Sentencing Dzhokhar Tsarnaev

Professor Karen Pita Loor discusses the process of sentencing a federal death penalty case.

On April 8, 2015, Dzhokhar Tsarnaev was convicted of orchestrating the Boston Marathon Bombing. He was found guilty on all 30 counts with which he was charged. Seventeen of those carry qualifiers that make him eligible for the death penalty. Those qualifiers list his responsibility for each of the lives taken on the day of the bombing and the manhunt that followed. To move to the sentencing phase, Tsarnaev needed to be found guilty under one of those counts with just one qualifier.

A federal death penalty trial is structured in two phases. In the first phase, known as the culpability phase, the jury was instructed to determine the guilt or innocence of the defendant. In the second part, known as the sentencing phase, the same jury will weigh what are known as aggravating and mitigating factors, presented by the prosecution and the defense accordingly, to determine whether the death penalty should be imposed, or if the defendant should serve life in prison.

Before the culpability phase, BU Law asked Professor David Rossman to discuss the charges against Tsarnaev and the process of jury selection. Now that the sentencing phase has begun, we spoke with Clinical Associate Professor Karen Pita Loor about the strategies employed during the culpability phase, as well as what to expect from sentencing.

BU Law: What strategies did prosecutors use in the first part of the trial against Tsarnaev?

Pita Loor:They had an easy job during the first phase. Essentially, their strategy was similar to the strategy any prosecutor would employ in a criminal trial—to prove the elements of each of the counts with which the defendant is charged.

Prosecutors focused on Tsarnaev’s motive and on connecting him to the bombing. We have all seen the images of him with the backpack standing behind the Martin family and then placing the backpack on the ground. We all know what happened next. Prosecutors wanted to prove that, contrary to defense claims, he was very much involved in the planning of the bombing. They examined the materials on his computer, like the Al-Qaeda magazine, and the messages he posted from his second Twitter account, which they claimed demonstrated his radicalization. They showed that he was the one who obtained the gun from a friend which was later used in the killing of Sean Collier, the MIT police officer.

What strategies did Tsarnaev’s defense attorneys employ?

Because discovery obligations force prosecutors to disclose the evidence they intend to present in advance of the trial, Tsarnaev’s defense attorneys knew ahead of time just how overwhelming the evidence for guilt was against their client. So at the outset, in the opening statement for the defense, Tsarnaev’s attorneys conceded his guilt.

Admitting his guilt at the beginning allowed the defense to focus the jury on the theory that Tsarnaev was under the control of his older brother, Tamerlan. The defense claims that Tamerlan was the actual mastermind of the bombing. At strategic moments during the trial, defense attorneys highlighted the nature of Dzhokhar’s relationship with his older brother, and the power Tamerlan had over him, all the while stressing that Dzhokhar was not attempting to escape responsibility for his actions.

The entire strategy in the guilt phase was in preparation for this second phase of the trial, in which the same jury will decide whether to impose the death penalty or life in prison. In this phase, jurors will be asked to weigh aggravating and mitigating circumstances to Dzhokhar Tsarnaev’s involvement in the bombing. The prosecution will make the case that the nature of the crime is such that the death penalty should be imposed, while the defense will continue to present factors, like his relationship with his brother, intended to qualify his involvement.

If his defense planned to admit Tsarnaev’s guilt in the trial, why did he plead not guilty?

There are several reasons for this strategy. First, and probably most important, was to give the jury as many opportunities as possible to hear the mitigating factors.

The defense team may have also wanted the jury to see Dzhokhar before the sentencing phase. That way, when sentencing begins, they are used to the sight of him, and there isn’t the initial shock of seeing the perpetrator, who has been splashed over their TV screens for two years, sitting in front of them in the courtroom. It could have also helped to humanize him a bit, to see him interact with his counsel as a living person; it could make him seem like less of a monster. It is unclear how much their client helped on that point, whether or not it would have helped for him to show more emotion, but that may have been part of the defense’s motivation in pleading not guilty.

Finally, I think defense attorneys wanted to give the jury the opportunity to find Tsarnaev guilty, which they did—overwhelmingly so—for all 30 counts. The defense strategy may be that voting guilty allowed the jurors a catharsis, a way to feel that they had done their part to hold Tsarnaev accountable for such a tragedy.

When a defendant pleads guilty in a death penalty case, the procedure (if there is no settlement) is to skip the culpability trial and go straight to sentencing. If jurors had not had the opportunity to find Tsarnaev guilty they may have questioned their role in the proceedings—their ability to hold him accountable would have hinged on his punishment—and that may have made them much more likely to impose the death penalty.

What is the process for the sentencing phase in a federal death penalty case?

During the second phase of the trial, prosecutors have presented aggravating factors to the crime committed, which were disclosed before the trial. Jurors were asked to consider the heinous, cruel, and depraved manner of committing the offense, the substantial planning and premeditation it took, and the vulnerability of the victims, which refers specifically to the child, Martin Richards, who was 8 years old.

Additional factors include betrayal of the United States, encouragement of others to commit acts of violence and terrorism, and selection of site for acts of terrorism. That last one speaks to the significance of the timing and location of the bombing. Prosecutors want to argue that Dzhokhar Tsarnaev picked the Boston Marathon because it was a crowded, family event. And more than that, it’s held on Patriot’s Day, and there’s something very American about it. Thus the government’s theory is that the goal was to cause the greatest amount of damage to the greatest number of people in a very symbolic way. For the jury to be able choose to impose death in this phase, they must find unanimously that at least one aggravating factor is present beyond a reasonable doubt.

The defense’s job is to show evidence of mitigating factors, which each juror will weigh independently against the aggravating factor(s) they have found beyond a reasonable doubt. A juror need only find that there is a preponderance of the evidence for a mitigating factor, which means that more than 50 percent of evidence must lean in favor of a mitigating factor before it may be weighed against the existing aggravating factor.

Jurors need not agree on the mitigating factors before considering them in their deliberations. At the guilt phase, we already saw the defense begin to focus on two mitigating factors listed in the statue that governs factors that can be considered in death penalty (18 USC 3592): duress and minor participation. Both of these factors reinforce the story the defense has cultivated that Dzhokhar Tsarnaev was not the mastermind, but was under the influence of his overbearing and authoritative older brother.

Another factor the defense brought up in its closing argument, possibly setting up for the sentencing phase, was Tsarnaev’s age. At the time of the bombing, Dzhokhar was only 19 years old. Defense attorney Judy Clarke called him a kid, a teenager, during her closing argument. That’s very strategic language, because age is a statutorily listed mitigating factor. There are a number of other issues that deal with Tsarnaev’s background and character that the defense may also present in an effort to humanize him and inspire mercy in the jury. The defense is not limited by the statute as to which mitigating factors they can present.

What types of evidence will the prosecution and defense present in the sentencing phase?

In terms of evidence, the government has brought back some of the witnesses we heard from in the culpability phase. The family members of the deceased victims have come back to testify about what those people were like and how their deaths have affected the families. The people who were injured have been called upon to testify about the pain they experienced and the degree of suffering inflicted by the bombing. Prosecutors have to prove this act was heinous and depraved, so they want to make it hard for jurors to sit through the second round of testimonies and remain neutral.

There has been a lot of news coverage about the video of Tsarnaev making an obscene gesture to a security camera. The government’s theory is that this gesture demonstrates a lack of remorse for his behavior and the resulting deaths and injuries. Prosecutors listed lack of remorse as one of the aggravating factors they expected to show, and in their eyes, this video has proven that factor.

The defense’s goal instead is to show who this “kid” was before this event. From the defense perspective, the gesture demonstrates Dzhokhar’s immaturity. The defense will bring witnesses to paint a picture of who Dzhokhar was before the bombing. They want to show who he is as a human being outside of this event, so they’ll bring people up who knew him before: family members, friends, students who went to school with him, teachers, etc., people who can humanize him and speak to his character.

Beyond that, I think there are two potential types of experts we may hear from. The first may be experts in brain development, or someone who can speak to Dzhokhar’s youth as a mitigating factor. There has been a lot of research on the adolescent brain and how, at the age of 19, it is still very much in development. So we could hear from experts highlighting the brain’s decision-making abilities at 19 and how that should influence sentencing.

We may also hear from experts in radicalization. The defense will want to demonstrate how a person can be primed for radical indoctrination, particularly someone who was virtually alone in the US, living with a dangerous older brother as an influence.

How likely is it that the death penalty will be imposed, especially in a state like Massachusetts, which doesn’t itself have the death penalty?

The first thing to remember is that this has happened in the past. Gary Lee Sampson was convicted in a federal death penalty trial in Boston in 2003. He received the death penalty for the murder of two men during a carjacking, although his case is now in appeal for reasons unrelated to the case being tried in Massachusetts. The Sampson case is scheduled for retrial in federal court in September of this year.

The second thing to keep in mind is that this jury is death qualified. During voir dire, the process in which jurors are vetted and chosen for trial, these jurors were asked if they had a moral conviction that would prevent them from imposing the death penalty. They were selected for this trial because they all said that under appropriate circumstances they would be willing to impose the death penalty. So in a way, these jurors are different from the majority of Massachusetts residents who oppose the death penalty.

A Boston Globe poll conducted in February 2015 found that 61 percent of people in Massachusetts said they favored life in prison, generally, over the death penalty. When they were asked specifically about the Tsarnaev trial, responses dropped to 48 percent in favor of life in prison, with 6 percent undecided. Maybe that should inform the way we think about this case, but again, this jury is death qualified, so they come to this decision from a different starting point. They are ready, under the appropriate circumstances, to impose the death penalty.

Are there likely to be appeals to this case?

Yes. Before the trial began the defense filed multiple motions for change of venue, arguing that Tsarnaev could not get a fair trial in this state. That will create a huge opportunity for the defense to appeal in this case.

The bombing itself and the manhunt shortly after were so public, and the Boston Strong movement did so much to bring the city together. It is fair to say that this event is something that didn’t just happen to the victims of the bombing—those who died, or who were injured and their family members—it’s something that, in a way, happened to everyone in the city and surrounding areas. This happened to Boston. Considering the jurors are from Massachusetts, many from Boston itself, it is difficult to see how those jurors would not have felt affected by the event. That will open up grounds for appeal on the argument that the trial’s venue should have been changed. The appellate options are many.