April 2015 | by Dan Harayda
BOSTON — The mysterious bomber who hid behind a tree before bringing death, carnage and catastrophic suffering to the 2013 Boston Marathon is likely to emerge from the shadows as attorneys for Dzhokhar Tsarnaev plead with a jury to spare his life.
The penalty phase in Tsarnaev’s trial gets underway this morning in Boston’s federal court. The same jury of seven women and five men who convicted him on all 30 counts must decide his punishment: execution or life in prison with no possibility of parole.
For jurors to let 21-year-old Tsarnaev live, experts say, his attorneys must shed light on his dysfunctional family history, his relationship with his older brother, Tamerlan, and his life as a college student before the bombs exploded.
“The difference from phase one is that in phase two, we’re going to see a robust defense case,” said Mark Pearlstein, a former federal prosecutor in Massachusetts.
Prosecutors will again go first, as they did in the guilt phase of the trial. After opening statements, they will make their case for why aggravating factors, defined in federal statute, outweigh mitigating ones and warrant the death penalty.
The government has convinced the jury of at least one aggravator: The jury found Tsarnaev guilty of causing death while committing another crime. If the jury agrees with prosecutors that the bombings were heinous and claimed particularly vulnerable victims, then the prosecution will have notched two more aggravating factors in the quest to tip the scales.
Prosecutors face new risks and challenges in this phase, according to Michael Coyne, dean of the Massachusetts School of Law.
“They’ve got to be careful that they don’t overuse the same evidence” from the guilt phase, Coyne said. “Where the jury does appear to be emotionally moved by much of the evidence, they have to be careful that the jury doesn’t feel taken advantage of.”
The defense has at least one mitigating factor that the government can’t dispute: Tsarnaev had no significant criminal history before the marathon attack. His lawyers’ challenge will be to convince jurors that mitigating factors should outweigh all the aggravating ones combined and therefore warrant a life-in-prison sentence.
How to weigh each factor is entirely up to the jury. By law, the judge can give members no guidance on that.
“At the end of the day, the jury goes in the room, closes the door and decides: Should we show mercy or not?” said Suffolk University Law School professor Rosanna Cavallaro.
The defense is not asking the jury to “go easy on Dzhokhar,” according to the closing argument from Tsarnaev’s attorney, Judy Clarke, before the conviction. But prosecutors say that’s exactly what attorneys are asking for every time they say older brother Tamerlan was the driving influence behind the attacks.
Tsarnaev’s team is likely to call witnesses who can give context to his role in the attacks, which left three people dead and more than 260 injured. The jury found him responsible for the murder of MIT security officer Sean Collier during the manhunt.
Defense witnesses could include mental health professionals who can speak in general terms about sibling dynamics or dysfunctional families. Testimony might come from people who have known Tsarnaev and can say his brother had a domineering effect on him.
“I suspect they’re going to suggest he may have been afraid of his brother,” said Pearlstein, who practices criminal defense law as a partner at McDermott Will & Emery in Boston. They might try to show, for example, that Dzhokhar knew about Tamerlan’s possible involvement in a triple homicide in Waltham, Mass., in 2011. That case is under investigation.
Tsarnaev has the right to testify, but experts doubt he will do so. He has shown no remorse in the courtroom and would surely take a damaging beating on cross-examination.
“We’re a forgiving society,” Coyne said, “but you have to ask to be forgiven, and it has to be sincere.”
Although the majority of Massachusetts residents oppose the death penalty, this jury might be ready to impose it, courtroom experts say.
Judge George O’Toole questioned the jurors individually before they were seated. In qualifying them, he was satisfied that each one could vote for death if the facts of the case merit it. What’s more, the fact that all except one member of the jury are white bodes well for the prosecution, according to Coyne.
“This is the classic death penalty case, and they’ve got the classic death penalty jury,” Coyne said. “A white, middle-class jury is more likely to bring back a death penalty verdict than a jury that is younger and more diverse.”
The vote must be unanimous. If one juror holds out, Tsarnaev gets life even if the other 11 believe he deserves death.
The jury might not see death as the most severe punishment. The government insists that Tsarnaev’s writings in the boat where he hid during the manhunt represent his true beliefs. He expressed a desire for death when he wrote, “I am jealous of my brother, who has received the reward of Jannut ul Firdaus,” the highest form of paradise in Islam.
“The jury may say, ‘He wrote that in the boat. (Martyrdom) is some Islamic prize, and we don’t want him to get it,’ ” Cavallaro said.
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