Dzhokhar Tsarnaev Death Penalty Trial Started Today

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.

14 Responses to Dzhokhar Tsarnaev Death Penalty Trial Started Today

  1. Malisha says:

    I ran across this just now. It is wonderful and bizarre. Notice that the protagonist (huggee/hugger) was ticketed for “disturbing the peace” when what he was actually doing was WELCOMING the peace.

  2. Nef05 says:

    OT:Two developments in the Mike Brown case.
    1.ACLU files suit on behalf of Grand Juror Doe stating the Missouri law criminalizing speech by Doe, of Doe’s grand jury experience, is unconstitutional as-applied (pdf link to suit below).
    2. A number of citizens, attorneys, and a former judge – under the umbrella of the Ethics Project – have filed an ethics complaint against McCulloch and his two assistant prosecutors. (link to article in response to this post)

    ACLU federal suit pdf

    Click to access Grand_Jurur_Doe_Complaint_1-5-15.pdf

    • Nef05 says:

      Here’s the article. The hard copies are to be delivered Wednesday, so the pdfs should be available that afternoon. In the meantime, here’s what’s been released so far.

      ST. LOUIS (KMOX) – A bar complaint against St. Louis County Prosecuting Attorney Bob McCulloch and Assistant Prosecuting Attorneys Kathi Alizadeh and Sheila Whirley has been filed regarding the handling of the Ferguson grand jury.
      Attorney and former judge James R. Dowd and attorney Robert Ramsey reviewed the grand jury transcript – including evidence, witness interviews and testimony – before a group of seven citizens and attorneys – led by Christi Griffin, founder of the Ethics Project – filed an 11-page complaint with the Office of the Chief Disciplinary Counsel in Jefferson City, Missouri.
      Griffin says the complaint focuses on more than 15 Rules of Professional Conduct the group believes were violated, including the following:
      – Presenting witnesses to the grand jury – including Darren Wilson – who McCulloch, Alizadeh and Whirley knew or should have known would make false statements, is not exhaustive.
      Under Missouri Supreme Court Rule, the Office of the Chief Disciplinary Counsel has the duty to investigate allegations of misconduct by lawyers and for prosecuting cases where the misconduct poses a threat to the public or to the integrity of the legal profession.
      It is the position of the complainants that McCulloch, Alizadeh and Whirley’s conduct have done both.
      – Presenting the grand jury with a legal instruction ruled unconstitutional for decades.
      – Mislabeling and misplacing evidence related to key witness Dorian Johnson.
      – Failing to provide specific charges to the jury after “dumping” on them thousands of pages of interviews and evidence the complainants cite as going above gross negligence.
      Griffin has said initial reports from the Ferguson police chief that Darren Wilson did not know Michael Brown was suspected in an earlier convenience store robbery were changed in testimony before the grand jury, and she believes that represents perjury.
      “He is the one that is allowing that perjured testimony to be presented to the grand jury, and that is a direct violation of the Code of Professional Ethics,” she said.
      Monday’s complaint was faxed, and Griffin says a copy will be delivered to the office Wednesday.

      • Malisha says:


        I hope (and expect) that the Witness-40 caper was included in the complaint.

        I HATE McCullogh’s face. I hate to see his face. His face gives me a feeling of deep revulsion!

        • Nef05 says:

          Yes! Although she is named as Witness 41. I wonder if that is a typo/technicality and if that will have any effect on the complaint. The pdf is out. I’m posting the link in my response to the Prof. along with a request for his opinion.

        • Nef05 says:

          Absolutely. The pdf is out already, Prof. Any chance you might have time to read/post an article regarding the process of such a complaint, as well as your opinion, of the complaint itself and whether it covered all breaches you have noted personally. Also, if whether you believe that the ethics/disciplinary committee will act on it despite any “good ol’ boy” mentality, due to the sheer egregiousness of his offenses to the profession, the community he allegedly serves and the criminal justice system, itself.

          As often as we’ve wanted to see an attorney have to answer for their behavior in some of the cases followed here (O’Mara, Skeletor), I don’t believe I’ve ever seen an article discussing what actually happens when such a complaint is filed and the legal profession’s attitude towards holding it’s own members accountable. Certainly not in such a high profile case which has such an impact on the nation’s ability to believe in the Justice system’s constitutional promise to serve all persons fairly and without bias; and the public interest is both paramount and outstanding. This is going to be fascinating. I wonder how the public will be kept informed of the proceedings, or will we only see the end result?

          Ethics complaint pdf

          Click to access mcculloch-disciplinary-complaint.pdf

    • Nef05 says:

      And…. we have a hat trick.

      Part III in the “giving McCulloch a well deserved kick in the gonads day” – the NAACP Legal Defense Fund has written an open letter to Judge Maura McShane requesting an investigation into McCulloch and his assistant prosecutors with an eye to having the judge appoint a special prosecutor and restart the trial against Ofc. Wilson, as permissible under MO law.

      The group of experts assembled by the NAACP to review the grand jury transcripts “were struck by the deeply unfair manner in which the proceedings were conducted.”

      The NAACP cites three areas of particular concern.
      1. McCulloch and his team “knowingly presented false witness testimony to the grand jury.” […]
      2. McCulloch and his team “presented incorrect and misleading statements of law to the grand jury and sanctioned unlawful juror practices.” […]
      3. McCulloch and his team “provided favorable treatment to the target of the grand jury proceedings.”[…]
      In a footnote, the NAACP cites the law — Missouri Statute 56.110 — that gives Judge McShane the power to restart the case against Wilson.

      I encourage you to read the article. Particularly the exchange between asst. prosecutor Alizadeh and a grand juror under #2. Her word salad is Palinesque, truly a remarkable accomplishment.

  3. racerrodig says:

    I believe the case is far to strong for him to win and between the car jacking and the intended outcome, I can’t see him escaping the death penalty.

    Tragic on all counts.

  4. This case is not about whether he wins or loses. It’s about whether he lives or dies.

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