Jan. 27 (Bloomberg) -- Dzhokhar Tsarnaev, accused in the deadly Boston Marathon bombing that killed three and injured more than 260, will probably face a capital punishment phase of his trial given the violence of the attack and the evidence against him, former federal prosecutors said.
The decision, expected this week, is in the hands of U.S. Attorney General Eric Holder, who must sign off on any attempt to seek execution for a federal capital crime.
Holder is almost certain to seek death for the 20-year-old former college student, given the “heinous nature of the crime,” said Michael Kendall, previously a federal prosecutor in Boston and now a defense lawyer at McDermott Will & Emery LLP. “There won’t be a defense that he didn’t plant the bomb; the only thing there can be a real fight about is the death penalty.”
Holder’s decision comes as American prosecutors seek the death penalty less frequently. In 2013, Maryland became the sixth state in six years to end capital punishment, according to the Death Penalty Information Center. The number of executions in the U.S. fell to 39 from 43 in 2012, only the second time in 19 years that there were fewer than 40 executions. There were 98 executions in the U.S. in 1999.
Tsarnaev, a Russian immigrant of Chechen descent who is now a U.S. citizen, is accused of plotting with his brother to detonate homemade bombs near the marathon’s finish line on April 15, 2013, in the first deadly terrorist attack in the U.S. since Sept. 11, 2001. He pleaded not guilty in July to 30 counts, including the fatal shooting of a university police officer after the attack. A trial date hasn’t been set.
The explosions killed three people, Krystle Marie Campbell, 29, Lu Lingzi, 23, and Martin Richard, 8, according to the indictment. Tsarnaev is also accused in the post-explosion shooting death of Sean Collier, 27, a Massachusetts Institute of Technology police officer.
If Holder opts to pursue the death penalty, Tsarnaev will join almost 500 people the U.S. has sought to execute since federal capital punishment was reinstated in 1988. Only three of them have been put to death.
In Massachusetts, the U.S. has tried two cases seeking the death penalty. Neither resulted in a death sentence and one of them is being retried. Executions are unpopular in Massachusetts and not available under state law. The jury in Tsarnaev’s case will be drawn from residents of the state, while any execution would be carried out at the U.S. penitentiary in Terre Haute, Indiana.
A Boston Globe poll in September found that a third of the city’s residents back the death penalty for Tsarnaev, while 57 percent support a life sentence without the possibility of parole.
All cases in which the U.S. wins a conviction and is seeking capital punishment require a second trial on sentencing, a death penalty phase. Jurors are asked to weigh mitigating and aggravating factors to decide whether the defendant deserves life in prison or death. Holder must advise U.S. District Judge George A. O’Toole Jr. in Boston of his decision by Jan. 31.
If the U.S. decides to seek death for Tsarnaev, only potential jurors who say they are willing to impose a capital sentence can be chosen for the panel.
Under U.S. Justice Department policy, Holder received a recommendation on whether to seek the death penalty from U.S. Attorney Carmen Ortiz in Boston, whose office is prosecuting the case. Such reports, which aren’t public, include defense submissions on why the penalty shouldn’t be sought.
Christina DiIorio-Sterling, a spokeswoman for Ortiz, didn’t return a call seeking comment on Holder’s decision and the Jan. 31 deadline.
The Justice Department will probably seek death, although it will be a difficult choice both “politically and personally” for Holder, said Peter White, a former federal prosecutor in Virginia and Washington who’s now a litigation attorney at Schulte Roth & Zabel LLP.
“If it isn’t sought for this -- a terrorist act inflicting massive damage on innocent people, which could have killed more -- what would it be sought for?” said White, who worked for Holder in the 1990s when the attorney general was U.S. attorney for the District of Columbia and also considered whether to seek death for accused killers. “For him, that will be a very difficult decision. I know he takes that seriously.”
Tsarnaev is being housed at a prison medical facility in Ayer, Massachusetts. His legal team, led by Federal Public Defender Miriam Conrad, has spent months gathering evidence to persuade the U.S. not to seek his death, according to court records.
William Fick, a federal public defender in Boston, listed in a Sept. 27 court filing the challenges of gathering mitigating evidence. Tsarnaev’s family is “half a world away” and one potential witness in the U.S., Ibragim Todashev, was killed by Federal Bureau of Investigation agents, according to the filing. Law-enforcement officials were questioning Todashev on May 22 about a triple-murder he was suspected of committing two years earlier with Tamerlan Tsarnaev when he became irritated and lunged at officers, two officials, who asked for anonymity because of the investigation, said in May.
Dzhokhar Tsarnaev’s defense team includes San Diego lawyer Judy Clarke, a death-penalty specialist who represented “Unabomber” Ted Kaczynski and 1996 Olympics bomber Eric Rudolph.
Kaczynski, a former professor at the University of California at Berkeley, used mail bombs to kill three people and injure 23 from 1978 to 1995 in a terror campaign against technology. He pleaded guilty in 1998 and is serving a life sentence. Rudolph also pleaded guilty and got a life term.
Kendall said he suspects Tsarnaev will change his plea to guilty to avoid a damaging trial over whether he and his brother Tamerlan, who died after a police shootout, were responsible for the attack. The case would then focus on whether it’s moral to kill murderers, Kendall said.
“If he were to go to trial on the issue of guilt or innocence, and put forward a defense about his mental health or his brother, a jury won’t find him not guilty -- it would be unsympathetic,” Kendall said. “If he admits his guilt, it may be a more attractive defense. A jury is going to be more sympathetic if it’s just a death penalty issue.”
Tsarnaev ran over his brother with a stolen SUV as he fled police and later hid in a boat in the backyard of a suburban Boston home. He wrote messages on the wall and beams of the boat, the U.S. said.
“The U.S. government is killing our innocent civilians” and “I can’t stand to see such evil go unpunished,” he wrote, according to the indictment against him. He also wrote, “We Muslims are one body, you hurt one you hurt us all,” according to the indictment.
His personal computer held instructions for making bombs out of pressure cookers and fireworks like the ones used in the marathon bombing, as well as files related to al-Qaeda and jihad, according to the indictment.
Since a 1976 U.S. Supreme Court ruling paved the way for the federal death penalty’s restoration as part of a drug-crimes law a decade later, the U.S. has only executed three people.
Timothy McVeigh was executed by lethal injection in 2001, for the 1995 Oklahoma City bombing, which killed 168 people and injured more than 800. Drug kingpin Juan Raul Garza was executed in 2001 and Louis Jones was put to death in 2003 for murder.
Kaczynski is serving his sentence at the federal administrative maximum prison in Florence, Colorado, as are Rudolph and Terry Nichols, McVeigh’s co-conspirator.
In federal cases where juries have been asked to decide between life and death, they called for 148 life sentences and 74 executions, according to the Federal Death Penalty Resource Counsel Project. Appeals are pending in 17 cases, while other defendants are awaiting retrial or have had their sentences vacated, it said.
In Massachusetts, two defendants have been prosecuted under the 1994 Federal Death Penalty Act. Gary Lee Sampson was sentenced to die in 2004 after pleading guilty to two counts of carjacking resulting in death. His sentence was overturned after an appeals court ruled that a juror had withheld information about her ability to be impartial.
Kristen Gilbert, a former nurse at a Veterans Affairs Medical Center in Massachusetts who was tried under the act for killing four patients, was given a life sentence. In a third case, the U.S. dropped its charges against alleged killers Branden Morris and Darryl Green over a 2001 slaying to allow the state to prosecute instead.
The death penalty doesn’t always give victims additional satisfaction, according to White, the former prosecutor.
“In my experience, that varies as widely as people’s opinions about the death penalty,” White said. “Some victims believe it’s the ultimate vindication and gives them closure. Some victims I’ve talked to think death-for-a-death is not an appropriate resolution or wouldn’t be helpful to them.”
The case is U.S. v. Tsarnaev, 13-cr-10200, U.S. District Court, District of Massachusetts (Boston).
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