Bill Newman: Between the lines on marathon bombing case’s death penalty option

Last modified: Friday, April 03, 2015

NORTHAMPTON — The guilt-innocence phase, the first part, of the trial of Boston Marathon bomber Dzhokhar Tsarnaev, is drawing to a close. Final arguments are scheduled for Monday.

After Monday’s arguments, Tsarnaev will come face to face with the possibility of being executed by the United States government. Seventeen of the 30 counts in the indictment against him carry the death penalty, and he will be found guilty.

There’s not much question about that. After all, Tsarnaev’s lawyer, Judy Clarke, in her opening statement, conceded his involvement in the April 15, 2013, marathon bombing that killed three and injured 260 – many horrifically and permanently, as the graphic and heart-wrenching trial testimony of survivors drove home and as the grisly photographs, introduced into evidence by the U.S. attorneys, emphasized.

A death penalty trial in Massachusetts strikes many people as an anomaly. After all, the Commonwealth has no death penalty on the books and has not executed a prisoner since 1947.

But in 1994, Congress passed, and President Bill Clinton signed, legislation that created a death penalty for dozens of crimes. Federal law thus provides the Department of Justice with the prerogative to seek the death penalty even though the same crime when prosecuted in state court does not allow the ultimate sentence. As a practical matter federal law effectively trumps the laws in the 18 states without a death penalty.

Given Massachusetts’ opposition to capital punishment, you might think that Tsarnaev, horrifying as the crimes are, is unlikely to face an executioner. But that conclusion would be wrong.

The 12 jurors who will decide life or death are not your average jurors. Rather, they are members of what’s called a death-qualified jury.

In 1968, the Supreme Court ruled that all prospective jurors who reject the death penalty on moral, religious or ethical grounds should be barred from serving on a capital case. By excluding a large swath of the population, the system deprives a defendant on trial for his life, unlike other persons accused of a crime, the right to be judged by a jury drawn from a fair cross-section of the community.

Another attribute of this jury deserves particular attention. Because the case is being tried in Boston, virtually every juror has some connection with the crime itself. Any juror who votes for life instead of death will necessarily face the questions of his co-workers, friends and family, “You let that guy off – how could you do that?” The understandable and overwhelming community antipathy towards Tsarnaev formed the basis for three motions for a change of venue. The trial judge, insisting that he would pick a fair jury, denied the motion each time. The defense sought review at a higher court, but the First Circuit Court of Appeals ruled 2-1 that the trial judge had not committed a clear legal error. The underlying and overwhelming community animus carries no legal significance, those judges ruled.

In the coming penalty phase of Tsarnaev’s trial the government first needs to prove that he is legally eligible for the death penalty. The government will easily get over this low bar. It need only meet a minimum threshold – to prove that the defendant acted with intent to kill or cause grave bodily harm. In a murder case – Tsarnaev’s included – these threshold factors are virtually a given.

In addition, the government must also prove that the case presents at least one “aggravating factor,” an aspect of the murder case that makes it worse than others. Most murder cases include facts that could be considered an aggravator, so this legal requirement also presents almost no impediment to the government. In Tsarnaev’s case the government has allegedly 13 aggravators, including causing death during the commission of other crimes and multiple killings.

After determining that Tsarnaev meets the legal standard of eligibility for the death penalty, the jury will engage in what is called the selection phase, where it literally selects the penalty, life or death.

Sometimes the eligibility and selection phases are bifurcated. Other times, they are combined. It’s up to the judge. The ultimate decision rests entirely in the jury’s hands. Jurors alone evaluate and balance the mitigating and aggravating factors.

We soon will know if Tsarnaev will be sentenced to die. One or more jurors may believe that a sentence of life without the possibility of parole would constitute an appropriate sentence.

That belief would be sufficient to save Tsarnaev’s life because a death sentence cannot be imposed without a unanimous verdict. Nonetheless, given who is permitted to serve on the jury and the fact that the trial is being held in Boston, the odds are stacked heavily against Tsarnaev. In other words, the system is functioning as it was designed to.

Bill Newman is a Northampton lawyer, host of a WHMP weekday program and author of “When the War Came Home.” His column appears the first Saturday of the month. He can be reached at


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