Jonathan Wiggs/Globe Staff
Even though a jury has decided to sentence Dzhokhar Tsarnaev to death, his case is not yet over. Though the jury’s decision is binding, legally, it remains a recommendation until he is formally sentenced.
US District Judge George A. O’Toole Jr. must officially hand out the death penalty, and he will do that at a sentencing hearing at a later date.
“The law makes clear that the judge must follow the recommendation,” of the jury, said David Hoose, a Northampton lawyer who specializes in death penalty trials.
The judge will allow the lawyers time to resolve any last-minute legal issues. Court officials must also prepare a pre-sentence report that includes the details of his caseand life history, and any other matters that could be addressed at his sentencing, such as the counts that were not considered in the death penalty phase of the trial. Tsarnaev was also convicted of 13 charges that did not carry the possibility of the death penalty, so the judge will have to formally determine a sentence for those crimes.
The defense and prosecution will be allowed to make arguments and comment on the anticipated sentence. Tsarnaev’s victims will also have an opportunity to confront him and give victim impact statements. And Tsarnaev, if he chooses, may address the court in what is known as an allocution – or an opportunity to offer an apology, or remorse, or explain his motivations.
The judge could also make a statement when handing out the sentence.
Tsarnaev has been held at the federal prison at Fort Devens in Ayer. Once he is sentenced, Tsarnaev will officially be transferred from the custody of the US Marshals Service to the US Bureau of Prisons, which will review his case, his pre-sentence report and other factors in determining where to place him. That process could take from days to weeks, and it is likely that Tsarnaev will remain at a local holding facility until then. But it is possible that a decision on his placement has been made.
“I think the Bureau of Prisons has made this decision already, and I think it will happen very quickly,” said George Kendall, a New York lawyer who has handled hundreds of death penalty cases. “As soon as there is a formal sentence, off he goes.”
Because he was sentenced to death, Tsarnaev will likely be brought to the federal prison at Terre Haute, Ind., where the Bureau of Prisons holds inmates on Death Row.
Because Tsarnaev was sentenced to death, he will likely engage in a lengthy appeals process that will mirror the complexity of his trial. He will likely appeal several of O’Toole’s decisions in the case, including the judge’s refusal to relocate the trial to a court outside Boston.
The US Court of Appeals for the First Circuit in Boston will review those appeals, which could also make their way to the US Supreme Court.
If Tsarnaev’s conviction and sentence are upheld, he could also engage in a new round of appeals to raise fundamental issues unrelated to the judge’s decisions, such as the constitutionality of the death penalty, or his right to adequate legal counsel and a fair trial.
The appeals process could take more than a decade.
“Just like the trial is a comprehensive event, so is the appeal,” Kendall said. “This is a very extensive record.”
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