With Tsarnaev penalty phase set, outcome uncertain

Capital sentences rarely imposed in US cases, but terrorism sets Marathon bombings apart

Demonstrators were seen outside federal court at the start of the first day of the penalty phase in the Boston Marathon bombing trial.
John Tlumacki/Globe Staff
Demonstrators were seen outside federal court at the start of the first day of the penalty phase in the Boston Marathon bombing trial.

The jury that convicted Dzhokhar Tsarnaev on all counts this month will reconvene in federal court Tuesday to begin considering whether he should be sentenced to death, a punishment that is supported only one out of three times that it is brought before jurors, records show.

Even if jurors vote unanimously to impose the death penalty on the 21-year-old Boston Marathon bomber, his execution would probably be held up for years. Most federal convicts given capital punishment have been on death row for at least a decade due to appeals, records show.

But legal specialists say these statistics, while showing the daunting task facing prosecutors, may have little relevance in Tsarnaev’s trial because his case is singular in many ways. Few federal death penalty cases involve the death and maimings at celebrated public events like the Marathon.


Tsarnaev’s motives also relate to Al Qaeda-inspired terrorism, which hits at one of the most feared enemies of the American public.

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Only three people have been executed since federal death penalty laws were enacted in 1988, and one of them, Timothy McVeigh, was convicted of crimes that share some similarities to Tsarnaev’s. As part of his anger at the US government, McVeigh carried out the 1995 Oklahoma City terrorist bombing of a federal building that killed 168, including 19 children.

The opening statements of the penalty phase come at a time of heightened emotions in Boston, just a day after the running of the Marathon and within a week of the anniversary of the 2013 bombings.

“You put 12 people in a room, and God knows what impacts them,” said David Hoose, a lawyer with the Northampton firm Sasson Turnbull Ryan & Hoose. “It’s just impossible to know the inner-workings of a human mind after sitting through something like this.”

Emotions in the Tsarnaev case intensified in the past week, as the trial pivoted to the penalty phase and some high-profile victims called on the government to halt its pursuit of the death penalty, even as some other victims expressed support for capital punishment.


Late last week, the parents of Martin Richard, the 8-year-old who died in the attack, said they believe Tsarnaev should receive life in prison without parole. They said pursuing the death penalty “could bring years of appeals and prolong reliving the most painful day of our lives.” A newlywed couple, Jessica Kensky and Patrick Downes, each of whom lost a leg in the attack, also spoke up this week against the death penalty.

Meanwhile, Kevin Corcoran, whose wife lost both legs and whose daughter nearly bled to death, spoke out in favor of capital punishment for Tsarnaev. Liz Norden, whose two sons each lost a leg, has also been consistently in favor of the death penalty for Tsarnaev, given the gravity of his crimes.

The federal government can seek the death penalty for about 40 categories of crimes, and the determination is made by the US attorney general.

Carmen Ortiz, the US attorney in Boston, has said she supported the decision by US Attorney General Eric Holder to seek the death penalty for Tsarnaev, and has said she did so after hearing the views of many victims.

In 2011, Holder revamped the process for seeking the death penalty, which includes input from victims, and takes into consideration the nature of the crime, as well as the victims’ and the public’s interest in capital punishment. Holder, who has personally spoken out against the death penalty and supports a moratorium on executions, has authorized capital punishment more than 30 times since taking office in 2009.


Since modern death penalty laws went into effect in the federal court system in 1988, a jury has decided a defendant’s fate 232 times, and chosen a death sentence in 79 cases – or 34 percent of the time, according to data as of fall 2014 from the Federal Death Penalty Resource Counsel.

In most federal cases the sentences remain under appeal, a new trial was ordered, or the defendants died in prison awaiting appeals. In some cases, government prosecutors agreed later to seek a life sentence.

Aside from McVeigh, the other two executions were of Louis Jones, a Persian Gulf war veteran who was put to death in 2003 for the abduction and murder of a young female soldier; and Juan Raul Garza, who was executed in 2001 for the murders of three drug traffickers in Texas.

Public views on Tsarnaev’s punishment remain deeply divided, largely because Massachusetts has a long tradition of opposing the death penalty. No execution has taken place in this state for nearly 70 years, and the state death penalty was abolished nearly three decades ago.

Still, because the United States exacted new laws in the late 1980s, there have been two federal death penalty cases in this state other than Tsarnaev’s.

In 2001, a federal jury in Springfield refused to hand out a death sentence for Kristen Gilbert, a veterans’ nurse who killed patients with lethal injection. Two years later, in 2003, a jury handed out a death sentence for Gary Lee Sampson, a drifter who carjacked and killed three people. That verdict was overturned after an appeal, and Sampson is slated to go before a jury again in September.

In Tsarnaev’s case, his lawyers have acknowledged that he participated in the bombings as well as the fatal shooting of an MIT police officer, but they called his older brother, Tamerlan, the mastermind. Tamerlan was killed during a violent confrontation with police in Watertown while attempting to flee.

The lawyers’ focused on Tamerlan Tsarnaev’s guilt and influence throughout Dzhokhar Tsarnaev’s trial, and they plan to argue during the sentencing phase that the younger brother’s life should be spared because of his difficult childhood and submission to his older brother, among other reasons. The sentencing phase is expected to last about four weeks.

A jury would have to be unanimous in choosing death, and a judge would hand out a life sentence if the jury were unable to reach a unanimous decision.

Eric M. Freedman, a law professor at Hofstra University School of Law who studies capital punishment cases, said there is no winning formula, for prosecutors or defense lawyers, in succeeding in a capital case, noting the inconsistency of jury verdicts nationwide.

But, he said, a review of hundreds of cases decided by state and federal juries shows that lawyers have been successful when they are able to present a consistent storyline to make their case, no matter the storyline or the crime. “What the defense lawyers want to do is make sure they present the life story of the person, rather than isolating any particular event, particularly the crime itself,” Freedman said, adding that jurors need a “framework.”

Milton J. Valencia can be reached at mvalencia@
. Follow him on Twitter @miltonvalencia.