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After the conviction of Tsarnaev, what happens next?

Standards differ in penalty phase; jury will decide

(Boston Globe) Boston Marathon bombing suspect Dzhokhar Tsarnaev is found guilty on all 30 counts he was charged with, including 17 that carried the possibility of a death sentence.
(Boston Globe) Boston Marathon bombing suspect Dzhokhar Tsarnaev is found guilty on all 30 counts he was charged with, including 17 that carried the possibility of a death sentence.

After hearing from 95 witnesses during 16 days of testimony, a jury has convicted Dzhokhar Tsarnaev in the Boston Marathon bombings, but that does not mean his case has ended. Federal prosecutors are seeking the death penalty, and federal law recommends that a jury make that decision. Here’s how that will happen.

What happens next?

US District Judge George A. O’Toole Jr. will hold a second phase of the trial, in which prosecutors and defense lawyers will give opening statements, present witnesses and evidence, and give closing arguments supporting their arguments about what penalty Tsarnaev deserves. Prosecution witnesses could include Marathon victims, while the defense is likely to call experts to talk about Tsarnaev’s troubled upbringing and family life, meant to convince the jury that their client deserves some sympathy and is not deserving of a death sentence.


Why are prosecutors seeking the death penalty?

Many of the charges Tsarnaev was convicted of are capital crimes, and US Attorney General Eric Holder filed a Notice of Intent in January 2014 citing what are known as “aggravating” factors that call for the death penalty: They include Tsarnaev’s intentional killing and infliction of injuries, the grave risk of death to more than one person, the substantial planning and premeditation in the crimes, and the “heinous, cruel, and depraved manner” of carrying out the crimes. The prosecutors also cited other factors that they are not required by law to prove: His encouragement of others to carry out similar crimes, the extent of the impact on the victims, and his lack of remorse.

What do the defense lawyers say?

While admitting that Tsarnaev took part in the crimes, they say the death penalty should be reserved for the worst of the worst, and they have sought to show that his older brother, Tamerlan Tsarnaev, was the mastermind. He was killed during a confrontation with police in Watertown. Defense lawyers say he was the one who harbored extremist views and he radicalized his younger brother and pressured him into taking part in the attacks. The defense may also cite what are known as “mitigating” factors: Tsarnaev has no prior criminal record; he was a lesser participant; and they may cite his upbringing as the youngest of four children in an immigrant family facing a difficult adjustment to American life.


How will jurors decide?

The federal judicial system has established a process for jurors to weigh prosecutors’ aggravating factors against defense attorneys’ mitigating factors. First, before determining whether Tsarnaev should be sentenced to death, they must determine that he knowingly committed the acts, and that prosecutors had proven at least one aggravating factor. Then, the jurors can weigh aggravating factors against mitigating factors. While judges instruct juries differently, juries are generally told that they are not required to weigh the total count of aggravating factors against mitigating factors, but that they should look at the evidence as a whole in coming to a conclusion.

According to Albert “Buzz” Scherr, a University of New Hampshire law professor who has done extensive work on death penalty issues, the process is meant “to make sure the jury doesn’t send [the defendant] to death based on emotion.”

Jurors are told they are not required to sentence anyone to death. Scherr called this stage the “battle of images” for jurors, a chance to weigh the prosecution’s assertion that Tsarnaev is the “worst of the worst” and the defense’s argument that Tsarnaev had difficult family circumstances and deserves life in prison without parole.”


Is the penalty phase a real trial?

It is a trial in the sense that prosecutors and defense lawyers can introduce witnesses and evidence to support their arguments, and jurors will make a decision based on that presentation. The prosecutors and lawyers are not bound by the federal rules of evidence that dictate normal criminal trials, and they are allowed broad discretion in presenting their argument. A judge can bar evidence only if he or she finds it is unfairly prejudicial, confuses an issue, or is misleading. Also, jurors must find that prosecutors proved aggravating factors, “beyond a reasonable doubt” — the standard required for criminal trials. However, they need only find that mitigating factors are proven by a “preponderance of the evidence” — a lesser standard.

“It’s going to be important for the jury to be clearly told and to understand that for a fact to be a mitigating factor it only needs to be more likely true than not,” said Robert Dunham, of the Death Penalty Information Center.

How will the jury deliberate?

George Kendall, a New York lawyer who has handled hundreds of death penalty cases, including for the American Civil Liberties Union, said in most death penalty phases, jurors are each given a piece of paper, and each can check off different aggravating and mitigating factors. But jurors don’t have to reach consensus on the types of aggravating and mitigating factors. What matters is their vote on the death penalty or life in prison. For the death penalty, the jury must reach a unanimous decision. If a jury is not unanimous in that decision, the judge will hand out a sentence of life imprisonment.


Will the judge pick a new jury?

Federal rules recommend that a jury hand out a death sentence, rather than a judge, and jurors are chosen after a lengthy screening process to make sure they are willing to sentence a defendant to death if they find it is warranted. While a new jury can be chosen for the penalty phase, in most cases the jury that determines a defendant’s guilt is the same jury that hands out a sentence.

Judge George A. O’Toole empaneled six alternates for the trial’s guilt phase, and those alternates will continue to serve in the sentencing phase.

“That’s exactly the reason you have alternates and those alternates have been qualified to sit in both phases,” said Eric M. Freedman, a Hofstra University School of Law professor.

Can a judge change the jury’s decision?

No. The judge must hand out the sentence the jury chooses. He will dismiss the jury once a verdict is rendered and resolve pre-sentencing legal issues and arguments, and then will hold a sentencing hearing.

Are death sentences common?

The federal government has executed three people since modern death penalty laws first went into effect in 1988. Another 59 people have been sentenced to death but their cases are on some form of appeal. Some died while their cases were on appeal.

The federal government has sought the death penalty for 495 defendants, though 231 of them avoided trial, either by plea negotiation or because the government dropped its request for the death penalty, or the judge barred capital punishment in the case, according to the Federal Death Penalty Resource Counsel.


In cases in which a jury was asked to decide between life and death, 153 life sentences were imposed, at a rate of 66 percent, and chose death 79 times, at a rate of 34 percent.

How is the death penalty carried out?

The US Bureau of Prisons has established regulations for carrying out the death penalty. The bureau has designated its Federal Correctional Complex in Terre Haute, Ind., as its place of execution. The execution process is carried out by a US marshal designated by the director of the US Marshals Service, assisted by the warden of the prison. Executions are by intravenous injection of a lethal substance or substances determined by the director of the Bureau of Prisons.