faces the possibility of the death sentence for two charges related to the two Marathon blasts: using a weapon of mass destruction resulting in death, and malicious destruction of property by means of an explosive resulting in death. Attorney General Eric Holder will decide whether to seek the death penalty.
Legal observers said Tsarnaev and his defense team face a clear obstacle in challenging the charges: Tsarnaev is allegedly seen on video dropping one of the bombs only moments before it goes off. He also allegedly told a carjacking victim that he was the bomber, and allegedly led police on an explosive-filled car chase to Watertown, engaging them in a gunfight, and was discovered hiding in a boat after a massive manhunt that shut down Greater Boston for nearly a day.
“The first issue you have in these cases is, can you win with the guilt or innocence, and if you can’t, the elephant in the room is whether your client is going to die or not,” said Robert Sheketoff, a prominent defense lawyer who helped in the defense of Gary Lee Sampson, the only man to be sentenced to the death penalty in a federal court in Massachusetts in more than a half-century.
A federal judge in 2011 reversed a jury’s verdict for the death penalty, however, and prosecutors have appealed.
Legal observers said the initial stages of a federal death penalty case can be complex. The head public defender in Boston, Miriam Conrad, has already asked the court to appoint additional lawyers with expertise in handling capital crimes.
The defense team would then have to ask US Attorney Carmen M. Ortiz for a recommendation opposing the death penalty, which Holder could consider.
The process is secret and the defense lawyers would not know what Ortiz recommends. In seeking the death penalty, legal analysts said, prosecutors will probably note the devastation of what they have called a terror attack, while defense lawyers would note Tsarnaev’s age, his lack of a criminal record, and the apparent influence of his older brother and alleged accomplice, Tamerlan, who was killed in the manhunt. The FBI had been warned by Russian authorities that Tamerlan had been turning to “radical Islam.”
“This is going to be a highly complex case,” said David Hoose of Sasson, Turnbull, Ryan & Hoose in Northampton, who has defended several death penalty cases and is preparing for one in Rhode Island this summer.
Hoose noted that three able public defenders have been appointed, but a specialist in capital crimes probably also will be assigned to the case.
“The amount of time involved means it’s going to be someone who is going to have to dedicate a substantial portion or their entire practice to the case,” he said.
One factor in deciding whether to seek the death penalty, Burroughs said, is whether the victims agree. In general, residents of Massachusetts seem to be opposed to the death penalty.
“If Massachusetts jurors were in favor of the death penalty, there would be a state penalty,” she said.
But she and others also noted that the case could be moved, so that a fair trial could be held. However, defense lawyers may not want to gamble on a change of venue, she said: They would probably try to negotiate a plea deal to avoid the death penalty and secure a federal prison sentence. Tsarnaev could also negotiate a plea deal quickly to avoid the possibility of state charges and being sent to a state prison.
“I think the whole thing is going to be about getting him life and not death,” said Burroughs. “I don’t think anyone would go out to try and defend those videos.”