Dzhokhar Tsarnaev: If convicted, will he get death sentence?

This is an archived article and the information in the article may be outdated. Please look at the time stamp on the story to see when it was last updated.

BOSTON (CNN) — It may be a foregone conclusion in the minds of many that accused Boston bomber Dzhokhar Tsarnaev is guilty of murder. A horrific crime: multiple killings, including that of a child, and more than 200 maimed or wounded.

What may be less clear is Tsarnaev’s role in the attack, and whether, if convicted, he will be sentenced to death.

As both sides prepare for his November trial, court filings and arguments by prosecutors and the defense provide a glimpse into their opposing strategy for the penalty phase of the case.

The government says it has video showing Tsarnaev placing a backpack near the finish line, then using his cell phone, moments before the first bomb went off. He walked away and the second bomb went off in front of the camera, officials say.

There is also the note Tsarnaev scribbled on the boat he was hiding in, claiming the Boston Marathon victims were payback for U.S. wars in Muslim lands.

Excerpts of the note open the grand jury indictment. “I can’t stand to see such evil go unpunished;” Tsarnaev wrote. “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 but due to said (unintelligible) it is allowed;” and “Stop killing our innocent people and we will stop.”

In seeking the death penalty, prosecutors cite as an aggravating factor Tsarnaev’s “betrayal of the United States.” They claim that after Tsarnaev received asylum from the United States, the defendant “enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States” by killing and maiming its people.

Leading the defense team is Judy Clarke, a longtime public defender who has represented some of the nation’s most notorious criminals, including “Unabomber” Ted Kaczynski, who killed three; Jared Loughner, who shot and killed six people and critically wounded Rep. Gabby Giffords; and Susan Smith, the emotionally disturbed mother who drowned her two children.

Kaczynski and Loughner pleaded guilty and were sentenced to life imprisonment.

In the Smith case, Clarke argued that her client’s abusive childhood and depression tormented her, causing her to “snap.” Although it convicted Smith of murdering her sons, the jury spared her life.

“She enjoys a wonderful reputation, she fights very hard for all her clients,” said former U.S. attorney David Kelley, who prosecuted terrorism cases in New York’s Southern District. “She’s the model for all defense lawyers.”

Humanizing Tsarnaev is a priority for his defense team, said David Hoose, a criminal defense lawyer who represented Kristen Gilbert, a former Veterans Administration nurse convicted of killing four patients. The jury in that case did not vote unanimously to impose the death sentence. Gilbert was thus sentenced to life in prison.

“There’s always a story to be told, ” Hoose said. “It’s not a story that excuses or justifies what was done. but it explains and allows us to understand as human being to human being what led someone to the point in their life where they could undertake such an act that virtually everyone else finds incomprehensibly horrible.”

The defense has great leeway in presenting its case for the penalty phase. “The Supreme Court has held that pretty much anything related to the defense background, or character, or to the circumstances surrounding the crime” is admissible, Hoose said.

Hoose said he believes Tsarnaev, who was 19 when the crime happened, has a good chance of avoiding the death penalty. “This is a young kid, still impressionable, only a year and a half over the minimum that he would have to be even to be eligible for the death penalty, who is clearly under the influence of an older brother who has been radicalized and who has become extremely violent. What do you do as a younger sibling when that kind of thing is going on in your family?”

In a recent court filing, the defense lawyers sought information prosecutors obtained from the federal government’s surveillance of Tamerlan Tsarnaev. “Any evidence tending to show that Tamerlan supplied the motivation, planning and ideology behind the Boston Marathon attack, and that his younger brother acted under his domination and control, is material,” the defense argued.

Tsarnaev’s defense team declined to comment to CNN, but in a status hearing this week, they called the Tsarnaev family dynamic key to their case. “If the government indictment is true, this is about a family,” defense attorney David Bruck said. The defense objects to having an FBI agent monitor conversations between Tsarnaev and his siblings during prison visits. Judge George O’Toole has indicated he agrees with the defense, but deferred ruling to give prosecutors time to respond.

Since the federal death penalty was reinstated in 1988, three people have been executed: Timothy McVeigh, for the Oklahoma City bombing that killed 168 people; Juan Garza, for three murders connected to drug trafficking; and Louis Jones, for the kidnapping and murder of a female soldier.

According to the Federal Death Penalty Resource Counsel Project, juries have handed down 74 death sentence verdicts since the death penalty was reinstated. However, a judge has formally applied the sentence only 71 times. The disparity comes from defendants’ convictions that were overturned or death verdicts that were vacated before formal sentencing by the judge.

The liberal-leaning nature of Boston-area juries also will bear watching in Tsarnaev’s case. Massachusetts banned the death penalty in 1984. Hoose said in an area that is heavily Catholic, many are inclined to follow the lead of Pope Francis, who opposes capital punishment.

In a Boston Globe poll taken in September, 57% of Boston respondents supported a life sentence for Tsarnaev. Thirty-three percent favored the death penalty.

Lillian Campbell, whose granddaughter, Krystle Campbell, was killed in the marathon bombings, told CNN’s Chris Cuomo, “When they came out with this part about the death sentence … I said, well, I don’t really care what they do with them. Because whatever they do, it’s not going to bring her back,” she said. “I’ll never forget her, ever, no matter how much they say. Or what they do with the guy who did it. So I wouldn’t wish anyone dead. I wouldn’t.” “Even after what he did?” asked Cuomo. “Even after what he did,” Campbell replied.

Prosecutors in the case declined to speak with CNN.

Former federal prosecutor Allison Burroughs said, given the nature of the crime, it’s not surprising the government is seeking the death penalty. “If not in this case, then when?” Burroughs said. However, she said winning a death penalty verdict in Massachusetts is so unlikely it may not be worth the time and resources involved.

Others say the government made the right decision.

“The death penalty attaching to a case of terrorism where people are maimed and killed is certainly a reasonable option,” said Gerry Leone, the former Middlesex County District Attorney who prosecuted “shoe-bomber” Richard Reid in 2002. Reid pleaded guilty before going to trial.

Although Leone said he thinks the defense has a chance of beating the death penalty, the prosecution strategy should be clear.

“The prosecution keeps harping on and keeps drilling home the facts. And the facts are horrible here. Two-hundred-sixty plus people who were hurt and maimed. Three people dead. A police officer in the aftermath of those actions executed,” Leone said. “The government will keep pounding home the facts in this case, which are just horrible from a human perspective.”

Richard Burr, who represented Timothy McVeigh, knows what it is like to lose a capital case. McVeigh was executed in 2001.

“In any case where there is huge public injury, there’s pressure on political leaders to seek the death penalty. There may be pressure on jurors to return a death penalty, even against their better wisdom.” The key, Burr said, is to present the jurors with a detailed narrative of the defendant’s life that can evoke some mercy. “Clarke and her team are masters at getting at a defendant’s life story,” Burr said. Yet “she is also attuned to the critical need for the capital defense team not to ignore the victims.”

“The death penalty deprives people of their humanity,” Burr added. “We have to try to help remind everybody that we’re all in this together.”

™ & © 2014 Cable News Network, Inc., a Time Warner Company. All rights reserved


  • jones1100

    I get he has a ‘story’ but then so do all the victims…and the court will hear about his planning, etc. I can understand his family life, but let also be clear, there are more troubled families than this out there and none ever do what this man did- understanding his situation is just that, doesn’t mean he should not be punished.

  • Kelli

    It must be really hard for the people in the courtroom not to beat the ever living out of that scumhole wanna-be hodgie. I do not believe they should turn to death penalty, then he becomes a martyr. Dont give him the satisfaction.. keep him locked up for life. Furthermore, stop using his age as an excuse 19 years old is plenty old enough to comprehend life & death, he knew what he was doing.. and hodgies are taught at a young age as well.. who knew how long this radicalization took place? He couldve started this years before. Give him no breaks, he deserves no excuses. Build the case, get the scumbag sentenced and get this trial over with so we can focus on healing the victims.

    • Angela Rios

      Give him a break. He’s practically still a young adult. He shouldn’t be put to death sentence. Be considerate.

  • Kelli A.

    Be conciderate? Are you joking? He committed terrorist acts on OUR CITY. A young adult is basically saying his actions were justufied by him being a nieve kid…. when thats NOT the case.. im sorry but at 19 years old we are all nieve but not every 19 year old decides to become a hodgie as a result of child like actions, stop using his age as an excuse for his behaivor! Its an absolute cop out excuse!

    • Angela Rios

      No Kelly, you take a hike. Your argument isn’t even strong enough. I’m not saying he shouldn’t be punished if he did do it, but they need to look deeper into this case. There is something that’s not connecting. Either way, everyone deserves a second chance. Especially someone as young as him.

      • angel-19

        Angela I know that everyone is innocent until proven guilty but this so called kid does not deserve a second chance, the people that he killed don’t get a second chance, people that lost their limbs are not getting second chance why should he? Yes we do need to hear his side of the story what lead him to this madness but there is no excuse he can come up with that will justify what he did. The only reason I don’t want him to get the death penalty is that he will be rotting in jail as long as he shall live, he will be a rat in 4×4 cell and that’s more suffering that death sentence.

  • Kelli A.

    @Angelina rios: everyone does not deserve a second chance. We are not talking about a small robbery or small crime. This is terroristic activity. Building a case is what the court needs, like it or not we have to hear this shmuck hodgies story, its basic protocol. But thats as far as it goes there is no excuse for him especially age. Your blogging drama will not change my opinion. Go be an internet badass somewhere else doll.

    • Bernkastel

      Kelli, If you’re an adult, please act your age. It’s heavily disappointing to witness someone speak in the manner that you do. You shouldn’t be calling Angela anything, especially derogatory terms such as “doll”.
      I’m 16 years old and even I wouldn’t speak like that towards a stranger who was simply expressing their opinion to me.

      What this boy and his brother did to those people will NEVER be justified, no matter what his back story may consist of, but allow me to clarify something that I just wish everyone would gradually come to understand.

      Nobody simply wakes up in the morning and decides that they’re going to commit a horrific crime such as terrorism.
      This boy clearly hasn’t been in a sane state of mind for a while, and nobody knows why except him.
      Maybe he was very submissive and easily manipulated? His brothers influence could have been overwhelming. I’m not making any dark assumptions here, but maybe his brother Tamerlan was well aware of the control he had over his younger sibling and used it to his advantage. Some people are twisted that way, after all.

      Or maybe that isn’t it. Maybe Dzhokhar is mentally ill? That could also contribute to his actions.
      1 in 17 Americans are seriously mentally ill. Most never say a word because they’re afraid of judgement. But, alas, who can blame them? We live in a society where people jump to conclusions almost immediately.
      Also, about 45 % of those with mental disorders (both mild or severe) usually meet the criteria for multiple disorders. This is strongly related to comorbidity.

      Another theory could be the following: Maybe his childhood was traumatic? Maybe he didn’t receive affection from anyone in his younger years, and he tried to compensate for it by earning his brothers approval through doing whatever he said to do?

      My point being, this boy is not a stable-minded person.
      As stated above, no matter what factors contributed to his instability, I also believe that what he did will never be justified, so please don’t take this the wrong way and accuse me of “defending a terrorist”.
      I simply just sympathize with him. I feel as though he must have had quite the misfortunate experience at some point in his life for him to act this way.

      All I’m trying to say to you is that he deserves to be able to tell his side of the story to us, and that we should listen to it, even if he and his defense team embellish it a bit.
      Also…I am in no way requesting or demanding that you change your opinion on the matter. I just thought I’d share my point of view as a youth in this country.

  • Ryan

    First of all berkanstel, shouldnt you be in school instead of creatibg hurricanes on social webpages? Second, I dont think doll is derrogetory, especially since angela couldnt even spell kellis name correctly. And OH PLEASE on the insanity bid. Stop justifying, its frankly pathetic! Go be an advocate for mental illness somewhere else not for some terrorist. Actually kiddo people do wakeup and decide that path…. happens all the time in the middle east. Throwing your google statics wont win you any medals here, especially trying to give that clown a justification through mental illness. Being a wackjob isnt an excuse to join a group of terrorists. Try again.

    • Angela Rios

      Ryan, you make absolutely no sense. Maybe if you read in between the lines, Kelly didn’t spell my name correctly either. I may have misplaced the “I” for a “Y”, but she called me Angelina which is far from my given name. That’s not even the point. The point is, you’re coming into a conversation with nothing to back up your argument. Bernkastel and I are both 16. You act as if we are not doing something educational. Participating in an online debate is better than sitting around and watching t.v. like most teenagers do. Bernkastel has a point about all the reasons that Dzhokhar may have done what he is accused of. These are points he stated that judges most definitely argue in court if you’ve ever actually sat in for a court case before you would’ve witnessed it. There has to be a reason for what he has done and until he gets to state his side of the story, we won’t completely understand. Everyone has their own opinions on this situation. You and Kelli may think he did it and should be punished, but just as many people think that he didn’t do it and shouldn’t be punished, or any other opinion that they may have. If you took the time to read, nobody is forcing anyone to change their opinion, we were just telling everyone our opinion just like you guys did. There is no need for you and Kelli to try putting people down because all they did was state their opinion. Lastly Kelly with your statement, “Your blogging drama will not change my opinion. Go be an internet badass somewhere else doll.” That was unnecessary. In no way am I “blogging drama”. In fact, that statement doesn’t even apply to this conversation. It makes no sense. There is no “internet badass” going on here either. Gosh, you’re so childish. I can’t help but laugh at everything that you and Ryan say.

  • Bernkastel

    What…? In no way am I “justifying” what he did. I even mentioned several times that what he did isn’t justifiable no matter what.
    I’m also not “starting a hurricane”– I’m simply trying to show you another persons point of view. Or in simple terms, my opinion.

    “Starting a hurricane” implies that I was being rude to Kelli, which I wasn’t at all. And shouldn’t insult Angela for spelling Kelli’s name wrong, because you also spelled my name wrong.

    When you said: “people do wake up and decide that path…. happens all the time in the middle east”
    it seems to me like you’re putting all middle eastern people into one group, and that’s a really terrible and stereotypical thing to do.

    Also, in my defense, “google statistics”? That’s quite laughable seeing as though you know absolutely nothing about me, sir.

    I intern with a Criminal Behavioral Analyst, so I actually have to do a lot of research in both the fields of psychology and criminal justice.
    If you find what I say unbelievable, you’re most likely unfamiliar with “Big Picture” schools. Students at these schools attend an internship that best suits their career interests two days a week. Psychology and law enforcement are my main curiosities, thus, here I am.

    Also, Ryan– before you tell that I should “be in school”, consider time zone difference.
    And last but not least, why don’t you return to school? You can’t even spell derogatory* correctly, and your opinions on the matter are not backed by any logical reasoning.

    Why do you feel it necessary to use such a hostile tone towards me? I haven’t attack anybody with words of malice, have I?

    • Angela Rios

      Glad to know that there is another teen here that is stating their opinion about this case. Thank you for defending me.

Comments are closed.

Notice: you are using an outdated browser. Microsoft does not recommend using IE as your default browser. Some features on this website, like video and images, might not work properly. For the best experience, please upgrade your browser.