July 9, 2013

Seeking death penalty in Boston case? A long road

By Pete Yost / The Associated Press

(Continued from page 1)

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

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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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Prosecutors seem to have strong evidence against Tsarnaev, but even if jurors agree that he was behind the explosions that killed three and injured more than 260, execution is far from guaranteed.

After a conviction, jurors must again be unanimous in their decision to impose the death penalty. In the terrorism case against Sept. 11 conspirator Zacarias Moussaoui, one juror declined to vote in favor of the death penalty, resulting in a life sentence.

In the Tsarnaev case, the decision could come down to whether the government can prove the attacks showed substantial planning and premeditation. The indictment against Tsarnaev contains extensive detail about his actions the day of the bombings and after, but contains a relatively small amount of information about prior weeks and months.

If Dzhokhar Tsarnaev's now-dead older brother, Tamerlan, was the planner and Dzhokhar played a lesser role, Dzhokhar's legal team could use that argument to his benefit. Another factor in Dzhokhar's favor: He had no prior criminal record. Tsarnaev also could benefit from what federal law calls "other factors," — anything in the defendant's background, record or character that weighs against a death sentence.

"The most likely way for Tsarnaev to avoid the death penalty would be cooperating with the government — helping investigators identify other bad actors, if any, in the deal," said Sutton. "But I think even if the defense plays the defendant as young, gullible and willing to cooperate" in the investigation, "what this defendant can really offer in the way of information is probably very limited."

Two widely publicized domestic terrorism cases from the past — the Olympic Park bomber and the Unabomber — ended when defense attorney Judy Clarke negotiated plea agreements with the government.

Clarke now represents Tsarnaev.

"Even though the government is not supposed to use the death penalty as a bargaining tool, the reality is that a lot more cases are announced as death penalties than actually result in a trial," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group.

In the 1990s, Olympic Park bomber Eric Rudolph carried out four bombings in Georgia and Alabama that killed two people and injured more than 120.

With jury selection underway, Rudolph admitted to all the bombings and received life in prison. As part of his deal, Rudolph led investigators to five hidden stashes of dynamite, three of which were relatively near populated areas.

Clarke also represented Theodore Kaczynski — the man known as the Unabomber who set off 16 bombs that killed three people and injured 23 from 1978 to 1995.

As court proceedings began, Kaczynski attempted to hang himself. He demanded to act as his own lawyer. A psychiatrist said he was a paranoid schizophrenic. His lawyers argued that jurors should be told he was mentally ill.

Kaczynski argued with his own attorneys. He didn't want to be viewed as mentally ill, he said. In the end, the government and Kaczynski's lawyers cut a deal. On Jan. 22, 1998, Kaczynski pleaded guilty to all the government's charges in exchange for life imprisonment

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