Richard family’s heartfelt plea raises complex issues

Prosecutors face dilemma on death penalty in Marathon bombing case

The Richard family’s plea for prosecutors to end their pursuit of the death penalty for the Boston Marathon bomber struck an emotional chord across the city Friday, with even some death penalty supporters expressing admiration for the family’s courage and eloquence.

But in legal circles, the nuts-and-bolts question of whether their opposition to the death sentence could have a significant impact on the trial’s penalty phase, which begins Tuesday in US District Court, was a matter of more intense debate.

Both sides agreed the government was suddenly in an awkward position: arguing for a punishment that two of the most prominent survivors say would prolong their suffering by forcing them to relive the trauma of that day through years of appeals.

“It puts the government in a real difficult bind,” said Michael Kendall, a former federal prosecutor. “This is the voice the jury listens to most, the Richard family. . . . This family has been so gracious and dignified in all their sorrow and pain, I think everyone is going to pay respect to what they think.”

Nevertheless, two other former federal prosecutors said the statement, published Friday in the Globe, would not persuade prosecutors to drop the death penalty in exchange for life in prison, noting that other survivors have said they want Dzhokhar Tsarnaev sentenced to death.

Kevin Corcoran, whose wife, Celeste, lost her legs, and whose daughter, Sydney, was seriously injured at the Marathon finish line in 2013, said he disagreed with the notion that sentencing Tsarnaev to life in prison would spare Bill and Denise Richard and their children more pain.

“If he’s dead, no matter how long it takes, end of story,” Kevin Corcoran said. “We don’t want him to be able to communicate and possibly influence anyone. In 20 years, someone might interview him. He could write a book, etc. Then Bill’s kids will have to deal with that.”

Karen Odom, whose husband, John, had arteries in his legs severed in the attack, said she and her husband agree with the Richards that life in prison would be more appropriate, but offered their own reasons.

“We want to see him rot in prison the rest of his life,” she said. “We’re not against the death penalty; we just think the death penalty is too good for him. We’d rather see him in jail forever.”

Michael J. Sullivan, a former US attorney in Boston, said that while the government could still enter into an agreement with Tsarnaev sending him to prison for life, it would be “extremely unusual and unlikely.”

Donald K. Stern, another former US attorney, said prosecutors do not leave it up to victims to decide whether the death penalty is appropriate.

“That is a burden and responsibility we don’t place on the victims’ families,” he said. “We leave it to the system of justice and, ultimately, to the jury.”

Several other lawyers and death penalty experts said, however, that the Richards’ statement raises the possibility they may not be among the victims called by the government to testify in the penalty phase.

Kevin Corcoran, with wife Celeste and their daughter, Sydney, both injured in the bombings, wants the death penalty: “If he’s dead, no matter how long it takes, end of story.”John Tlumacki/Globe Staff/File

If Bill or Denise Richard do not speak in court, some defense lawyers said, it could send a message to the jury, given the family’s prominence as symbols of the pain caused by the Tsarnaev brothers and of Boston’s resilience after the bombing.

“The government may well be put in a difficult position here,” said David Hoose, a defense attorney who specializes in federal death penalty cases. “I think if they didn’t call them — one of them — the jury would be wondering: why not?”

Tsarnaev’s lawyers may also try to introduce the parents’ statement in court, several lawyers said, although it would be difficult. “I’m sure the government lawyers are scrambling to make sure this does not get in front of the jury,” Hoose said.

Bill Richard testified during the guilt phase of the trial, bringing many in the courtroom to tears as he described leaving 8-year-old son Martin, aware that the boy was dying, with his wife so that he could help their 7-year-old daughter, Jane, who had lost a leg. Another son, Henry, stood nearby, in shock from the chaos.

In their essay published on the front page of Friday’s Globe, Bill and Denise Richard said they would support taking the death penalty “off the table” in exchange for Tsarnaev spending the rest of his life in prison with no possibility of release, and waiving his appeal rights.

They wrote that the “continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives.”

“As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours,” they wrote. “The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.”

Phyllis Goldfarb, a George Washington University law professor who has trained defense lawyers in federal death penalty cases, said the prosecution will have to contend with the Richards’ opposition when they ask the jury for the death sentence.

“It’s not at all uncommon to invoke the needs of the families and to ‘do it for these victims.’ And when you have people who have suffered so much saying ‘that’s not what we want you to do for us,’ it has to affect the way you think,” Goldfarb said.

“That family has lost so much, to actually do something now they don’t want, you have to feel like you have a deep justification for it.”

Prosecutors have said in court filings that they are seeking the death penalty based on Tsarnaev’s “heinous, cruel, and depraved manner” in carrying out the attack with his brother, Tamerlan, who was killed several days after the bombing.

In a statement Thursday, US Attorney Carmen M. Ortiz said she was aware of the Richards’ sentiments and cares deeply about their views and the views of other victims, but she could not comment on their essay.

“Many have strong views about the best way to proceed,” Ortiz said. “Those views have been heard and have played a role — and continue to play a role — in the Department of Justice’s handling of this case.”

Boston Mayor Martin J. Walsh said Friday that he is withholding his views on the death penalty until after the trial, but was moved by the Richard family’s resolve.

“I support Bill and Denise wholeheartedly,” he said. “And I thank them for their courage for putting that in writing, putting their thoughts into it. I know it was an incredibly hard decision. . . . Every single word was a word they thought through. So I commend them for that.”

Marc Fucarile, who lost much of his right leg after the second blast, said he has gone back and forth on the issue.

“I think there are pros and cons about both a life sentence and a death sentence,” he said. “My thoughts change constantly. They really do.”

But he said he respected the Richards’ viewpoint. “I admire their strength,” he said. “I love that family, and I have the utmost respect for them. They did what they had to do.”