Unless the federal court indulges last-ditch efforts by the defense for further delay, the least interesting aspect of the case against accused Boston Marathon bomber Dzhokhar Tsarnaev will begin this week: the determination of guilt or innocence.
That is the backwards nature of a capital case. In ordinary trials, a jury is there only to decide the question of guilt. When the death penalty is involved, though, the jury also imposes the sentence, usually the task of the trial judge. A death-penalty case is thus a bifurcated trial, and it is the later sentencing phase that really matters.
The Justice Department authorizes capital prosecutions even more rarely than state prosecuting authorities do, and only when there is very convincing proof of guilt for a truly heinous offense. So there is apt to be little, if any, doubt that the defendant is guilty.
But the guilt phase is not wholly without intrigue. For example, the prosecutor can often expect help from defense counsel in establishing guilt. That is almost never the case in a normal trial, where the objective of the defense counsel is to undermine the government’s proof of guilt beyond a reasonable doubt. But in a death-penalty case, evidence that proves guilt can ironically help the defense convince the jury not to impose the death penalty — and in a capital case, defeating the death penalty is the main objective.
Jurors, for example, may be persuaded not to impose the death sentence if the defense can show that the accused was a low-level player in an atrocious enterprise — that he was intimidated by or under the Svengali spell of his superiors. It is anticipated that this is exactly what Dzhokhar Tsarnaev will claim, i.e., the real driving force of the Boston Marathon mass-murder plot was his older brother, Tamerlan. The defense will portray Tamerlan as the real jihadist, a fierce figure whom Dzhokhar feared crossing and felt compelled to obey.
Tamerlan, of course, is not on trial: Dzhokhar killed him by inadvertently running him over with the stolen car he was trying to crash into three Watertown, Mass., police officers who were trying to apprehend the brothers after they had bombed the marathon and killed an MIT police officer. Dzhokhar thus need not be concerned about making trouble for his brother by mounting a defense that highlights Tamerlan’s guilt.
Still, he cannot portray Tamerlan as the main culprit and himself as the intimidated underling without illustrating his own guilt. He is accused of conspiring with, aiding and abetting, and carrying out terrorist acts with Tamerlan. (See the indictment here.) As a matter of law, a person may not show that he is not guilty by reason of compulsion — that he was forced to commit crimes by another criminal — if he was never a captive. Even if we buy Dzhokhar’s claim that he was intimidated and unduly influenced by his brother, he had ample opportunities to separate himself from Tamerlan and even to alert the authorities about the plot.
Showing he was less culpable than his brother will not enable Dzhokhar to avoid a guilty verdict. But it could help him avoid the death penalty. A capital sentence cannot be imposed unless the jury unanimously agrees to impose it during the sentencing phase of the case. The defendant needs to persuade only a single juror that he was such a weakling and so frightened by Tamerlan that he doesn’t deserve to be executed.
It will take many weeks to get to that point. The jury selection scheduled to begin this week is an extraordinary process. Unlike a normal trial, jurors in a capital case must be vetted for their attitudes about the death penalty and their willingness to impose it.
This can be very tricky for prosecutors. When choosing which potential jurors to strike and which to seat in a regular case (the process known as “peremptory challenges”), it is not that hard to sort out solid law-and-order types (potential jurors who will be willing to convict defendants if the government’s proof is strong enough) from those likely to sympathize with criminals or dislike government (potential jurors who will look for reasons not to convict, no matter how strong the evidence is). In a capital case, though, the lines blur. There are many citizens who, while very sympathetic to law enforcement, have deep misgivings about the death penalty.
Capital punishment is one of those things that no one “likes,” even if we see it as appropriate — if not necessary — in certain extreme cases. Let’s assume each juror is an average citizen who is open-minded about capital punishment and who knows a sentence of life imprisonment will be imposed if the jury does not vote for the death penalty. It is much easier to convince such a juror not to impose the death penalty than it would be to convince that same juror to acquit a defendant who is clearly guilty.
And those are just the potential jurors who are forthright about their attitudes — as the vast majority tend to be. Now consider another unusual twist in death-penalty cases: people who are adamantly opposed to the death penalty, regardless of how heinous the offense, and who feel justified in misrepresenting their philosophical objections so they can get on the jury and vote against the death penalty.
It is unusual for jurors to mislead the court about their backgrounds and beliefs; most take very seriously the oath to be truthful, just as witnesses do. But people sometimes are not forthright, and jurors are no exception. What is unusual about a capital case is that more people rationalize dishonesty. They see the death penalty as a moral evil that excuses what they perceive as the lesser evil of concealing their reservations. Or they calculate that a not insignificant percentage of people are philosophically opposed to the death penalty; therefore, precluding such people from serving on a capital case would deny the accused his right to a jury of his peers.
The court and counsel must make exhaustive efforts during jury selection to raise the consciousness — and consciences — of the entire jury panel regarding the obligation to be truthful with the court. There is generally an elaborate questionnaire, which is reviewed by counsel for both sides and by the judge. That review weeds out many potential jurors, who are summarily excused “for cause” (because they have indicated some kind of bias that calls their objectivity into question). The remaining potential jurors are then subjected to searching in-person questioning; in federal court, this is generally conducted by the judge, asking questions suggested by the lawyers. The process of getting a jury of twelve plus some alternates can take several weeks — longer, that is, than most ordinary trials.
The federal death penalty was reinstated in 1988 after a 16-year moratorium, and it became more prevalent (at least potentially) when Congress enacted the Federal Death Penalty Act in 1994. In the 27 years since its reinstatement, only three defendants have been executed. (In August, the Death Penalty Information Center reported that 19 others have been sentenced to death but have appeals pending.) Out of nearly 500 potential death cases approved by U.S. attorneys general, prosecutors ultimately elected not to seek capital punishment (or dropped it after initially seeking it) more than half the time. In the vast majority of the remaining cases, the death penalty was avoided either by plea bargain, by judicial ruling, or by jury preference for a sentence of life imprisonment.
The death penalty is clearly constitutional. There are significant policy arguments for and against it, but it is the law. If any defendant warrants being executed, it would be a terrorist who ruthlessly killed and maimed innocent, defenseless people by bombing a celebrated public event, and followed that up by murdering and attempting to murder police officers while paralyzing a major American city with fear.
Yet, as experience proves, imposition of capital punishment is extremely unusual in federal cases, no matter how heinous the crime and compelling the evidence. It will probably be months before a Boston jury decides whether Dzhokhar Tsarnaev is the rare killer who should be put to death.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.