With Tsarnaev Sentencing Hearing Looming, A Marathon of Legal Proceedings May Be About to Begin

So now that Dzhokar Tsarnaev has been "sentenced" to death on six (6) of seventeen (17) counts for which he was eligible for the death penalty (after the jury returned 30/30 counts guilty verdict against him in the so-called "Boston Marathon Bombing Case"), what happens next? Procedurally, the next step is his actual sentencing hearing, which is currently set for sometime in June.

Essentially a formality, in that the judge must impose the punishment (death) decided by the jury, see 18 U.S.C. § 3594, the sentencing hearing is important in three respects. First, it allows those victims who wish to give victim impact statements a further opportunity to not only be heard, but to confront the defendant with regard to how his criminal conduct affected them and/or family members. Victims and/or their family members have an absolute right to be heard, pursuant to the Crime Victims' Rights Act, see 18 U.S.C. § 3771. So far, the government has indicated that at least 20 of the more than 264 victims, or their family members, wish to be heard at sentencing. Second, upon imposition of sentence, the process of moving the defendant within the Bureau of Prisons (BOP) to more suitable housing than his current posting at the Federal Medical Center (FMC) at Devens, MA can begin in earnest. It is presumed he will be classified to FCI Terre Haut, IN, which is otherwise known as "Federal Death Row." How quickly he will be moved is anyone's guess. In the ordinary course, BOP classification can sometimes take up to 6-8 weeks from the date sentence is imposed for the ordinary federal defendant. In this case, it will likely be much quicker than that; much more in line with the very quick 2 weeks it took for Whitey Bulger to be moved. Third, formal imposition of sentence precedes the formal entry of judgment in a federal case—usually no later than 2-3 days after sentence is imposed. This is important because that is the time the 10 day clock starts to run on the time by which the defendant in a federal criminal case must file his notice of appeal.

Contrary to published reports, an appeal, itself, of a "case in which a sentence of death is imposed" is not automatic. As Timothy McVeigh did after he was sentenced to death for his role in the Oklahoma City Bombing Case that took 168 lives in 1995, Tsarnaev could waive his right to appeal and/or not file any notice of appeal. There is no indication that he will do this, and as is standard, the ten day clock for him to do so won't start to run until after he has been formally sentenced (and his judgment is entered).

What is automatic is review of the case by the appeals court (here the 1st Cir. Court of Appeals) once the defendant's timely files his notice of appeal. The use of the word "shall" under the governing statute, 18 USC s. 3595, is what makes it automatic. Appellate review is not limited to the sentence alone. The defendant may consolidate his appeal of the death of sentence with a direct appeal of his conviction. When an appeal is filed in a federal death penalty case, the Appeals Court considers the entire record, including the evidence submitted during the trial; the information submitted during the sentencing hearing; and the special findings of the jury.

The other "automatic" aspects of an appeal of a federal death penalty case are: 1.) In addition to deciding the substantive and procedural issues raised on appeal, the Appeals Court must also consider "whether the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor and whether the evidence supports the special finding of the existence of an aggravating factor..." [see 18 USC § 3595 (b)(1)] and 2.) the filing of a notice of appeal automatically stays a sentence of death [see 1st Circuit Local Rule 48.0 (c)(2)(A) of the Federal Rules of Appellate Procedure]. If the Appeals Court finds the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor; or that the admissible evidence and information adduced does not support the special finding of the required existence of an aggravating factor; or the proceedings involved any other legal error requiring reversal of sentence, the case is remanded to the trial court for reconsideration or "imposition of a sentence other than death." 18 USC § 3595(c)(2)(C). An automatic stay of execution of a death sentence stays in effect until the Appeals Court issues its mandate.

I'm not a member of Tsarnaev's extremely able trial team, so again, I have no idea if he will appeal. However, given they went through with the entire guilt phase, when they could have pled, and aggressively contested the penalty phase, I believe an appeal is highly likely. I anticipate, at the least (because it can be consolidated), that an appeal will focus on: a.) certain pretrial trial discovery requests for information that the Court (Judge O'Toole) denied; b.) denials of repeated requests to change venue (i.e., move the trial out of the District of Massachusetts); c.) juror challenges that were denied and/or the overall make-up of the jury on (lack of) ethnic/religious diversity grounds; d.) Judge O'Toole's denial of a specific instruction during the penalty phase reminding jurors that only one vote is needed for a life sentence; e.) restricting the scope of Sister Helen Prejean's testimony during the penalty phase; f.) cumulative prejudice from unnecessary and duplicative testimony in the penalty phase of what was previously adduced in the guilt phase; as well as g.) those factors already subject to "automatic review" under 18 USC § 3595(c)(2)(C).

Are there any of the aforementioned possible appellate issues on which I think they will prevail? It's obviously too hard to tell until they are all articulated in briefs and separately supported by record citations and relevant case law. However, I will say the 1st Cir. is surprisingly conservative, for a court whose federal jurisdiction includes Massachusetts and Rhode Island. Moreover, the 24 page verdict sheet approved for the penalty phase by Judge O'Toole was about so thorough and extensive as to appear "bullet proof." Still, it's clear the defense feels particularly strongly about the change of venue denial (and can point to Justice Toruella's dissent in early January as impetus to push the same); indeed, enough so that it may have been the main reason they elected to go ahead with the guilt phase despite essentially conceding their client's guilt – to make sure they preserved it as an appellate issue, which they might not have been able to do had their client pled guilty in favor of proceeding directly to the penalty phase (as Gary Lee Sampson did in 2003).

So what's the time frame here for an appeal? Generally, federal appeals are decided more quickly than state appeals, but with death penalty cases, the appeal process can last for years, and could well stretch into a second decade. This drawn-out and lengthy process is the result of numerous possible legal challenges and procedures including the direct appeal, potential US Supreme Court review, motions for new trial, motions for habeas corpus relief, other collateral challenges, future challenges based on retroactive precedent from issues yet to be decided and/or further developments of 8th Amendment law, all the way to 11th hour pleas for clemency. For corroboration of just how extensive and lengthy the process is, look no further than federal death penalty statistics. According to the Federal Death Penalty Resource Counsel, 59 of 80 defendants sentenced to death since the federal death penalty was reinstated in 1988 are currently appealing their sentences. Moreover, of the 498 total defendants against whom the government originally sought death sentences in the intervening 27 years, only 3 have actually been executed.

In other words, yes, it took 21 months to bring the case to trial; and yes, it took another three months and more than 90 witnesses for the government to obtain guilty verdicts; and after that, (2 weeks later) another 60 plus witnesses and 3 weeks for the jury to unanimously decide to impose the death sentence; but that may end up being a short time compared to the appeals process. The comparison here is apt: by the time all appeals are exhausted, the lengthy process just completed will truly feel like a mere sprint in contrast to the Marathon that has yet to begin.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.