Tsarnaev to walk the proverbial Green Mile? A primer on the policies and procedures involved in Federal Death Penalty cases

As a longtime criminal defense attorney I have defended many murder cases in state court. I have also defended virtually all possible federal charges in United States District (federal) Court. However, despite the literally dozens, with an "s," of state murder cases I have handled over the years, and the more than 200 federal criminal cases I have under my belt, I have never defended a state or federal death penalty case. This is for two reasons. First, while two of the of the several other states in which I have conducted murder trials (NH and CA) still carry the death penalty—the prosecution in those cases was not seeking it for any of the three pending murder indictments, the majority of my murder cases have been here in Massachusetts, where the Legislature voted down the death penalty for state murder prosecutions. Second, while the death penalty is still authorized for certain federal capital crimes in all 50 states, including Massachusetts, such cases are truly few and far between. This is but one of many reasons the pending domestic terrorism case against Dzhokhar Tsarnaev (Unites States v. Dzhokhar Tsarnaev, No. 13-cr-10200-GAO, i.e., "the Boston Marathon Bombing Case") is both unique and confusing. It is my hope through this blog to use my extensive experience in federal court as both a former federal prosecutor, and a long-time federal criminal defense attorney, to explain the underlying process and answer related questions.

The United States Supreme Court reinstated the death penalty in 1976 in the signal case . This has not precluded legislatures in states like Massachusetts to vote to abolish it. Such votes only apply to the application of state laws and state criminal penalties imposed in state court(s). There are currently some sixty (60) separate federal criminal offenses, as a well as a number of military crimes, that carry the death penalty. These range from treason and espionage to presidential assassination(s). In 1988, the list was expanded to include large-scale drug trafficking; in 1994 it was increased to all types of murder already prosecuted in state court(s), so long as committed under federal jurisdiction (e.g., in national parks or reservations). Other federal death penalty eligible crimes include: causing death by using a chemical weapon or weapon of mass destruction; killing a member of Congress, the Cabinet or the U.S. Supreme Court; willful destruction of an aircraft or motor vehicle causing death; carjacking causing death; causing death by using an illegal firearm; and murder committed by a federal prisoner sentenced to 15 years or more to life. In the Tsarnaev case, seventeen (17) of the thirty (30) counts he is charged with allow imposition of the death penalty if he is convicted, with the government primarily focusing on the death penalty eligible crimes of causing death by using a weapon of mass destruction and/or causing death by using an explosive [device]. Several other applications may include killing person(s) (Officer Sean Collier) aiding federal investigation(s). Notwithstanding Massachusetts' abolition of the death penalty, the fact Tsarnaev is accused of committing a number of federal death penalty eligible crimes in the Commonwealth is what allows the U.S. Attorney here to pursue the death penalty when his case proceeds to trial in federal court on January 5, 2015.

One question I have been asked, both in my capacity as a criminal defense attorney, and also in my role as on-camera legal analyst for FOX25 news, is can someone accused of death penalty eligible offenses plead guilty without going to trial? The answer, as with any crime, is yes. However, whether or not such a guilty plea results in avoidance of the death penalty is entirely up to the prosecution. Here in Massachusetts, we have already had two examples of this with different outcomes. In United States v. Richard Reid, the accused American Airlines Flight 63 attempted shoe bomber, was allowed to plead guilty to the crimes he was charged with in exchange for agreeing to a sentence of life in prison without any possibility of parole (in order to avoid the death penalty). By contrast, in United States v. Gary Sampson, the government would not allow the defendant to avoid the death penalty for the three murders he admitted to committing in exchange for life sentences. Sampson pled guilty anyways, choosing solely to litigate (contest) the penalty phase of his trial. While I will explain the bifurcated nature (guilt phase/penalty phase) of death penalty trials in more detail later in this article, I should address now why it may be that anyone accused of a death penalty eligible crime would admit to it in a case where the prosecution refuses to drop [the death penalty]? The answer from a criminal defense standpoint is that some defendants feel they may stand a better chance at saving their life when all a jury is considering is the ultimate question of life or death, especially in a case where the evidence of guilt is strong, and where they don't want to risk prejudicial spill-over from the same jury that decides the penalty phase, having previously heard the underlying facts in excruciating detail, especially those that are gory, inflammatory, and upsetting. Moreover, in a perceived anti-death penalty state, a defendant may simply feel, in a case where the government refuses to plea bargain, his chances at avoiding the death penalty are better by having the ultimate penalty be the only contested question his jury is asked to consider.

In any event, the first critical stage in a federal death penalty case is selecting what we call a "death qualified jury." Essentially, this means the prosecution is entitled to have a complete jury in which every seated/sworn member is able/willing to impose the death penalty if the government meets all of its requisite burdens. This does not mean they agree in advance that they will impose the death penalty, only that they will, and can, follow the law that permits them to impose it if the government meets its burden of proof and all the related statutory criteria are established. This is common sense since the jury must be unanimous in both its decision about guilt (or innocence) and its decision whether or not to vote for a death sentence. Because, as we say in the defense bar, "all it takes is one" to preclude a finding of guilt [or a death sentence], the law allows the judge and prosecution to be sure there are no "stealth", anti-death penalty, jurors seated. This is one of many reasons Judge George O'Toole has taken the unprecedented step of summonsing some 1,200 potential jurors to the first day of jury selection in the Tsarnaev case, a measure not just necessitated by the intense pre-trial publicity the case has generated or the fact it's a death penalty case, but also because it's a death-penalty case in state where a citizen-elected legislature (which is presumed to reflect the mind-set of a majority of the electorate) previously voted to abolish the death penalty in state court.

Like any federal trial, 12 jurors will ultimately decide both the Tsarnaev verdict and the question of whether or not the death penalty should be applied. Given the stakes, likely tensions, and length of the process, Judge O'Toole will seat another 6 jurors as alternates. Alternate jurors will be used to replace any juror, who for whatever reason cannot serve through deliberations in either phase of the trial. Both the government and the defense will be given twenty (20) peremptory challenges (plus an additional 3 challenges if 5 or 6 alternate jurors are impaneled), which will allow them to remove prospective jurors without having to show cause or give any reason at all; which is something that both sides try to use to their advantage in high profile and/or death cases when they don't feel they are necessarily getting straight or truthful answers from a prospective juror or don't really have a sense where he or she may "be coming from."

Federal death penalty cases, codified since 1994 under 21 U.S.C. § 848(e), et seq., are basically done in two phases: the guilt (evidence) phase and the penalty (sentence) phase. In some ways, they are two separate trials. In the first, the government presents evidence to the jury just as it would in any criminal trial and the jury then determines whether or not the government has proven each and every element of each crime charged beyond a reasonable doubt. If, and only if, guilt is proven beyond a reasonable doubt on any of the underlying death penalty charges, the case then proceeds to the second (penalty) phase. Also, as with all criminal trials, the jury's verdict in the guilt phase must be unanimous.

Unless the defendant was convicted on a guilty plea (as with the Sampson case), or convicted by a sitting judge without jury, or the jury from the guilt phase was discharged "for good cause," the penalty phase is heard by the same jury. Unless otherwise unavailable, the same judge who presided over the guilt phase of the trial, also conducts the penalty phase. As with the guilt portion, the decision remains that of a 12 person jury, presumably the exact same as decided guilt unless any one was replaced for good cause by one of the alternates—-again, a very real scenario given both the tensions involved in any death penalty case and the particular emotions, and projected duration at play in the Tsarnaev case. Instead of again deciding whether or not the defendant committed the acts charged, in the penalty phase the jury is asked to decide: 1.) Whether the defendant acted with one of four mental states set forth in 18 U.S.C. § 3591(a)(2) (e.g., intentionally killed the victim; intentionally inflicted serious bodily injury that resulted in the victims' death, etc.); and 2.) If any one statutorily described aggravating factors, under 18 U.S.C. § 3592(c), exists in the case. Aggravating factors include those I believe the government is likely to focus on in Tsarnaev, as pertaining to homicide: heinous, depraved or cruel manner of committing the offense (detonating a bomb at a public event); grave risk of death to additional persons (269 victims); and vulnerability of victims (8 year old boy; spectators at a sporting event). They may also focus on aggravating factors related to treason, which likewise include grave risk of death.

Not surprisingly, the aggravating factors are presented to the jury by the government/prosecution much like they presented the evidence during the guilt phase (but the judge will guard against repetition). The jury will then consider whether or not any mitigating factors exist, under 18 U.S.C. §§ 3592 and 3593(d). Mitigating factors include: impaired [mental] capacity; duress; minor participant; no prior record; committing the crime under a severe mental or emotional disturbance; and age. Any "other factors that mitigate against death" may also be considered. Mitigating factors are normally presented by the defense and/or defense experts. While it remains too early to know for sure, the nature and contents of certain of the Tsarnaev defense team pre-trial discovery requests suggest they will be focusing their arguments in support of mitigating factors on duress or severe mental or emotional disturbance (e.g., Dzhokhar Tsarnaev was either brain-washed by, or so afraid of his older brother Tamerlan that his acts cannot be deemed intentional); lack of criminal record; and his age at the time of the offense conduct (19).

The jury must first unanimously decide that any one aggravating factor exists in the case. By contrast, only one juror needs to conclude that any one mitigating factor exists. Second, they must unanimously decide "whether all aggravating factor(s) found to exist sufficiently outweigh any mitigating factors to justify the death sentence." See 18 U.S.C. § 3593(e)(3). In other words, the penalty phases constitutes another trial within a trial (with evidence, witnesses and argument) in which the jury's decision to impose the death penalty must be unanimous.

The 1994 Federal Death Penalty Act directs the US Marshal to supervise the sentence in the event death is imposed and contains a provision that expressly addresses the scenario that may happen in the Tsaranaev case, where the death penalty is handed down by a jury in a non-death penalty state. In those situations, the Court will "designate another state, the law of which does provide for the implementation of a sentence of death," pursuant to 18 U.S.C. §. 3596(a). This happened in United States v. Timothy McVeigh. The case was moved to Colorado given pretrial publicity issues, but the death sentence was carried out in Indiana.Such could also be the case in Tsarnaev, if the death penalty is imposed, although actual execution might also occur in a neighboring NE state, like New Hampshire, where, bizarrely, death by hanging is still on the books.

So will Dzhokhar Tsarnaev receive the ultimate penalty? It's way too early to guess, and seasoned trial lawyers like me know better than to predict outcomes before any shred of evidence has been introduced or to possibly discern what will ultimately be the collective judgment of twelve jurors who have seen every scrap of evidence and heard every word of testimony—unlike the rest of us. Besides it's still possible there could be an 11th hour guilty plea. It's not yet guaranteed the trial will, in fact, start in two weeks as currently scheduled, and the issue of whether a fair and impartial jury will, or can be, selected here is still in play, too. What is certain, and can be predicted, is whenever and wherever the Tsarnaev trial gets underway, what goes on the courtroom will be riveting and compelling and will shape our lives and aspects of the Law for years and years to come.

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of all crimes in state and federal courts, including murder, federal weapons and explosives crimes everywhere in Massachusetts, throughout New England, and elsewhere in the United States. Website: