On Jan. 5, we are set to relive the Boston Marathon bombing when Dzhokhar Tsarnaev’s trial begins. For months after that, a cast of thousands — lawyers, court officials, jurors, police officers, survivors, evidence technicians, and an army of photographers and reporters — will gather at the federal courthouse in South Boston to recreate those days in April 2013. Prosecutors will show photos and videos of the bleeding, dazed victims. The wounded survivors at the finish line and the brave families of the four who died that week — two young women, an 8-year-old boy, and an MIT police officer — will be asked to re-experience the trauma that they (and we) can never forget. And round-the-clock news reporting will rekindle the emotions the event engendered.
But the fact is, it is not inevitable: There need not be a trial at all.
According to press accounts, this case is likely to be mainly about the penalty phase, the hearing that would follow conviction, if any, when jurors will be asked whether Tsarnaev should be sentenced to death or to life in prison without the chance of parole. At that stage, attention necessarily rotates away from accusations against Tsarnaev and the suffering of his victims to Tsarnaev’s life: on his background, his upbringing, the influence of his older brother, Tamerlan — whatever “mitigating factors,’’ as the law calls them, that his lawyers will argue should spare him from the death sentence. Tsarnaev’s lawyers are duty-bound to bring every kind of mitigation before the jury; the judge is bound by law to let them do so; but should the survivors and the families of those who were murdered have to suffer through it?
If Tsarnaev is convicted of the crimes charged, he will die in prison. The only real issue is where and when. He can go to federal death row, where lawyers will bring appeals and post-conviction motions for years, where only three defendants have ever been executed, and where, as a prisoner slated for execution, he will continue to occupy the attention of the public, the judicial system, and extremists. Or he can be sentenced to spend the rest of his life in isolation, never to be heard from again, in a supermax cell in a maximum security federal prison built especially for those prisoners who are deemed the most dangerous, as has been the case with Unabomber Ted Kaczynski, 9/11 conspirator Zacharias Moussaoui, and Richard Reid, the shoebomber.
Usually it doesn’t take a months-long trial and millions of tax dollars to make that choice. In most death penalty cases, the federal government agrees to accept a guilty plea, and the defendant, on advice of counsel, agrees to waive his right to a trial, accept responsibility for his crimes, and agrees to be sentenced to life imprisonment with no chance of parole.
When that happens, the government presents in public a detailed description of the evidence it has gathered against the defendant as part of a guilty plea proceeding — but that process takes place in a day, not months. The case then goes to court for a final sentencing hearing, but this hearing is not like an ordinary trial or a contested penalty phase following conviction for a death penalty-eligible crime. The only voices heard are likely to be those of every survivor and every family member of a murdered son or daughter who wants to speak. Each can speak to the judge, to the public, and — if he or she chooses — directly to the defendant, who has no choice but to sit there and listen. The final hearing belongs to the survivors, not the lawyers—and certainly not to the defendant. There are no more battles between lawyers over technicalities, no fights over what evidence should stay hidden, and no appeals afterwards. No struggles between those of us who support the death penalty and those who oppose it. Everything is simple and final.
Why can’t the Boston Marathon bombing trial be like that?
It takes both sides — the government and the defense — to agree. The defendant has to agree to plead guilty, and the government has to agree to accept a sentence of life imprisonment without parole, like it did with the Unabomber, the Olympic Park bomber, and many others who committed acts of violence in which people were killed and injured.
This community’s response to the Marathon attacks set an example of courage and unity for the nation and the world. Now we’re reaching the last chapter. That chapter doesn’t have to be one of bitterness, division, and re-traumatization. This is our city, as David Ortiz said in the first Red Sox game after the bombing, and what happens over the next several months will have a deep and abiding impact on all of us. Wouldn’t it be better if the Justice Department and Tsarnaev’s defense attorneys got past the legal technicalities and found common ground? Let’s write a last chapter that guarantees just punishment for Tsarnaev while putting the victims and the community at the center of the legal system’s concerns.
Correction: An earlier version of this piece misstated Michael B. Keating’s law firm. He is a partner at Foley Hoag.