Twelve jurors in the trial of Dzhokhar Tsarnaev will soon face one of the most profound decisions related to civic duty, yet their task next week seems remarkably simple: Vote on the guilt of a defendant who has virtually admitted he committed the crimes. A verdict seems possible within minutes.
But legal specialists say that such a swift verdict in the first part of a two-stage death penalty trial related to the Boston Marathon bombing is unlikely. They say the jury must still review 30 criminal counts against the 21-year-old Cambridge man — including a few with complex and disputable details — and newly inspect some of the hundreds of pieces of evidence, including BB pellets, metal scraps, charred clothing, and store receipts.
Jurors have been forbidden to speak about the case, so they will also likely take time to unleash pent-up feelings and thoughts after absorbing the graphic details of Tsarnaev’s crimes that killed a total of four people and injured several hundred others, including 17 who lost limbs.
“It’s cathartic. Think about what they’ve seen and gone through,” said former Middlesex district attorney Gerard T. Leone Jr., who also previously worked as a federal prosecutor. “There’s going to be a release of emotion for them.”
Harvard Law professor Carol Steiker, who has done extensive research on capital cases, also said that even though the jury is supposed to consider only Tsarnaev’s guilt at this phase, many jurors may use some time this week to consciously — or unconsciously — process their thoughts about the next phase, when jurors will decide whether Tsarnaev should be executed for his crimes.
“I’m sure they’ll be thinking about it, even if the judge says not to do it,” she said.
Still, if there is any verdict that is well-qualified for the fast track, it’s this one. One of Tsarnaev’s defense attorneys, Judy Clarke, told jurors in her opening statement March 4, “There’s little that occurred the week of April the 15th — the bombings, the murder of Officer Collier, the carjacking, the shootout in Watertown — that we dispute.”
While telling jurors that the mastermind of the crimes was Tsarnaev’s older brother, who died during the Watertown gunfight, Clarke admitted that the brothers committed these crimes, and “Dzhokhar must be held responsible.”
Legal analysts say it is impossible to predict the length of the jury deliberations, which will begin after both sides make their closing arguments and the judge gives instructions to the jury. Many predict that these deliberations, which could start as early as Monday afternoon, probably would last at least a full day or two.
The analysts also say it is impossible to read the tea leaves based on how long the jury deliberates, though most said an extremely quick guilty verdict might suggest a highly emotional jury that wants the chance to get to the death penalty decision rapidly, a possible good sign for the prosecution.
Many legal specialists say the letter of the law may call on jurors to confine their first set of deliberations to the issue of guilt only, but, in reality, many jurors cannot help but start considering what lies ahead.
George Kendall, a New York lawyer who has handled hundreds of death penalty cases, including for the American Civil Liberties Union, said research shows that jurors frequently begin assessing death penalty issues during their first deliberation, including the ultimate question, “Is he the worst of the worst?”
If jurors jump the gun on raising death-penalty issues, overtly or not, they would only be following in the footsteps of the lawyers. During the past month, for instance, prosecutors have already informally begun introducing “aggravating” factors related to the death penalty, such as drawing out excruciating details from medical examiners about the time it took for victims to die, or the pain that would have been felt with each pellet or metal fragment striking a victim’s body.
Prosecutors gave sustained attention to the autopsy results of the youngest victim, 8-year-old Martin Richard, even putting on an FBI witness to first testify about how closely Tsarnaev stood near the boy as he set down the backpack containing the bomb.
Defense attorneys, meanwhile, have already begun their “mitigation” defense, which includes portraying the former Cambridge Rindge and Latin High School graduate as a vulnerable teen obeying a jihadist older brother. The defense has suggested that Tamerlan Tsarnaev bought many of the components of the bombs — the pressure cookers, the transmitter devices — and that his fingerprints, and not Dzhokhar Tsarnaev’s, were found on many of the pieces of evidence.
Some assertions in the government’s 30-count indictment could create dissent in the jury, possibly drawing out deliberations. For instance, though Tsarnaev’s defense team has admitted he took part in the bombings and the crimes afterward, they have also argued that he was not responsible for all of what occurred.
For instance, Tsarnaev faces charges of carjacking resulting in injury related to the nonfatal shooting of MBTA police officer Richard Donohue. But Tsarnaev’s lawyers showed that Donohue may have been hit by fellow officers who were firing at Tsarnaev when he sped off in a stolen Mercedes.
The lawyers also say that prosecutors were overreaching in connecting Donohue’s shooting to the carjacking hours earlier.
Moreover, the defense lawyers have argued that prosecutors erroneously brought charges of “bombing of a place of public use resulting in death” related to the first explosion near the Marathon finish line, outside Marathon Sports. They assert that one of the requirements of that charge, which is part of a law to curb international terrorism, is the proven killing of a person from another country. However the only fatal casualty at that location was Krystle Campbell, a US citizen.
Legal analysts with expertise in death penalty cases say the conventional wisdom would be that a longer deliberation in the guilt phase would be good for the defense, a sign that this jury is not allowing itself to be overpowered by emotions.
Albert (Buzz) Scherr, a professor at the New Hampshire School of Law who has studied death-penalty cases extensively, said the penalty phase will be like a new trial with opening statements, a pitting of aggravating versus mitigating factors, followed by closing statements and another jury deliberation.