OPINION | NANCY GERTNER
The first phase of the trial of Dzhokhar Tsarnaev was supposed to be about liability. In reality, it felt like a penalty hearing, albeit in slow motion. Now that Tsarnaev has been found guilty for his role in the 2013 Boston Marathon bombing, the jury will deal directly with the only critical question — should Tsarnaev get life in prison or the death penalty? But, even at this late stage, the real question is: Why was this trial necessary?
Why did the US attorney general insist on the death penalty here, while calling for its moratorium elsewhere? Why did the US government press for the death penalty when the defendant would have pled to life without parole? That was, after all, the defense message from the outset with the opening statement of Judy Clarke, Tsarnaev’s lawyer — “it was him.” “We will not sidestep Tsarnaev’s responsibility for his actions,” she said, actions which were “incomprehensible” and “inexcusable.”
My “aha” moment came with a Sunday’s Globe editorial. After the bombing, some politicians were screaming that Tsarnaev should be tried before a military tribunal in Guantanamo. The Globe editorial rightly acknowledged the significance of showing that the civilian justice system is fully capable of addressing heinous crimes, just as the federal court in New York did with Zacarias Moussaoui, the 20th 9/11 hijacker.
Perhaps Attorney General Eric Holder wanted to show that the government does not need Guantanamo or military tribunals to secure the death penalty for those accused of terrorism. Perhaps he believed that any lesser punishment would expose the administration to criticism about the softness of the civilian system and reopen the floodgates to military tribunals. But that political calculation hardly justifies what the government seeks here, its costs, its emotional toll on the victims and on the city, the likelihood of extensive appeals, even the risk of error, particularly when there was another alternative — a plea of guilty in exchange for life without parole.
Following such a plea, the victims would have spoken at length at a sentencing proceeding, directly confronting Tsarnaev. Their narratives would have been no less compelling than what we have heard the past few weeks. The focus would have been on them, and only them. And once life without parole was imposed, the case would have been over, completely and totally. There would have been no appeals.
The government has already showed the brutal and gory details of the crime over and over again in the liability phase, what the law terms the “aggravating factors” necessary to find for the death penalty — Tsarnaev’s intent, that the crime was heinous, depraved and cruel, that there were multiple victims, including the most vulnerable one of all, 8-year-old Martin Richard. Thankfully, the government does not have to repeat that testimony in the penalty phase.
Now the defense will focus on “mitigating factors.” The defense will likely address the influence of Dzhokhar’s older brother, Tamerlan, as well as Dzhokhar’s age at the time of the bombing. He was 19, just barely past the date at which the law acknowledges an adolescent’s immature brain. But while the law recognizes 18 as the cutoff point for the death penalty, neuroscience suggests that the period of relative brain immaturity stretches into the early 20s.
In some ways, this phase may be more difficult than the first phase. At this point, the focus necessarily shifts to Tsarnaev and away from the victims. More troubling, the jury’s life-and-death decision could be taking place at the same time as the second anniversary of the bombing. Boston is gearing up for the Marathon, and jurors will be passing the banners, the familiar sights of Marathon Monday, coupled with the city’s commemoration of the tragedy. Jurors are supposed to tune out the press. While it is difficult in a high-profile case, here their efforts will have to be extraordinary. And any juror’s exposure to the emotional and intense coverage could put the entire trial at risk on appeal.
The choices for the government should not be a death finding in a civilian court, or a death finding in a military tribunal, lethal injection or a firing squad. Countless others accused of heinous crimes have pled guilty to a life without parole. There was another way. There still is.
Nancy Gertner is a retired federal judge and a professor at Harvard Law School.
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