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Boston bombing

Richard Walker, Boston
January 4, 2015

Ahead of the Marathon bombing trial, prosecutors are confident they have a watertight case. But controversy is raging on questions of life, death and fairness. DW explored the arguments with three law professors.

Boston Marathon Explosion Anschlag 2013
Image: Reuters

The liberal bastion of Massachusetts last held an execution in 1947, when Phillip Bellino and Edward Gertson were electrocuted for murder. The state has repeatedly resisted attempts by death penalty supporters to reintroduce capital punishment. So little wonder that the Department of Justice's (DoJ) decision to let prosecutors pursue the death penalty in the federal case against Dzokhar Tsarnaev has been controversial.

Within months of the attack, the city's leading newspaper, the Boston Globe, expressed its opposition in an editorial. It cited a striking opinion poll showing that 57% of Bostonians said they favored life without parole rather than execution, should Tsarnaev be found guilty, with 33% favoring the death penalty. The numbers weren't just an issue of party allegiance: Republicans – traditionally more supportive of capital punishment – also narrowly backed a life sentence.

Law professor Michael Avery of Boston's Suffolk University is angered by the government's decision not to fall in line with public opinion. "I think it's disrespectful," he told DW. Former Judge Nancy Gertner - now a Harvard law professor - says the DoJ is obliged to consider public opinion when making such decisions. But she points out the argument it would make: "This is a national prosecution and those numbers are unique to Boston. If this had happened somewhere else in the country, the poll numbers would have been different."

Dschochar Zarnajew Anschläge Boston Marathon Watertown
Dzokhar Tsarnaev could face the death penaltyImage: picture-alliance/AP

Jeffrey Addicott has no doubt that pursuing the death penalty is the right decision. He heads the Center for Terrorism Law at St Mary's University in San Antonio, Texas. He told DW, "Justice is about giving people what they deserve. This individual deserves the death penalty. It was a horrendous attack, targeting civilians; [...] It's a high-profile case that has to have a high-profile response."

Death as deterrent?

Michael Avery agrees that the bombing was "a horrible crime - it's hard to imagine anything being much worse". But he sees pursuing the death penalty as more about demonstrating toughness than securing justice, saying it is "meant to portray politicians and prosecutors as people who are going to protect us. But that has nothing to do with protection… Does anybody really believe that future terrorists are deterred by the death penalty? No!"

Addicott disagrees. "One thing that does deter radical Islam is the application of violence. They understand that. On one level, they want to die for jihad, but on another level they understand and they respect violence. They do not respect people who vacillate, negotiate, or try to appease. And that's just the human phenomenon. When you see a tremendous amount of force leveled against you, your movement, or your ideology, it does cause you to pause."

Bombenanschlag beim Boston-Marathon
Three people were killed and more than 260 injured in the bomb attackImage: picture alliance/AP Photo

Impact on the community

But the controversy is about much more than the fate of Dzokhar Tsarnaev. Both Gertner and Avery have spoken out in the Boston media against what a death penalty trial will mean for the community. As Gertner explained to DW, she expects a "lengthy two or three-month trial, with a very difficult jury selection that would precede the trial. And if the defendant is found guilty, there is a penalty phase before the same jury to determine if he would get the death penalty. If he gets the death penalty there will be years and years and years of appeals."

Jeffrey Addicott of the Center for Terrorism Law argues that that cannot be avoided - indeed that it is essential for there to be a "full airing" of a case highlighting the threat of Islamist extremism, which he feels is generally underplayed by the Obama administration. "I think it's a good teaching point to go forward with the trial, to let people see who these monsters are, what motivates them - because we've hit the slumber button on the alarm clock."

The push for a plea deal

Nancy Gertner's solution: the prosecution and defense should agree on a plea deal with Tsarnaev pleading guilty in return for a sentence of life without parole. As the former judge argues, such a deal would not just lead to the same ultimate outcome - it would obviate the need for a trial at all. "There would be a one-day hearing when the judge determines whether or not to accept the plea. In that hearing the government can outline the evidence against him… Then there would be a sentencing hearing before the judge, without the rules of evidence, and all the victims could testify - all the victims could testify. And when that's finished, and life without parole is imposed - the proceeding is over. No appeals are likely."

USA Boston Marathon Anschläge Gedenkfeier
Shock gripped the entire city of BostonImage: Reuters

Avery also favors a plea deal: "I think we can be virtually certain that if the government takes the death penalty off the table, there would be a guilty plea. The evidence is very strong and Tsarnaev has nothing to gain by going to trial if the death penalty is off the table. But he's forced to go to trial if the death penalty is what the government is seeking."

There are plenty of precedents. It is all but certain that the possibility of a plea deal has been explored. And it could yet happen, according to Gertner. "It's possible, for example, that on the first day of jury selection it will be so clear that this will be a very difficult jury to select that everyone will agree that life without parole makes more sense."

It is even possible that the threat of the death penalty is being used by the prosecutors as leverage to extract a plea deal - although Gertner points out that if that were the case, it is likely the prosecution would have made its move by now.

The hunt for impartial jurors

Barring a last-minute plea deal, the proceedings begin on Monday January 5 with jury selection - when the spotlight will immediately fall on new questions. Given the blanket media coverage of the story, will it even be possible to select an impartial jury, which is the cornerstone of a fair trial?

Jeffrey Addicott acknowledges the problem. Potential jurors "have been exposed week after week to the Boston Marathon bomber. His face has been on Rolling Stone magazine! So they're already predisposed." Addicott says the key is a careful jury selection process. Gertner puts it this way: "We live in an Internet age and there is blanket publicity on so many trials now. And essentially the courts have dealt with that by ignoring it: by saying "we can do a trial in these cases, we'll just have elaborate jury questioning and direct the jury to forget whatever they have read."

USA Boston Marathon Anschläge Gedenkfeier
Boston is still struggling to overcome the traumaImage: Getty Images

Even more problematic for Gertner is the fact that virtually all of Boston was affected by the manhunt and lockdown that dragged on for days after the bombing - a traumatic experience. "It’s one thing to say, all of us know about this celebrated crime that occurred across town. It’s quite another thing to say that all of us felt vulnerable to being a victim," Gertner says. "That’s a very different kind of prejudice."

The bid to move the trial

This is why the defense has been pushing for the trial to be moved away from Boston altogether. There is a key precedent in the trials of the Oklahoma City bombers Timothy McVeigh and Terry Nichols - the men behind what was America's deadliest terrorist attack to date in 1995. Like the Marathon bombing, it was seen as an attack on the whole city. Judge Richard Matsch moved the trials to Denver in neighboring Colorado, arguing "There is so great a prejudice against these two defendants in the state of Oklahoma that they cannot obtain a fair and impartial trial… in that state."

Ruling against the Tsarnaev defense's request, Judge George O'Toole dismissed the Oklahoma precedent as "not pertinent." His reasoning was highly controversial. In a scathing Boston Globe op-ed, the prominent civil rights and criminal lawyer Harvey Silverglate said O'Toole "recklessly misread and misrepresented" the precedent.

A further controversy has erupted over timing. The defense has been pushing for an eight-month postponement to digest the huge volume of evidence - including thousands of pages of documents provided by the prosecution last month. This also met with rejection from Judge George O'Toole.

A federal appeals court concurred in a last-minute decision on January 3. In a 2-1 decision, it ruled that the trial should go ahead as planned in Boston on January 5. The dissenting judge Juan Torruella echoed the defense's concerns in his opinion, writing "Such a rushed and frenetic process is the antithesis of due process." On the question of a change of venue he added: "Tsarnaev's argument that the entire city of Boston and its surrounding areas were victimized - as evidenced by the city's virtual lockdown and the images of SWAT team members roaming the streets and knocking door-to-door in Watertown - is compelling."

So now, Boston looks set for a long-drawn out death penalty trial overshadowed by doubts about its fairness.