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opinion | Harvey Silverglate

After the Tsarnaev verdict, the real drama begins

Dzhokhar Tsarnaev (center) sat between defense attorneys Miriam Conrad (left) and Judy Clarke in federal court last month.Jane Flavell Collins/AP/file

The upcoming sentencing phase of the Boston Marathon bombing trial will be much like the Marathon itself: long, grueling, and immensely consequential. It did not take much ability to predict that the jury would convict Dzhokhar Tsarnaev of various charges growing out of the bombing. Thus the real drama will be in the jury’s forthcoming decision as to whether to sentence the defendant to life in prison or death.

Had Tsarnaev been tried in state court, he would by now have begun serving a sentence of life without parole in the Commonwealth’s maximum security prison; the entire sentencing phase would be unnecessary. But since the feds grabbed custody of Tsarnaev and, under the Constitution, have authority superior to the state’s jurisdiction, the death penalty phase now goes forward.

The trial did present a considerable amount of evidence that appeared more relevant to the penalty than to the seemingly cut-and-dry question of guilt — the prosecutors’ presentation as to the extent of the blood and gore produced by the ghastly attack, for example, and Tsarnaev’s lawyers’ efforts to show the defendant’s subservience to his murderous older brother — but now the prosecutors will focus even more on the theme of the callousness of the attack, the depth of suffering wreaked, and the defendant’s own hateful and violent obsessions. At the same time, the defense will doubtless expound on the defendant’s deteriorating life in the final months leading up to the Marathon, and his falling increasingly under the influence of his older, radicalized brother, Tamerlan. While Dzhokhar’s relationship with his brother did not amount to a defense of innocence, the defense team is hoping it will be enough for the jury to spare his life.

The sentencing phase will be much more of a challenge to the defense than to the prosecution team. For one thing, the jury selection procedure implemented by Judge George O’Toole eliminated any citizens who harbor conscientious objections to the death penalty in all circumstances. Thus, we know that the members of the jury panel are prepared to vote for death, even if they swore to the judge that they would keep an open mind on both the innocence issue and the penalty. A so-called “death-qualified jury” does not necessarily vote for the death penalty, of course, but experienced trial lawyers and careful observers of the system realize that such a jury may well be not only willing and able, but also somewhat inclined to vote for execution. Being willing to impose the death penalty is the first logical step to voting to impose it, so the dice are somewhat loaded toward the prosecutors’ side. Tsarnaev’s lawyers have a steep uphill climb.


Still, the law does provide the defense with one crucial advantage — just as the jury has to vote unanimously in order to convict for this (as for any) crime, the government must obtain the votes of all 12 jurors for death; a vote of 11-1 for the ultimate penalty assures a life sentence. This is why this second act of this trial will produce so much drama; there is an element of uncertainty of outcome that didn’t exist in the guilt-or-innocence phase.


Tsarnaev’s sentencing is crucially important to federal prosecutors; indeed, the option of the death penalty may well have been the only real reason that the feds usurped the state’s authority and why he is being tried in federal rather than state court. The feds overstepped in asserting their superior claim to jurisdiction in this case in anticipation of this very moment, and Massachusetts citizens should pay close attention as prosecutors make their case for execution. When our state outlawed the death penalty in 1984, did we really intend for that prohibition to be conditional? Tsarnaev’s crimes indeed are particularly heinous, but we cannot let emotions cloud judgment. Regardless of the jury’s sentencing decision, this trial has starkly illustrated a decline in Massachusetts’ state sovereignty in deciding — literally — life-or-death matters.


Harvey Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent.’’