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Death Penalty for Dzhokhar Tsarnaev in Anti-Execution State Brings Complications, Not Closure

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A federal jury has sentenced 21-year-old Dzhokhar Tsarnaev to death by lethal injection for setting off bombs at the 2013 Boston Marathon that killed three and injured more than 260. The sentence was issued in Massachusetts, a state which has banned the death penalty since 1987 and has not carried out an execution since 1947. Polls show 85 percent of Bostonians oppose the death penalty for Tsarnaev, as well as 80 percent of Massachusetts residents. The jury in the case was “death-qualified,” meaning each member had to be open to considering the death penalty, and anyone who opposed it could not serve. Tsarnaev’s lawyers are now expected to appeal. The process could take more than a decade to finish. Since the federal death penalty was reinstated, just three federal prisoners have been executed, none since 2003. We host a roundtable with three guests: James Rooney, president of Massachusetts Citizens Against the Death Penalty; Eric Freedman, professor of constitutional law at Hofstra Law School, who has worked on many death penalty cases; and Denny LeBoeuf, director of the ACLU’s John Adams Project, who has 26 years of experience as a capital defense attorney.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We begin today’s show in Boston, where on Friday a federal [jury] sentenced 21-year-old Dzhokhar Tsarnaev to death by lethal injection for setting off bombs at the 2013 Boston Marathon that killed three and injured more than 260. The sentence was issued in Massachusetts, a state which has banned the death penalty since 1987 and has not carried out an execution since 1947. Polls show 85 percent of Bostonians oppose the death penalty for Dzhokhar Tsarnaev, as well as 80 percent of Massachusetts residents. But the death penalty was allowed because it was a federal trial. In a statement, the ACLU of Massachusetts said, quote, “Today’s verdict does not reflect the values of the majority of people in our Commonwealth. … [It] is an outlier, and does not change the fact that Americans increasingly reject capital punishment,” unquote.

During the sentencing phase of the trial, Tsarnaev’s lawyers focused on presenting witnesses who could convince jurors he should be sentenced to life without parole instead of death. They argued Dzhokhar Tsarnaev was a, quote, “good kid” who fell under the influence of his radical older brother, Tamerlan, and that he is now remorseful. One of the witnesses called was Sister Helen Prejean, a Catholic nun whose story was told in the 1995 movie Dead Man Walking. She met with Tsarnaev five times, said he told her of the bombing victims: quote, “No one deserves to suffer like they did,” unquote.

Ultimately, prosecutors prevailed in convincing jurors Tsarnaev should be put to death. After the jury deliberated for more than 15 hours and announced its verdict Friday, U.S. Attorney Carmen Ortiz addressed the media.

CARMEN ORTIZ: Our goal in trying this case was to ensure that the jury had all of the information that they needed to reach a fair and just verdict. We believe we accomplished that goal and that the trial of this case has shown the world what a fair and impartial jury trial is like. Even in the wake of horror and tragedy, we are not intimidated by acts of terror or radical ideals. On the contrary, the trial of this case has showcased an important American ideal, that even the worst of the worst deserve a fair trial and due process of law. Today, the jury has spoken, and Dzhokhar Tsarnaev will pay with his life for his crimes. Make no mistake: The defendant claimed to be acting on behalf of all Muslims; this was not a religious crime, and it certainly does not reflect true Muslims beliefs. It was a political crime designed to intimidate and to coerce the United States.

AMY GOODMAN: At least one of the federal jurors was reportedly in tears when the verdict was read. The jury was “death-qualified,” meaning each member had to be open to considering the death penalty; anyone who opposed it could not serve. Tsarnaev’s lawyers are now expected to appeal. The process could take more than a decade to finish. Since the federal death penalty was reinstated, just three federal prisoners have been executed, none since 2003.

[Tsarnaev’s defense attorney, Judy Clarke, has previously negotiated plea agreements that spared the life of her high-profile clients facing the death penalty in federal cases, including Jared Loughner, who killed six people when he tried to assassinate Congresswoman Gabrielle Giffords; Ted Kaczynski, known as the Unabomber; Eric Rudolph, charged in the Centennial Olympic Park bombing; and 9/11 suspect Zacarias Moussaoui.]

For more, we’re joined by three guests. In Boston, James Rooney is with us, president of Massachusetts Citizens Against the Death Penalty. In March, he helped organize a symposium called “The Tsarnaev Trial: The Federal Death Penalty in Abolitionist Massachusetts.” Here in New York, Eric Freedman is with us, professor of constitutional law at Hofstra Law School. He has worked on many death penalty cases. And in New Orleans, Denny LeBoeuf is with us, director of the ACLU’s John Adams Project, former director of the Capital Punishment Project. She has 26 years’ experience as a capital defense attorney.

We welcome you all to Democracy Now! I wanted to begin in Massachusetts, where the Boston Marathon was. James Rooney, you’re with Massachusetts Citizens Against the Death Penalty, but can you explain—I think there’s a lot of confusion around the country right now—why if in Massachusetts, where there is no death penalty, the death penalty was considered, and the response this weekend in Boston, and Massachusetts overall, to Dzhokhar Tsarnaev getting the death penalty?

JAMES ROONEY: Well, as you explained earlier, Amy, the—this is a federal case, and the federal government, because it’s its own sovereign, gets to have its rules applied in any state, even states that don’t have the death penalty, so that here, with a death-qualified jury, as you mentioned, you had 12 people from the community who said they were willing to impose the death penalty if the prosecution showed it.

In terms of the reaction here, I think it’s somewhat of a surprise, given the poll numbers that you mentioned showing that so many people in this state oppose the death penalty, not simply generally, but in this case. So, it doesn’t reflect community sentiment here. And it also—the jury appears to have acted without knowing that the family of the young boy, eight-year-old Martin Richard, who was killed in the bombing and whom—seems to have been the focus of a number of people I talked to who thought that if there was a reason to sentence Dzhokhar Tsarnaev to death, it was because of the killing of a young child. The Richard family, after the guilt version—portion of the case had ended, wrote a letter, which was published in The Boston Globe on the front page, saying that they preferred a life sentence in this case. The prosecution in this case emphasized its view that the victims of this crime deserved to have Dzhokhar Tsarnaev put to death, including the—particularly for the killing of this young child. And so the jury acted with that in mind, but without knowing that the Richard family opposed a capital sentence.

AMY GOODMAN: So, in fact, Denny LeBoeuf, the pool that was chosen, of jurors, can you explain how that took place? Because you’re talking about choosing from a true minority of people in Massachusetts, if 85 percent of Bostonians are against giving the death penalty. How many jurors came out, and what was the pool that was chosen from?

DENNY LEBOEUF: It’s part of the unfairness of this system and the sort of convoluted position that the prosecutors have to put this jury in and how this process occurs. You have to asked the jury—it’s a process called death qualification. You have to ask the jury, “Can you consider a death sentence?” And they’re told, “Don’t tell us how you’re going to vote, but tell us that you can seriously make a death penalty a possibility if at the end of this process you’ve convicted him of a death-eligible offense.” And having picked some death-qualified juries in a very Catholic city, New Orleans, you watch as you lose a lot of Catholics, most of your African-American and other people of color—you lose all the people who, even for non-religious reasons, don’t have a strong sense that the authorities, that the government, is always right and always tells the truth and always gives you the straight angle on what’s going on and what the facts are. And you’re instead picking a jury from a very small, unrepresentative, very conservative, conviction-prone pool. And it’s the central unfairness of this process, that couldn’t be more dramatic in this case.

AMY GOODMAN: Is this grounds for appeal?

DENNY LEBOEUF: No. I mean, it’s certainly—I answered too fast. It’s not grounds under current Eighth Amendment jurisprudence. It should be. It’s a basic unfairness. And I think, as the numbers get stronger, as the United States moves closer and closer to abolition of the death penalty, which we will get, there may be revisiting of some of the decisions. We’ve certainly seen that in the process of fighting this penalty for many, many years. The court has looked at a lot of issues and come away with a need.

AMY GOODMAN: We’re going to break and then come back to this discussion. We’re speaking with Denny LeBoeuf in New Orleans. She is with the ACLU. In Boston, Massachusetts, James Rooney is with us, with Massachusetts Citizens Against the Death Penalty. And we’ll be speaking with Eric Freedman, professor at Hofstra Law School, about the conviction and sentencing to death of Dzhokhar Tsarnaev, the 21-year-old convicted in the deaths of three people and the injury of over 260 in the 2013 Boston Marathon. Stay with us.


AMY GOODMAN: We are hosting a roundtable discussion on the federal jury’s decision in Boston to sentence Dzhokhar Tsarnaev to death by lethal injection. In Boston, James Rooney is with us, president of Massachusetts Citizens Against the Death Penalty. In March, he helped organize a symposium on “The Tsarnaev Trial: The Federal Death Penalty in Abolitionist Massachusetts.” Here in New York, Eric Freedman is with us, professor of constitutional law at Hofstra Law School. He has worked on many death penalty cases. And in New Orleans, Denny LeBoeuf, who is director of the ACLU’s John Adams Project, former director of the Capital Punishment Project. We welcome you all to Democracy Now!

Some of the survivors of the Boston Marathon bombing expressed relief at the verdict. This is Karen Brassard.

KAREN BRASSARD: If feels like we can take a breath and kind of actually breathe again. You know, without even realizing it, you’re holding your breath. And once the verdict came in, it was like, OK, now we can start from here and go forward and really feel like it’s behind us.

REPORTER: Are you happy with the verdict?

KAREN BRASSARD: “Happy” is not the word I would use. There is nothing happy about having to take somebody’s life. I’m satisfied. I’m grateful that they—that they came to that conclusion, because, for me, I think it was the just conclusion. But there’s nothing happy about any single bit of this situation.

AMY GOODMAN: The youngest victim of the Boston Marathon bombings was eight-year-old Martin Richard. His parents wrote a front-page opinion column for The Boston Globe last month in which they urged the federal government to drop its pursuit of the death penalty for Tsarnaev on the grounds that the appeals process would prolong their mourning. Bill and Denise Richard wrote, quote, “We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.” They conclude by saying, “We believe that now is the time to turn the page, end the anguish, and look toward a better future—for us, for Boston, and for the country.” Eric Freedman, you’re a constitutional lawyer of Hofstra Law School. Can you talk about the instructions to the jury?

ERIC FREEDMAN: Yes. That’s not a technical problem. It builds on what Denny LeBoeuf was saying about the very unrepresentative nature of the jury in this case. In light of that, it’s incredibly important for the jury to know that a single holdout juror can block the imposition of a death sentence and make it be that there will be life without any further proceedings on penalty. The judge was asked to instruct the jury specifically that, so that they would know the rules that apply, and refused. And—

AMY GOODMAN: Explain—say it again.

ERIC FREEDMAN: The rule is different at guilt and at penalty. At guilt, if there’s a hung jury, you can, if the prosecutor wants to, retry the defendant on guilt and go through the whole thing all over again. And Etan Patz in New York has been a recent visible example. Penalty is not like that in a death case. If a single juror insists on life, and therefore the jury cannot unanimously come to death, then it’s life—period, done, end of story. And that gives a huge incentive to a juror who’s being overwhelmed by her fellows to hang tight, as opposed to thinking, “This is useless, because, after all, it’s only going to be retried again, and they’ll probably sentence him to death again. Who needs it?” If the juror knows, “I can stand firm, and there will be life,” the juror has a lot of incentive to do that. And yet, although that is the rule, the judge refused to tell the jury that it was the rule, which takes an unrepresentative jury and has it make its decision in the dark.

AMY GOODMAN: Well, explain exactly what the judge said.

ERIC FREEDMAN: He just didn’t tell them what would happen if they failed to agree. He said, “You need to agree,” period, and left them to speculate that, “Oh, well, if we don’t agree, eventually they’ll just have to do this again.” He just refused to give them the correct and true answer as to what would happen if they didn’t agree, leaving them to speculate.

AMY GOODMAN: Denny LeBoeuf, can you talk more about the significance of this, instructing the jury what happens if they vote for the death penalty, what happens if they vote for life in prison, and what it means if there is a holdout?

DENNY LEBOEUF: [inaudible] typically tell the jury, look, the United States Supreme Court has said that the decision and the penalty of a capital case is a reasoned, moral judgment. It calls on an individual juror to examine the whole life—short though it’s been—of the offender, as well as the circumstances of the crime, and to make a moral judgment based on their own morality, on their own perception of what is the appropriate punishment. Is this person, as young as he is, the worst of the worst? And what the instruction that Professor Freedman is talking about tells the jury is just simply the state of affairs. That is that if one juror, for reasons that are good to her, good, important to her, meaningful to her, says, “No, life in prison without probation, without parole, without release,” that is the appropriate punishment, and if I simply tell, respectfully, my other jurors, “Fellow jurors, I disagree,” that will be the sentence. And that is a matter of law, and jury instructions are supposed to tell the jury here’s the law.

AMY GOODMAN: Was that raised with the judge? And explain how much of this trial was public and how much of it was sidebar. How much do you know what happened?

DENNY LEBOEUF: I really can’t comment on that. I don’t [inaudible]—

AMY GOODMAN: Eric Freedman, can you comment on that?

ERIC FREEDMAN: Yes. This particular issue was so important that defense lawyer David Bruck went out of his way in open court to repeat to the judge this instruction—said, “Your Honor, we reiterate our demand for this instruction,” and he read it, in a vain effort to catch the attention of the mainstream press, which failed to pick up on this point. And the judge said, “I’ve already ruled on that, in chambers.” We had long arguments about that, as we now know, away from the press and out of the public eye, in which he refused to give the instruction. And—but we do know, from the transcript, that—and from what was said in court—that the defense explicitly asked for this, and it was explicitly refused by the judge, on the basis of considerations which he didn’t tell us. He just said, “What I told you in chambers.”

AMY GOODMAN: Is this grounds for appeal?

ERIC FREEDMAN: Oh, there’s no question that the failure to give that instruction, in a situation where it has been given 71 times in federal death penalty cases, including the only two others ever tried in Massachusetts, will certainly be made prominent in the appeal.

AMY GOODMAN: And that appeal would be of the sentence, not of the verdict?

ERIC FREEDMAN: Well, that particular aspect of the appeal will go to the sentence.

AMY GOODMAN: The age of Dhzokhar Tsarnaev, 21 years old now, if you, Denny LeBoeuf, can talk about the significance of his age when he committed this act?

DENNY LEBOEUF: Yeah, he was 19 years old. He was—he was a kid. It was a terrible act. But the United States Supreme Court has recognized, recently, when we belatedly joined the world in saying you can’t execute or death sentence people under the age of 18—they recognized that we’ve advanced in the neuroscience of understanding what every parent who’s raised a teenager knows, that at some point you look at the best kids in the world and say, “What were you thinking?” We now know that the answer to that is “What was he thinking with?” And what he was thinking with was a 19-year-old brain. It is an undeveloped brain. It is not fully—we are not fully developed at that age. And you look at these actions, and you look at the horror of them and the terrible consequences of his act, but that’s precisely one of the problems that kids have, is they can’t gauge consequences of their act. They’re not equipped to do that yet.

The other point about his youth is that it’s very hard for those of us who have lived some decades on this planet to ever say that somebody as young as this has no redemptive possibilities, that there is no way that this person could never redeem himself and have a life that’s worth living, even though that life will always be behind bars. And the Supreme Court recognized that in fairly recent decisions. The universal understanding of the neuroscience is that this kid’s brain—I always look at it this way: If you compare a kid at 19 with me, he’s got better eyes, better reflexes, better hearing, better—you know, everything is better about his physical being, but he can’t rent a car for another six years, and I can rent one anywhere I want to, because my judgment is better.

AMY GOODMAN: The issue of the SAMs, if you could explain what SAMs are—special administrative measures—and how we come to know who Dzhokhar Tsarnaev is? I mean, there were a number of people who spoke in the sentencing phase—his teachers, people talking about his life. But for most people in this country, I think there’s very little understanding of what was allowed to be said in court. The major issue in the sentencing part of this trial was whether he was remorseful. We only know this from one person, from Sister Helen Prejean, who said that Tsarnaev—she had met with Tsarnaev five times. She said they spoke about his crimes, as well as his victims, and that he said, quote, “No one deserves to suffer like they did.” She said Tsarnaev lowered his eyes, his voice sounded pained. She said she could see the emotion in his face, and says she came away believing that he’s, quote, “genuinely sorry for what he did.” Talk about the significance of what was allowed to be said in open court.

DENNY LEBOEUF: Well, I think my friend Eric may be better equipped to talk about the legal effect of the SAMs on this trial, but I do say that, to some extent, the characterization of him as a terrorist and that extra designation is a—it’s a bit of a red herring. It is not—we’re very familiar, those of us who have been looking at capital cases for many years, with seeing our clients, the defendants, portrayed as some sort of monster, because you can kill monsters, you can kill the non-human. And terrorism is another—another description to throw at somebody you want to say is a monster. He’s an extra-bad person, an extra-terrible murderer, the worst of the worst, because he’s a terrorist. As far as the legal effects of the SAMs on this case, Professor Freedman may know more than I do.

AMY GOODMAN: Professor Freedman?

ERIC FREEDMAN: It is more psychological than legal. The special administrative measures, the SAMs, was something that was invented out of whole cloth by the U.S. government in the few days after 9/11, when they suddenly decided that if you are suspected of a terrorist offense, then attorney-client privilege is not for you. And as you know, subsequently, we decided, you know, self-incrimination rights are not for you, and many other things, if you pose a threat to the United States. Good old due process, which got us through the Revolutionary War, isn’t going to make it in the new age. And that thereby insidiously expanded to anything that could be plausibly called terrorism, which is just, as Denny LeBoeuf said, another epithet to hurl at people so that the kabuki drama sort of reinforces itself. You produce all these guards with machine guns, and you make the world think the guy is very dangerous.

In terms of what could be said at the—this, in the penalty phase of this trial, that is something which is now buried deep in the record on appeal. We talk about, well, there will be an appeal about the failure to change venue, there will be an appeal about the failure to give this instruction. All the other stuff that is buried in this record, that’s going to result in a brief of over a thousand pages on appeal, we don’t know about yet. Many of the things that the defense may have been complaining about that they weren’t given access to put together that mitigation case, because they couldn’t get a visa to Russia, hypothetically, or because other efforts were made to block evidence, almost by definition, we don’t know about yet. We don’t know because, in many cases, the lawyers haven’t been allowed to say. And second of all, it just hasn’t come out yet. And so—


ERIC FREEDMAN: And so, it’s—

AMY GOODMAN: Explain the logic. I mean, you—the way it is argued, these special administrative measures, is you don’t want a, quote, “terrorist” sending a message out to his followers. But when you’re talking about the issue of whether he was remorseful or not, if he expressed great remorse in the defense team, were they allowed to convey this? And who was setting the rules? The defense team is versus the prosecution. Is the prosecution the ones that are trying to show that he has no remorse, the very ones who are setting the SAMs, saying that he cannot say this?

ERIC FREEDMAN: I believe, from what’s now public, that the attempt to keep Sister Helen off the stand was maybe on a completely different set of grounds. We know that there was passionate, closed-door argument as to whether she could testify or not, but I don’t think it had anything to do with national security. I think the—I mean, I don’t know. But it would appear that the judge decided, as a matter of death penalty law, that it’s much more risky to keep the defense from putting on some testimony that they want to put on about remorse than to give in to whatever the prosecutor was arguing. Whether the prosecutor was arguing national security or whether the prosecutor was arguing irrelevance or hearsay, we don’t know. But on that small point—

AMY GOODMAN: Which wasn’t a small point. This presumably was the point the jury was weighing, is how much remorse he had.

ERIC FREEDMAN: Yes, OK. On that, the defense won that point, right? The defense—I mean, Sister Helen got to testify.

AMY GOODMAN: So—and the prosecution are the ones who were setting the rules on what can be said about this—

ERIC FREEDMAN: No, that’s really not quite right. The SAMs relate to access to the prison and to the prisoner and—but not to presentation in court—

AMY GOODMAN: And what can be conveyed.

ERIC FREEDMAN: No, in court, that’s the judge’s ruling. And you saw the judge had the final word on that.

AMY GOODMAN: Venue, finally—let’s put this question to Denny LeBoeuf—the issue of Boston, the scene of the crime, being the venue for this trial, the attempt to move it out of Boston. Other venues were put forward. What about this? And is this grounds for appeal?

DENNY LEBOEUF: It certainly is grounds for appeal. The defense took a fairly extraordinary action of trying to use the mandamus process to get this in front of the appellate court ahead of time. It was a—observed from the outside, it just was an inexplicable ruling. When you combine that with sort of saying, if the community that suffered the greatest harm is supposed to be the community, for some reason, that they are going to suffer the fear of prejudice to the defense and to a fair trial by having it in this community, where no one was unaffected by the hunt for the bombers and for the ensuing lockdown of the whole city or by the horror of the consequences of the bombing—if you’re going to do that, and then you turn and take a totally unrepresentative proportion of that community to weigh in on the conviction and the penalty, it stands fairness on its head. So, the people who have religious opposition to the death penalty—two million Bostonians identify themselves as Roman Catholics—then you should say to those people, “You get to say—we’re going to have this trial here. You get to say whether or not you think he was guilty.” And if the prosecution can’t find 12 jurors who can examine guilt and innocence, but cannot consider the death penalty, then I guess they can’t get a death penalty in this community, because this community doesn’t have a death penalty. Massachusetts hasn’t had one. So, I think that saying we’re going to do it in Massachusetts, we’re going to do it in Boston, but we’re going to pick a jury from Boston that doesn’t represent this city in any—in a very important way, is unfair, clearly unfair.

AMY GOODMAN: Well, we’re going to leave it there. We’re going to continue, as information comes out from what the jurors thought and what happens next, of course, continue to follow this case. Denny LeBoeuf, I want to thank you for being with us, of the ACLU John Adams Project. Thank you very much to James Rooney of Massachusetts Citizens Against the Death Penalty and Eric Freedman, professor at Hofstra Law School here in New York.

This is Democracy Now! When we come back, Ralph Nader. Stay with us.

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