July 9, 2013

Seeking death penalty in Boston case? A long road

By Pete Yost / The Associated Press

WASHINGTON — If the Obama administration tries for the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev, it could face a long, difficult legal battle in a state that hasn't seen an execution in nearly 70 years.

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Boston Marathon bombing suspect Dzhokhar Tsarnaev, in a photo provided by the Federal Bureau of Investigation.

AP

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Medical workers aid injured people at the finish line of the Boston Marathon following explosions on April 15, 2013.

AP

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Attorney General Eric Holder will have to decide several months before the start of a trial — if there is one — whether to seek death for Tsarnaev. It is the highest-profile such decision yet to come before Holder, who personally opposes the death penalty.

He'll get plenty of advice.

"If you have the death penalty and don't use it in this kind of case where someone puts bombs down in crowds of civilians, then in what kind of case do you use it?" said Aitan D. Goelman, who was part of the legal team that prosecuted Oklahoma City bombing figures Timothy McVeigh and Terry Nichols.

In the past 4½ years, the Justice Department has sought executions in several instances. But, in an indication of how protracted the process can be, none of the administration's cases has yet put anyone on death row.

Massachusetts abolished its own death penalty in 1984, but Tsarnaev is being prosecuted in federal court. Since the federal death penalty was reinstated in 1988, only three people, including McVeigh, have been executed. Others have pending appeals.

In cases where federal juries have chosen between life and death, they have imposed twice as many life sentences as death sentences — 144 to 73 — according to the Federal Death Penalty Resource Counsel Project, a two-decade-old group created by the Administrative Office of the United States Courts.

The jury pool for a case against Tsarnaev would come from a state that has rejected repeated efforts to reinstate the death penalty.

However, a former U.S. attorney in Massachusetts, Michael J. Sullivan, says viewing the state as opposed to the penalty is not entirely correct. Voters have supported reinstating the death penalty in non-binding referenda. And when Sullivan was U.S. attorney in Boston, his team of prosecutors won a death penalty verdict. That case is on appeal.

"I'm not suggesting there's strong interest in reinstating the death penalty in Massachusetts, but I think jurors in a federal case would be very thoughtful and under the right circumstances would vote in favor of the death penalty, said Sullivan.

Before the Justice Department decides to seek the death penalty, a case moves through three tiers of review by federal prosecutors.

"There's going to be a lot of push in that U.S. attorney's office in Boston to seek the death penalty in this case," predicts former prosecutor Johnny Sutton, who chaired a panel of 17 U.S. attorneys advising the attorney general on law enforcement issues during the George W. Bush administration. Sutton was U.S. attorney for the Western District of Texas from 2001 to 2009.

On June 27, Carmen Ortiz, the U.S. attorney in Boston, said, "We will do everything that we can to pursue justice." Her comments followed the handing up of a 30-count indictment against Tsarnaev that included 17 charges carrying the death penalty or life imprisonment.

In Washington, federal prosecutors in a Capital Case Unit conduct their own analysis of death penalty cases. They advise the Attorney General's Review Committee on Capital Cases, which makes recommendations to the attorney general. Defense lawyers can weigh in, too.

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