Dzhokhar Tsarnaev Is Guilty; Now the Real Trial Begins

Courtroom sketch via AP

Juror 552 seemed perfect from the start. The white-haired man, sitting at the long courtroom table, didn’t know anyone personally affected by the Boston Marathon bombings. Based on the news, he wasn’t sure whether Tsarnaev was guilty and he had no strong feelings about the death penalty.

Across the table, Tsarnaev looked down, uninterested in what was happening, his curly hair almost hidden behind one of his lawyers. But everyone else at the table—the judge, prosecutors, defense attorneys—paid careful attention to the retired communications worker in the hot seat. They were listening for the slightest hint that he might vote to spare Tsarnaev’s life or punish him with death.

“Life in prison is actually more drastic,” Juror 552 told the court. But “if the evidence was there to support the death penalty, I could impose the death penalty.”

One of Tsarnaev’s lawyers, Miriam Conrad, asked the man where he was the day of the bombing.

“I was at home, watching the Marathon on TV,” he said, “[but it was] in the background. I wasn’t entirely focused on the Marathon.” Yes, he allowed, he watched the news coverage afterward, saw the videos, and followed the manhunt.

“Sometimes,” however, “the news is totally inaccurate,” he said.

“In 1986, my house was burned,” he explained. “I was on an appointment down the Cape. Someone came in, poured gasoline all over it. … Then a quarter-stick of dynamite was taped to my door.” He said he knows the media is not always right because his local newspaper suggested he might have planted the dynamite himself. “Obviously, I didn’t.”

Conrad, not missing a step, asked if any charges came of it.

“No,” the man said. “Apparently, arson can be one of the toughest crimes to prove.”

The story gave no one pause. The guy was just right for the Tsarnaev trial and was chosen to hear the case.

The absurdity of finding a dozen locals with no strong opinion on the death penalty plodded along through January and February, constantly interrupted by record setting blizzards. To select a jury of Tsarnaev’s peers, the court had to find people with, shall we say, an uncommonly open mind. That was the price it paid for refusing to move the trial away from Boston, the scene of the carnage.

In Massachusetts, executing a convict is unconstitutional. And yet, prosecutors and defense attorneys spent weeks enacting this charade, ice-picking their way through an enormous jury pool to find 18 men and women—12 jurors and six alternates—all lacking firm convictions about who did the crime and whether the perpetrator deserves to die. That meant excluding a lot of folks, progressive and right-wing alike, who held strong opinions about the news, had a personal connection to the attacks, or couldn’t vote to kill. It meant excluding nearly everyone.

Based on answers to a carefully crafted questionnaire, lawyers whittled a list of 1,373 possible jurors from eastern Massachusetts down to 256. Out of the hundreds who were questioned, most were sent home. But not all.

“Is [the death penalty] something you’ve spent any time thinking about?” prosecutors asked Juror 638, a young woman who had written on her questionnaire that she had “no views” on the subject.

“No,” she said, laughing nervously. “That’s why I have no views.”

Once again, prosecutors and defense attorneys agreed, they’d found a perfect fit. She was selected to hear the case. Like Juror 552, she was named as an alternate at the end of the trial’s first phase.

Now that the jurors have found Tsarnaev guilty, the federal government wants to convince them to unanimously execute the 21-year-old bomber for his part on the bloodiest terrorist attack in Boston history. On the other hand, defense attorney Judy Clarke, who has brokered life-saving deals for Tucson killer Jared Loughner and Ted Kaczynski, the Unabomber, just has to convince a single juror to spare Tsarnaev’s life. Given Massachusetts’ history of choosing mercy over execution and the city’s increasing desire to move on, Boston just might be the best possible place where Tsarnaev could hope to be judged.

In Massachusetts, mercy has long obstructed the path to the gallows. The first man hanged here was a Pilgrim who’d arrived on the Mayflower. Executions in the 1600s—many in public on the Common—included convicted murderers, pirates, and witches. By 1644, however, Massachusetts’ first governor, John Winthrop, was arguing against mandatory hangings, noting that in the Bible, God “variethe the punishment according to the measure and nature of the offense.”

The legislature first debated whether to ban executions as early as 1835. But the abolition campaign really took off following the controversial 1921 conviction and execution of Nicola Sacco and Bartolomeo Vanzetti, one of America’s most famous death-penalty cases. The last men executed in Massachusetts were murderers Philip Bellino and Edward Gertson in 1947. For the next 30 years, Massachusetts governors repeatedly commuted the sentences of every death-row inmate. One governor even said he’d commute a death sentence for the Boston Strangler. Starting in the 1970s, Massachusetts’ Supreme Judicial Court repeatedly struck down death-penalty laws. A thoughtful 1980 opinion from the court quoted famous philosophers Albert Camus, Francis Bacon, and Thomas Jefferson warning of the danger of revenge and the fallibility of man.

At first, Massachusetts voters were not convinced and wanted the right to execute. In a 1982 referendum, they amended the state constitution to restore the death penalty, but the courts struck it down on a technicality two years later. After that, Gov. Michael Dukakis’ strong stance against executions, accompanied by the longstanding ambivalence of legislators, kept Massachusetts from joining the nation’s enthusiasm for the death penalty.

Today, mercy has a strong foothold here. The only Massachusetts jury that’s voted for the death penalty in the last 30 years was in the 2003 federal court trial of spree killer Gary Sampson. (He’ll be resentenced this year, because one juror lied during jury selection.)

Overall, Americans support the death penalty by a slimmer majority than 20 years ago, and the number of executions nationwide has declined from a peak of 98 in 1999 to 35 last year. Concerns are growing about the effects of lethal injection drugs at the same time an increasing number of innocent men are released from death rows across the country. Defense lawyers have also grown skilled at convincing jurors to spare murderers’ lives.

Most voters in Massachusetts now oppose capital punishment. A Boston Globe poll in January showed 61 percent of state residents favored life in prison without parole for first-degree murder, compared to 30 percent for a death sentence. Some would make an exception for Tsarnaev. Even so, in the Globe poll, 48 percent of Massachusetts residents supported a life sentence for him, compared to 46 percent for death.

“Nationally, people are more likely to favor the death penalty for the Boston Marathon bomber than statewide or in Boston,” says Steve Koczela, president of The MassINC Polling Group. “There’s not a clear desire for revenge in Boston.”

Jeffrey Toobin, legal analyst for CNN and author of several books on the law and courts, agrees. “What makes this case so compelling and important is that arguably the whole Boston Metropolitan area was the victim,” he says. But, “The issue in this case is the death penalty, and where are you going to get a better death-penalty jury than in Boston? Where will you find jurors on Harvard Square to find that anyone should be executed?”

Since opening arguments, the prosecution has been quietly baiting the jury to go for the death penalty. They handed jurors parts of the exploded bombs and showed graphic autopsy photos of Sean Collier, Krystle Campbell, Lingzi Lu, and eight-year-old Martin Richard. Some jurors cried. Others looked angry. Prosecutors haven’t yet explained the aggravating factors named in the federal death-penalty law, but they’ve already started building their case for execution. They’ve introduced evidence that Tsarnaev’s case involves a weapon of mass destruction, premeditation, and a vulnerable young victim.

With its eye equally on the penalty phase, the defense played the long game at trial. It chose not to contest Tsarnaev’s guilt or cross-examine the boy’s mourning father, the wounded victims, or the traumatized eyewitnesses. At the next stage, Tsarnaev’s lawyers won’t be limited to the specific mitigating factors listed in federal law and can introduce any evidence that bears on the defendant’s background, record, or character. Death-penalty mitigation defenses have become sophisticated efforts at telling a defendant’s life story, in hopes of inspiring mercy. And Tsarnaev’s lawyer Judy Clarke is one of the best death-penalty lawyers in the country.

Clarke gained fame in 1995 by convincing a jury to spare the life of Susan Smith, the South Carolina woman who drowned her children. Since then, she has negotiated a string of plea deals with federal prosecutors that spared the lives of Kaczynski, Loughner, and Eric Rudolph, the Atlanta Olympics bomber. She tried to do the same for Tsarnaev, but the federal government—intent on winning a death sentence in a terrorism case—refused to make a deal. Now she faces her first penalty-phase jury in years.

Sincerity will be vital to Clarke’s chances of persuading the jury, says David Rossman, a Boston University law professor. He believes Clarke likely conceded Tsarnaev’s responsibility in the bombings because contesting the charges could’ve destroyed her credibility with the jury, which she’ll need in the second round. “If they detect the faintest whiff of falseness in you,” Rossman adds, “they won’t believe you when you’re trying to convince them.”

Allowing the jury to find Tsarnaev guilty in the first phase without a fight is another way that Clarke may be looking ahead and trying to save her client’s life. This way, jurors get to convict Tsarnaev and blame him for all the death, chaos, and suffering … and then step back and consider mercy.

The trial’s second phase will be a storyteller’s duel. The prosecution will evoke the humanity of the victims, while the defense has the harder emotional task: evoking the humanity of Tsarnaev.

“Boy, good luck to them!” Toobin says of the defense lawyers. “You’re really talking about the mercy of the jury: do you really want to execute someone who’s barely more than a boy?”

Tsarnaev’s youth and immaturity—he was 19 at the time of the bombings–will likely be key to his defense. His attorneys will depict him as vulnerable to his older brother’s influence. They may introduce evidence that Tamerlan Tsarnaev was a suspect in a triple murder in Waltham, and could argue that Dzhokhar Tsarnaev knew about the crime and feared his brother. (For more on the Waltham killings, read our March 2014 story, “The Murders Before the Marathon.”)

Family history will also matter. Rossman says a typical death-penalty mitigation defense starts two generations back. “You start investigating everything about the family of the defendant, from the birth of the grandparents,” he says, “to try to find a way to make the jury see a person who will die, as opposed to asking a jury to say, [what is the] appropriate punishment for someone who killed a little boy, killed three other people, killed a police officer?”

The prosecution will likely stress Tsarnaev’s cruelty and indifference to the suffering he caused. “The penalty phase testimony is going to be harrowing,” says Toobin, “whether it is the parents of the eight-year-old boy who died or survivors themselves with missing limbs. That’s going to be a rough day for Mr. Tsarnaev, and it should be.”

In reality, though, this winter’s jury selection may have already determined Tsarnaev’s fate. “A lot of the decision about what will happen to him,” Rossman says, “is already cast by the election of the people on the jury.”

The voir dire process is meant to produce an open-minded jury. However, just as the jury selection questions won’t purge jurors’ memories of the bombing, likewise it can’t purge their knowledge and feelings surrounding the morality of an execution. A single juror who sees something worthy of mercy in Tsarnaev, or simply can’t send a man to his death, could decide the outcome.

“There are people with greater and lesser degrees on their view [of] what it would take to kill someone,” Rossman says. “And if Judy Clarke was successful at identifying the people who will be most empathetic to the argument she’s going to make, she only needs one vote.”