With the first phase of the trial over for Dzhokhar Tsarnaev, convicting him on all counts, one would think the second death penalty phase is a no brainer. Multiple reasons suggest that Tsarnaev may likely receive life without the possibility of parole. Unlike the first phase, jurors will now get to hear evidence that will show the aggravating factors which warrant the death penalty. His case is likely the most heinous crime committed in Massachusetts with four persons killed by a bomb, used as a weapon of mass destruction, including an eight year old and injuring 264 others with life permanent injuries both physical and emotional. Family members of the four deceased victims, including one police officer and many of the other many victims whose lives have been forever altered will likely testify on behalf of the prosecution. The prosecution will also likely portray his callousness in going to a Whole Foods store and the gym following the bombing.
In his defense for life without parole, the defense will prevent evidence of mitigating circumstances. Those mitigating circumstances are instances to show that the life of Tsarnaev should be spared. The defense has already indicated in the first phase the control that his older bbrother held over him. The defense attorney, Judy Clarke is Tsarnaev’s best defense. Clarke is an experienced death penalty attorney, who with her expertise, has spared the death penalty for many of her clients. She represented Zacharias Moussaoui (known as the 20th Hijacker), Eric Rudolph, (the Atlanta Olympic Park Bomber), Ted Kaczynski (“the Unabomber”) and Jared Loughner ( the Tucson Arizona shooter). Kaczyski’s letter bombs over 20 years killed three persons. Rudolph’s bomb killed two persons and injured over 100. And Loughner’s shooting killed 6 persons and injured 13 others, including former Congresswoman Gabrielle Gifford. Each case is different. However, Clarke’s track record in avoiding the death penalty for these infamous defendants speaks volumes. Tsarnaev had a life before that infamous day. And Clarke will attempt to show the mitigating factors that may spare his life. She may actually have a little help from the jurors who are deciding Tsarnaev’s fate.
Massachusetts has no death penalty. The case is a federal case under which the federal statutes allow for the death penalty in his case. Seventeen of his convictions allow for the death penalty. However, Massachusetts held its last execution almost 70 years ago. And many residents, and likely jurors, may have strong unconscious feelings about giving the death penalty. During voir dire, jurors were questioned on their ability to give the death penalty , if the evidence warrants it. Most jurors will not know what their true feelings are until faced with the decision.
All jurors must agree on the death penalty for Tsarnaev to receive the death penalty. If the decision is not unanimous, then Tsarnaev will automatically receive a sentence of life without the possibility of parole. And for the defendant that accepts death as the ultimate reward, a death sentence may not be the best penalty for him. That thought will not be lost on the jurors. In giving Tsarnaev the sentence of life without parole may be the best penalty for him. Sitting and living out the rest of his life in an American jail may be the best reward for him, instead of his sought after death sentence to join his brother.
The death penalty phase will commence on April 21. Updates will be provided.
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor. She founded LegalSpeaks in 2009. She often appears in the media on Al Jazeera America, Arise TV, BET, C-Span, Fox 5 News, RT America and TV One, among others.