Jury Sentences Tsarnaev to Death on Some Counts

The jury has returned a sentence of death for Dzhokhar Tsarnaev on Counts 4,5,9,10,14, and 15. See Jim Armstrong on Twitter for each finding.


The counts on which the jury voted for death pertain solely to Lingzi Lu and Martin Richard. The jury did not return death verdicts on counts with Officer Sean Collier or Krystle Campbell.

On the mitigating factors:

  • Only 3 jurors agreed he would not have committed the offense but for Tamerlan.

  • Only 2 jurors agreed it was Tamerlan that shot and killed Officer Sean Collier.
  • Only 3 jurors agreed Tamerlan planned, led, & directed the Marathon bombing.
  • Only 3 jurors agreed he acted under the influence of Tamerlan.
  • Only 2 jurors agreed the government has the power to restrict Tsarnaev's communications from prison with outside world.

On the aggravators, the jury found all had been proven but one. It found Tsarnaev did not make statements suggesting others would be justified doing more violence/terror against the USA.

I'll have more later, but it seems to me some of the jurors' findings were contrary to the evidence. Was there any evidence Dzhokhar was the one who shot Collier? The government clearly has the power to restrict Tsarnaev's communications from prison with outside world.

Added: It looks like at least one of the two jurors who believed Tamerlan shot and killed Collier refused to vote for death of his counts.

I hope the Court now unseals the hundreds of pleadings filed in the case. He certainly has many grounds for appeal, beginning with the denial of the change of venue motion.

Regardless of the ultimate outcome, the next several years in confinement will not be pleasant for Tsarnaev.

Update: Reuters: Only 3 of the 74 defendants in federal court sentenced to death since 1988 have been executed.
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  • Display: Sort:
    FWIW, you actually swayed me, Jeralyn. (5.00 / 1) (#1)
    by Mr Natural on Fri May 15, 2015 at 03:18:34 PM EST
    This was Tamarlan's doing.  The kid went along with it but... well, there's nothing more to say.  Most people are more malleable than they want to believe.

    Thank you Jeralyn (5.00 / 6) (#2)
    by CST on Fri May 15, 2015 at 03:23:14 PM EST
    for the excellent coverage.

    I don't know exactly why but this is really upsetting.  I guess I had just hoped that we were  better.

    I had the same sad, and sort of sick, (5.00 / 5) (#3)
    by Anne on Fri May 15, 2015 at 03:27:49 PM EST

    I guess it's not really over, though, what with the automatic appeal.


    he also gets a habeas (5.00 / 1) (#6)
    by Jeralyn on Fri May 15, 2015 at 03:33:07 PM EST
    (28 USC 2255)after the direct appeal.

    There's a direct appeal, petition for rehearing en banc, writ of cert to the Supreme Court, then his habeas, which he can appeal if he loses.

    He has one year to file the habeas after the last denial of his direct appeal.

    Peter G would know more about this. I'm off to court and will have more later, I'm sure.


    Me too, in fact I came to the site to (5.00 / 5) (#9)
    by ruffian on Fri May 15, 2015 at 03:51:23 PM EST
    say pretty much the same thing.

    Sickening enough that we are even in a society that deliberates the merits of putting someone to death, as if it is a rational, justifiable act.


    I agree (5.00 / 3) (#4)
    by Jeralyn on Fri May 15, 2015 at 03:28:19 PM EST
    The First Question That Popped Into My Head (5.00 / 1) (#13)
    by RickyJim on Fri May 15, 2015 at 05:26:08 PM EST
    when I found out about the verdict, Why did juries in Colorado and Oklahoma reject death for Terry Nichols (who deliberately killed many more innocents) while a Boston jury voted for it for Tsarnaev?  Could the widely reported fact that Tsarnaev appeared indifferent to the court proceedings have something to do with it?

    According to wiki, Nichols is at Florence (none / 0) (#15)
    by oculus on Fri May 15, 2015 at 05:42:33 PM EST
    Supermax. He was not sentenced to death. McVeigh was. Although I do not know why McVeigh was sentenced to death but Nichols was not.

    Nichols was not convicted (5.00 / 1) (#19)
    by Jeralyn on Fri May 15, 2015 at 07:46:03 PM EST
    of first degree murder. The jury opted for the lesser charge of involuntary manslaughter on the 8 federal law enforcement officers. He was acquitted of using a weapon of mass destruction and of actually bombing the building. He was found guilty of conspiring to bomb the building, which carried the possibility of a death sentence, but the jury was divided. Some thought he was minimally involved, others thought he was an equal partner. The jury was troubled by the Government's failure to prove there were no others involved. Some thought the FBI investigation was sloppy. Most importantly, they couldn't agree on his intent.

    In order to return a verdict of death, jurors by law had to unanimously find that Nichols intentionally participated in an act that led to deaths, and that his intentions constituted reckless disregard for human life. They couldn't agree on his intent.


    I suspect his attitude (none / 0) (#18)
    by CaptHowdy on Fri May 15, 2015 at 07:28:44 PM EST
    effected the outcome.

    the Tsarnaev jurors were (none / 0) (#29)
    by Jeralyn on Fri May 15, 2015 at 08:55:50 PM EST
    instructed they could not consider his demeanor.

    Not sure I think that (5.00 / 2) (#30)
    by CaptHowdy on Fri May 15, 2015 at 09:04:05 PM EST
    would be possible for most people.  If only on a subconscious level how could they not?

    The jury was not (5.00 / 1) (#16)
    by KeysDan on Fri May 15, 2015 at 05:55:05 PM EST
    presented with an enviable task, even though they were a death-qualified jury.  The idea of a death-qualified jury, in and of itself, seems an affront to the constitution.  The issue of guilt and penalty should be a responsibility of the citizenry--without  screening for willingness to execute or to inflict what many view as being cruel punishment.  Ascertain the guilt and dole out the punishment taking into account the evolving and/or moral views of the country.

    The state inflicted death of  Dzhokhar Tsarniev will not bring back the dead, or replace limbs, or address nightmares.   Nor, do I see it bringing "closure."   His apprehension and guilt should be closure enough,  The pain of family and love ones will continue to be difficult, the loss will never go away, just, hopefully, move to a different, more life-manageable place.  

    If anything (none / 0) (#17)
    by CaptHowdy on Fri May 15, 2015 at 06:23:41 PM EST
    the decades of appeals will only keep the story from going away.  I totally understand why they might want life just so it would be over to a greater extent than it is now.

    Not so sure about decades of appeals (none / 0) (#22)
    by Peter G on Fri May 15, 2015 at 08:35:53 PM EST
    McVeigh was executed a little over six years after the OKC bombing.

    Interesting (5.00 / 2) (#25)
    by CaptHowdy on Fri May 15, 2015 at 08:46:16 PM EST
    of course I am more or less repeating what I've heard and read.  Saw a telephone interview with the famous guy in the cowboy hat from the day of the bombing.  He said a surprising thing.  He said he was disappointed in the verdict because he thought it was "letting him off easy" as opposed to keeping him locked up forever.
    I guess everyone has an opinion.  I think trashing the jury is unfortunate.  I can't imagine the task given to them.  They sat through months of testimony and saw all the evidence.   I doubt any of them did not take their responsibility seriously.  I find the shocked reaction to the verdict odd.  After all, they all had said they were open to the death penalty.  

    And of course (none / 0) (#26)
    by CaptHowdy on Fri May 15, 2015 at 08:48:37 PM EST
    the "decades of appeals" was actually a quote from one of the families.   The child I think..

    McVeigh waved (none / 0) (#27)
    by Mr Natural on Fri May 15, 2015 at 08:52:22 PM EST
    some of his appeals, whatever that means, according to his wikipedia entry.

    he also waived his appeals after (none / 0) (#28)
    by Jeralyn on Fri May 15, 2015 at 08:54:24 PM EST
    his direct appeal, until the Government was found to have withheld evidence shortly before he died. He asked to be executed within four months. The judge held a hearing and accepted his waiver. I just re-read the transcript the other night, and it was quite thorough.

    He filed a motion to stay the execution for the withholding of documents 11 days before he was executed.


    Thanks for that reminder (none / 0) (#42)
    by Peter G on Sat May 16, 2015 at 01:18:07 PM EST
    I had forgotten that important part of the McVeigh story.

    actually, he did a habeas too (none / 0) (#58)
    by Jeralyn on Sun May 17, 2015 at 04:42:03 AM EST
    he didn't appeal the denial of his habeas --that's when he asked to waive future appeals. curiously, he insisted on keeping the option to petition for clemency open. So did a direct appeal, petitioned for cert, filed his 2255 and then waived....until the disclosure of the documents came out and then he filed for a stay, which was denied.

    If I had to guess I'd say he got the clemency idea from his cell pal in Terre Haute, David Paul Hammer, who petitioned for clemency and ended up getting taken off death row for withholding of evidence in his case.

    McVeigh didn't go to Terre Haute because it wasn't built yet. When it was finished they moved him and 12 others from aound the country to T.H. on the same day. Terre Haute has a unit for the death guys and then a secure communication unit (with a step down program).Since He has SAMs which ususally means you go to the H Unit at ADX in forence or Marion or Terre Haute, but now he has a death sentence so he's likely to go straight to Terre Haute. I pullled all the regs and affidavits by wardens defending challenges. His first year will be miserable --if he's respectful and compliant, and shows no interest n comminicating by mail with outsider Again,if he's good and hasn't bbroken rles. he can do a stop 2 programs. he;ll move up to a step 3 prorgam which getsh


    In a Couple Posts Back... (none / 0) (#67)
    by ScottW714 on Mon May 18, 2015 at 08:56:59 AM EST
    ...Anne posted a link with stats.  Average time between conviction and execution 180 months.

    All capital cases? (none / 0) (#71)
    by Peter G on Mon May 18, 2015 at 10:28:21 AM EST
    Or limited to federal? State court cases take longer.

    It Did Not Specify... (none / 0) (#73)
    by ScottW714 on Mon May 18, 2015 at 11:40:07 AM EST
    ...and I just assumed state case because Fed cases would not be enough to establish an realistic average.

    seem logical (none / 0) (#78)
    by Peter G on Mon May 18, 2015 at 01:27:45 PM EST
    But if the point is to estimate the likely duration of Tsarnaev's appeals, then you want to look only at federal capital cases.

    There is a List (none / 0) (#79)
    by RickyJim on Mon May 18, 2015 at 01:38:04 PM EST
    of current federal death row inmates here. There is nobody sentenced before 1993.  If I had to guess from this data, around 10 years is the average wait for the death chamber.

    It's as if defense case was completely repudiated (5.00 / 1) (#20)
    by TycheSD on Fri May 15, 2015 at 07:49:06 PM EST
    I bought the defense version of what happened before they even presented it because that's the opinion I formed at the very beginning from reading about Jahar Tsarnaev and his family.  That the jury believed so little of what defense presented is shocking.  I feel as though I'm living in a different country.  (Maybe I should move to one.)

    Tamar Birckhead was very critical on Twitter of this idea that Tsarnaev was showing lack of remorse because he was not showing any emotions.  And, I totally agree with her.  It was a self-protecting behavior.  

    This jury was weird.  The forewoman smiled when prosecutors aggressively tried to decimate defense witnesses.  She acted all along that the defense version of events was poppycock.  It's almost like the government chose this jury - not the defense.  One juror supposedly cried at the end - a man.  But why no mercy?  I'm wondering if the forewoman was dominant in the jury room.  She was definitely part of the prosecution's team.

    I don't know what would have mattered.  The government was determined to get a death sentence to show "we are not intimidated," as Carmen Ortiz explained it.  

    I can't imagine how Judy Clarke must feel.  I think Miriam Conrad was in shock.  The two men - Watkins and Fick, appeared grim.  

    It's like the fix was in.  That's how it seems.  And, this president is making me sick more and more all the time.  I will NOT support Hillary if she supports the death penalty.  That's it.  I'm done with choosing the lesser of two bad candidates.  

    This is now a major cause for me.  It took this  young man's case for me to even pay attention to who's being executed and what our prisons are like.  I didn't even know about the Supermax before this.  It has revealed to me an America that is in worse shape than I imagined.  

    Did They Jury Understand Their Job? (5.00 / 2) (#21)
    by RickyJim on Fri May 15, 2015 at 08:33:36 PM EST
    Deciding whether each element of a charge has been proven beyond a reasonable doubt seems to be a clear task in comparison to what has to be decided in determining if a death penalty is warranted.  From the previous thread:
    In order to return a verdict of death on any count, the jury must first find for that count that Tsarnaev was over 18 at the time the act was committed, and that Government proved at least one gateway factor and one statutory aggravating factor beyond a reasonable doubt.

    There are also six non-statutory aggravating factors, but the jury can't consider them unless it has already found the government proved one gateway factor and one statutory aggravating factor beyond a reasonable doubt. Also, the gateway factors are not part of the weighing process -- they are just a threshold the government must meet for the jury to even consider a death sentence.

    I've made a couple of passes through that previous post before giving up trying to put the task into my own words.  I have a hunch that the people on the jury were no smarter than I am and decided the punishment on just how much loathing they had for Tsarnaev.

    I don't think the jury loathed him. (none / 0) (#72)
    by Juanita Moreno on Mon May 18, 2015 at 11:12:06 AM EST
    This case isn't an obscure killing in a dark alley where the witnesses might not have gotten a clear view of the perpetrator. Many people are against capital punishment because of the possibility of mistaken identity. That's not a consideration in this case.

    Regardless whether or not Tamarlan planned it, Dzokhar Tsarnaev "going along" isn't a spur of the moment decision situation akin to being in the car when your brother convinces you to participate in a robbery or something. This is an act that requires forethought based on politically ideology. Dzokhar maybe have been impressionable or manipulated by his older brother, but his ultimate decision to commit murder and terrorism indicates he has beliefs that override any empathy or consideration of the lives of innocent people, especially children.  


    It's not as simple as that..... (none / 0) (#75)
    by NYShooter on Mon May 18, 2015 at 12:30:55 PM EST
    "Many people are against capital punishment because of the possibility of mistaken identity."

    It's a question of who, and what, we are as a country. Most enlightened criminologists understand, and agree, that violence begets violence. Who can deny that many prisoner suffer much brutality at the hands of their "keepers," and/or their fellow inmates? And, since a great majority of inmates eventually are released, it doesn't require much imagination to understand that their view of society upon release will be much more negative than when they were first incarcerated. The death penalty is, simply, a statement that we, as a country, accept savagery as an acceptable policy.

    Virtually all advanced countries world-wide have eliminated capital punishment as a policy of revenge. Certainly LWOP is more than adequate punishment for even the most heinous crimes.

    Unless, of course, revenge, which we deny, is the true goal.


    I did not read that comment (none / 0) (#76)
    by CaptHowdy on Mon May 18, 2015 at 12:40:49 PM EST
    as disputing what you say.  But as a simple assessment of the facts of the case as a response to the seeming confusion of some.

    And, I didn't take it as disputing my comment. (none / 0) (#80)
    by NYShooter on Mon May 18, 2015 at 02:09:54 PM EST
    I agree with J.M. and just added to it.

    I thought that was pretty clear.


    may understand that violence begets violence and believe it's not right to kill someone because they killed someone else, but I'm wouldn't say that revenge is the motivation.

    I think a lot of people may be against the death penalty because they are concerned about mistaken identities. It's one thing to find out decades later that you put the wrong guy in jail, but it's a whole other thing if he was put to death.

    In this case, it's clear Dzokhar Tsarnaev committed this heinous crime. The defense was trying to convince the jury that his brother manipulated him into doing it, as if he couldn't think for himself. The jury didn't buy it. They apparently believe that this man acted with foresight, was intelligent enough to understand what he did and had political motivations for his actions.

    I doubt revenge has anything to do with it, and this penalty likely won't deter others in the future. How do you stop people who think that killing and dying is religious glory?

    I think the death penalty decision (and support of it in this case) has a lot to do with wanting to move on.


    Sad, but not unexpected, IMHO. (5.00 / 1) (#31)
    by Donald from Hawaii on Fri May 15, 2015 at 09:16:36 PM EST
    Revenge appears sweet in our conception but proves sour in our application, which serves only to rot our own souls from within.


    Second Guessing the Jury (5.00 / 1) (#34)
    by RickyJim on Fri May 15, 2015 at 09:42:05 PM EST
    Here is Seth Stevenson over at Slate:
    I did find some of the jury's reasoning, as recorded on the verdict form, baffling. Only three out of 12 jurors agreed with the defense team's contention that Tsarnaev would not have committed any of his crimes if not for the influence of his older brother, Tamerlan Tsarnaev. That's nuts. Tamerlan was clearly in the driver's seat, in my view. Without Tamerlan, I think Dzhokhar is three bong hits deep and playing Xbox this afternoon. Likewise, only five jurors agreed that Tamerlan had become radicalized first and then encouraged his younger brother. Again, I'm not sure what trial the rest were watching--to me, the evidence was clear that, however radical Dzhokhar eventually became, Tamerlan was the one who arrived there first.
    Anybody here willing to defend their reasoning?

    No defenders here (5.00 / 1) (#36)
    by TycheSD on Fri May 15, 2015 at 10:07:52 PM EST
    Like I said, I wonder if the jury forewoman bamboozled these people or dominated them.  No doubt in my mind that this kid was a "terrorist" for maybe 6 months max.  His brother's computer evidence alone proves his fanaticism and the length of time he was interested in jihad.  Frankly, I think he finally wore down his brother with his constant haranguing.  

    I agree with Seth Stevenson at Slate (5.00 / 1) (#39)
    by TH71 on Sat May 16, 2015 at 10:36:45 AM EST
    I don't want to bash the jury (and I'm not saying anyone here is), but I do not know how they came to this decision. I couldn't agree with Seth Stevenson's comments more--were they watching the same trial I was? I've been following the case from early on, but even if I wasn't, I thought the defense presented very clear evidence that Tamerlan was the leader and Dzhokhar followed.

    I do wonder if the defense had put Janet Vogelsang (expert social worker who analyzed him) on the stand it would have made more of a difference. She was listed as a witness but never took the stand. Maybe defense focused too heavily on Tamerlan and not enough on Dzhokhar himself? Talking about Tamerlan was necessary, but perhaps the jury needed to know more about Dzhokhar in 2012-13.
    I also note that the jury saw evidence we did not because it was deemed to gruesome. Perhaps there was something they saw in the autopsy photos for example, that simply did not allow them to return a verdict of life.

    But in general, I do feel this case was tried too quickly and emotions were still too high. And too much of the story was kept from the jury (triple murders in Waltham, for example, in which Tamerlan was a suspect). Prosecution also admitted they still don't know where the bombs were built and there are questions about the explosive material itself.

    Defense repeatedly asked for more time in addition to a change of venue. Perhaps trying the case too soon created too strong a feeling for vengeance rather than justice.


    Extremist material on Tamerlan's computer (5.00 / 1) (#41)
    by TycheSD on Sat May 16, 2015 at 12:56:55 PM EST
    Yes, Seth Stevenson's article was pretty much how I saw things.  The material on Tamerlan's computer alone was so revealing and such a contrast to what his brother was into.  

    I also wonder if more should have been made of FBI failures to detect Tamerlan's increasing radicalism.  The trip to Russia, the activity on his computer, the way he was behaving around town - what are they monitoring anyway?  Are we getting our money's worth?  Jahar could have alerted someone to what Tamerlan was planning, but would the nature of their relationship even make that a possibility?  That's maybe where Vogelsang's testimony would have been valuable.

    I heard reporter Susan Zalkind on PRI say that the case is heartbreaking - and I think she means heartbreaking because of Jahar as well as the victims.  She lives in Cambridge and knows people who knew him well.  One family close to Jahar thought the merciful thing would be the death penalty.  I understand how they would feel that way.


    Somebody Please Explain Something Basic (none / 0) (#40)
    by RickyJim on Sat May 16, 2015 at 11:05:17 AM EST
    Since I wasn't able to decipher the jury instructions I don't understand why 3 jurors agreeing that Tamerlan was the driving force behind the crime isn't enough to rule out the death penalty for Dzhokhar.  Why was that question put to the jury if it doesn't seem to effect what the penalty should be?  If all 12 agreed, would the penalty automatically have been LWP?

    That's not how it works (none / 0) (#43)
    by Peter G on Sat May 16, 2015 at 01:26:05 PM EST
    The jury first finds (determines as factually accurate) what it believes to be the aggravating and mitigating factors. But then it weighs the mitigation against the aggravation, subjectively, to reach its decision. The mere existence of mitigation does not per se rule out a capital verdict. If the jurors agree unanimously that the aggravating factors outweigh the mitigating factors, then the verdict is supposed to be for death.

    I've got another question, Peter. (5.00 / 1) (#45)
    by Mr Natural on Sat May 16, 2015 at 02:52:28 PM EST
    I'm surmising (guessing) from what I've read that the counts on which he was not death-sentenced were LWOP by default.

    How are simultaneous life and death sentences resolved?  I use Logic for a living and I'm not seeing Schrodinger's cat or a viable superposition of states anywhere in sight.  Does case law or explicit legislation reconcile this problem?  Does a death sentence specifically override a life sentence?


    In effect, the life sentences are triggered (none / 0) (#48)
    by Peter G on Sat May 16, 2015 at 03:08:04 PM EST
    only if the death sentence is overturned on appeal, but the life sentences are not.

    Some More Details, Please (none / 0) (#44)
    by RickyJim on Sat May 16, 2015 at 01:56:03 PM EST
    Thanks for that Peter G.  Is the first stage: each juror decides which aggravating and mitigating factors, on the list the judge gives them, are factually true beyond a reasonable doubt?  Can they bring up others not on the list?  Then is the vote on whether aggravating or mitigating predominates decided by each juror on his own determination of which are factually true?  

    There seems to be something very unfair here.  Can it be that if a juror thought it was only more likely than not that Tamerlan ran the whole show, then they could not factor that opinion into their life versus death verdict?


    It's complicated (none / 0) (#47)
    by Peter G on Sat May 16, 2015 at 03:06:26 PM EST
    I linked to the governing statute a few days ago. Any aggravating factor must be found beyond a reasonable doubt and the finding must be unanimous. Only aggravating factors of a kind listed in the statute can be offered. No other aggravating factor, other than the ones found unanimously and b/r/d, may be considered by any juror in the final weighing. Any one or more jurors may find a mitigating factor to exist, and need only do so by a preponderance of the information presented. The statute suggests some possible mitigating factors but there is no limitation on what can be presented at the hearing as mitigation. Any juror or jurors who do find a mitigator then may consider that mitigator in the weighing.  Only if the jury then unanimously finds that the aggravating circumstances found by all of them "sufficiently outweigh" the mitigation that each of them finds "to justify a sentence of death," may the jury then return a verdict of death. So I think it is fair to say that the process is strongly weighted in favor of life.

    Aggravating factors (none / 0) (#49)
    by TycheSD on Sat May 16, 2015 at 03:31:48 PM EST
    If a juror felt that most of the aggravating factors were proven beyond a reasonable doubt, but was sympathetic to the defense's mitigating factors, even if the aggravating factors outweighed the mitigating factors in severity or importance, you could still vote for life, correct?  I mean, you might say, "yes, he put a bomb down near a child," but I believe there were factors in play that make him less morally responsible for his actions because of the overwhelming influence of his brother.  Therefore I think life without parole is more suitable."  Correct?

    I Mostly Get It Now (none / 0) (#52)
    by RickyJim on Sat May 16, 2015 at 07:03:48 PM EST
    Thanks for your explanations Peter G.  Just a couple of things bother me now about the process.

    1. Why is the jury asked to fill in how many found for each mitigating factor previously proposed or added by a juror, as on page 16 of this proposed form. Where in the legal process in this information needed?

    2. U.S. Code § 359 says the following
      The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.
      It seems that what was meant is that a juror can accept any mitigating factor he or she feels is supported by a preponderance of the presented evidence.

    Is is hoped that somebody on the jury will clear up soon why only three jurors thought that  "Dzhokhar Tsarnaev would not have committed the crimes but for his older brother Tamerlan." is supported by a preponderance of the information.

    The supposed purpose of the verdict form (none / 0) (#61)
    by Peter G on Sun May 17, 2015 at 10:52:36 AM EST
    is to guide the jury through the decisionmaking process in a way that maximizes the prospect that they will make their decision in compliance with the inevitably and undeniably complex instructions, and thus with the governing law. Some defense lawyers, on the other hand, believe that step-by-step verdict forms improperly limit the power of the jury to act as the "conscience of the community" and "do the right thing" even when it does not seem to comport with the letter of the law.

    Can the Defense Possibily Appeal (none / 0) (#63)
    by RickyJim on Sun May 17, 2015 at 12:02:55 PM EST
    on the grounds that the jury did not follow instructions?  The evidence that they didn't was that when filling out the form, they gave the perverse result that only three of the twelve found that each of the following were more likely than not in view of the information available to them:

    1. Dzhokhar Tsarnaev acted under the influence of his older brother.
    2. Whether because of Tamerlan's age, size, aggressiveness, domineering personality, privileged status in the family, traditional authority as the eldest brother, or other reasons, Dzhokhar Tsarnaev was particularly susceptible to his older brother's influence.
    3. Dzhokhar Tsarnaev's brother Tamerlan planned, led, and directed the Marathon bombing.
    4. Dzhokhar Tsarnaev would not have committed the crimes but for his older brother Tamerlan.

    I don't understand. How does that (none / 0) (#64)
    by Peter G on Sun May 17, 2015 at 12:44:43 PM EST
    constitute "evidence," in your view, that the jury did not follow their instructions? I am guessing that you think those statements are all clearly true, and therefore a majority of the jury must have not followed instructions. What instruction? The instruction to vote in accordance with what they are persuaded is true? Honest people can disagree, in the light of complex human behavior, on matters as to which there cannot be conclusive proof (e.g., the third Sunday in May, 2015, is the 17th), even with respect to questions that seem clear and obvious to you. A juror, having seen the photos and videos of Dzhokhar immediately prior to and virtually during the commission of the offense, and hearing about his conduct and behavior afterwards, for example, could answer those questions differently from how you or I think we would have.

    America is not now safer (5.00 / 1) (#37)
    by lawyerjim on Sat May 16, 2015 at 12:17:38 AM EST
    As there will likely be Americans killed in retaliation.  However, that is not the reason the sentence is wrong,  The sentence is wrong because killing is wrong.  It's that simple.

    Let me give my opinion, fwiw (5.00 / 3) (#46)
    by NYShooter on Sat May 16, 2015 at 02:57:30 PM EST
    Boston, that bastion of "far left Liberalism," the home of "do good, feel good, finding the root of all problems," the epicenter of Higher Learning: Harvard, MIT, BC, scholars & housewives sculling up & down the Charles River at dawn. Boston, the epitome of enlightenment, and the Far Right's worst nightmare, the prime example of everything that's gone wrong with America, Lucifer's Home, to be more precise.......that Boston is overwhelmingly opposed to the death penalty!

    (.......for the rest of the country that is, but, when it happens here, and on Marathon Day, no less, well.......)

    I would say Boston is still largely (5.00 / 2) (#50)
    by CaptHowdy on Sat May 16, 2015 at 04:43:54 PM EST
    against the death penalty.  The poles show that.  The last I saw was 18% for death.  I doubt you will find a much higher percentage against anywhere.
    These people were clearly carefully selected. They had all said they would consider death.  

    I know Howdy (5.00 / 1) (#51)
    by NYShooter on Sat May 16, 2015 at 05:51:31 PM EST
    I'm just wondering what made this killing so much more heinous than other murders that a jury drawn from a population of 92% anti-death penalty citizens came to this conclusion?

    I guess what I'm asking is, would this jury render the same verdict if, by some magic, the crime was committed in let's say, Cleveland?

    My question is, did geography have anything to do with it?

    Not really expecting an answer, I surely don't know, and I doubt anyone else does either.


    I think the nature of this crime (5.00 / 1) (#54)
    by ruffian on Sat May 16, 2015 at 07:47:57 PM EST
    had a lot to do with it. The local people could easily see themselves as a victim of this crime, in a 'there but for the grace of god go I' way that is not true for most murders. I think opposition to the death penalty may fade in the face of that. I think that factor rather then the media coverage was the best reason to attempt a change of venue.

    Exactly, I agree (5.00 / 1) (#55)
    by NYShooter on Sat May 16, 2015 at 08:35:09 PM EST
    And, precisely why, imo, a change of venue should have been granted.

    Also, arguing for a change of venue (5.00 / 2) (#57)
    by Towanda on Sat May 16, 2015 at 09:22:14 PM EST
    even more, in my mind, was not only that potential jurors could imagine themselves as victims of the explosion but also that everyone in a large part of the city (was it even the entire city?) was a "victim" of the search, which shut down the area for hours, while people had to worry if it would be their campus where a cop would stop them, if it would be their backyard where the brothers would be found.  In addition to so many locals who were at the marathon, that was a terrifying day that directly affected many who were not at the marathon.

    I don't think opposition to the death penalty (none / 0) (#68)
    by CST on Mon May 18, 2015 at 09:17:56 AM EST
    faded in the city at all - if anything, polls showed an increase in support for LWOP as the trial went on.

    The jury was specifically chosen from a group of people who accept the death penalty.  One might even suggest that if you hold those views in a place with strong local opposition, your personal pro-death penalty stance may be stronger than someone with a "cultural" pro-death penalty stance.  I do think there is a problem with having a "death qualified jury" in a place with strong local opposition, because you are disqualifying too many people right off the bat.

    Also, the Boston Globe coverage at least was relentlessly anti-death penalty throughout the trial.

    But yes, it certainly felt personalized in a way most crimes do not.  I think in some ways that's also why people are taking this verdict hard.


    I Think Captain Nailed It... (none / 0) (#70)
    by ScottW714 on Mon May 18, 2015 at 10:28:03 AM EST
    ...when he said something like if you have the DP and you are going to use it, there is no better case.

    I am not summarizing his words very well, so I will put in a way that I took it.  If you are going to go for the DP, then load they jury will people who said they could vote yes for it, the result in a terrorism case in which random bombs exploded in public and killed innocent people, is going to almost always be for death.

    The real argument is why to vote 'no'.  That is easy for most of us in that we would always vote 'no', but for people who could do it, the only reasons to vote 'no' was his age and his brothers influence, which even to me is hardly enough considering the crimes which he admitted to.  

    If you don't do it in this case you might as well take it off the books as few cases are more compelling.

    IMO it should be taken off the books, but we are not that advanced as a society yet.  I think it will take several cases like this where the jury votes 'no' before that discussion will happen.

    IOW they won't take it off the books until juries stop using it.


    As Howdy already pointed out (5.00 / 1) (#65)
    by Peter G on Sun May 17, 2015 at 12:52:47 PM EST
    The jury was not selected "from a population of 92% anti-death penalty citizens." It was selected from the subset of the population of Massachusetts voters and drivers (not Boston, but rather Massachusetts as a whole, that is, the federal district, or at least the eastern part of the district, if they divide the jury rolls that way) who are not categorically opposed to the death penalty, and thus could swear to the judge during jury selection that they could "follow the law" that requires them to vote for death if they reach certain conclusions.

    Was admitting guilt bad strategy? (5.00 / 1) (#60)
    by TycheSD on Sun May 17, 2015 at 10:48:12 AM EST
    The effect of admitting guilt was that the defense challenged only a few government witnesses.  Shouldn't some of the evidence been challenged?  Shouldn't some doubt as to guilt on certain counts been created?  Particularly on the Collier death, why wasn't the guy on the bike questioned?  He was the only person who put Jahar at the scene.  

    And more should have been made of the FBI's failure to detect Tamerlan's increasing radicalism.  It was a monumental failure!  Why not put the government on trial for that?  Add to that suspicion of the lack of police follow-up to the Waltham murders and the fact that they never questioned Tam about them.  What if the defense had established that Jahar had very good reason to be afraid of his brother?

    Now, the fact that the defense admitted guilt will damage Jahar's chances on appeal.  It's possible he could get a new sentencing trial but, unless I'm mistaken, the admittance of guilt pretty much precludes him being able to start over.

    I also think Judge O'Toole was permitted to turn his courtroom into a forum for the victims and the community to achieve a catharsis.  Maybe the ritual of the trial is part of its purpose, but the level of blood and gore the prosecution was allowed to present because of modern advances in technology and surveillance made it seem the jurors were transported to the bomb site and experienced it themselves.  It was extremely prejudicial.

    I think most legal experts thought Judy Clarke admitting "it was him" was brilliant at the time because it was thought it would encourage the jurors to trust her.  But judging from what the jury said on the verdict form, they didn't trust her anyway.  They believed almost nothing about her case.

    The fact that the verdict (5.00 / 1) (#62)
    by Peter G on Sun May 17, 2015 at 11:08:03 AM EST
    was massively disappointing absolutely does not mean the defense team adopted "a bad strategy." Do not forget that they faced overwhelming odds from the get-go, in light of the undeniable aggravating circumstances and indisputably evidence of guilt on the most horrific charges. I don't understand the point of your suggestion, in this context, that fighting the Collier charges, as if they arose in a separate, stand-alone context, might have been a good strategy.

    I don't think (none / 0) (#69)
    by Reconstructionist on Mon May 18, 2015 at 09:57:25 AM EST
     the sentencing verdict indicates that the jurors did not "trust" Clarke. People can trust a person and believe she is candid and sincere without agreeing with her as to how the evidence should be viewed and weighed.

      Whenever a strategy is unsuccessful it's worthwhile to raise questions about it, but the mere fact a strategy did not deliver a positive outcome doesn't mean it was a mistake to employ it. Obviously, she was confronted with the reality that there was extremely strong-- reasonably viewed as overwhelming-- evidence of guilt. She also obviously realized that the government  was going to be able to present highly compelling evidence as to aggravating factors during the sentencing phase.

       In light of that reality, the choices to concede guilt and to more or less let the evidence of aggravating factors enter without challenge in order to put as much of the jurors' attention as possible on mitigating factors-- and in a posture where the mitigating evidence is being presented from a defense that has not previously tried to refute the irrefutable strikes me as quite sound.

       I said before the trial began that this would be by far Clarke's most difficult DP case because not only was the evidence of guilt and aggravating factors immensely strong, but the evidence of mitigating factors was weak both in terms of "proof," and "persuasive" value to the extent it was accepted.

       She had to play the hand she was dealt and that the jury did not find the paltry mitigating evidence was sufficient to outweigh the aggravating factors is neither surprising nor attributable to a poorly presented case.



    Not Clear That it was a Matter of Weight (none / 0) (#74)
    by RickyJim on Mon May 18, 2015 at 12:20:19 PM EST
    of aggravating factors swamping the mitigating ones.  As I and others have pointed out, the jury's verdict form indicated that nine of the twelve thought that the mitigating factors relating to Tamerlan being the driving force were not even more likely factually true than false.  Unless this is explained, I won't say I understand their decision.  Were they so determined to vote for death that they would simply deny that there were mitigating factors that had to come into the weighing task?

    That would be (5.00 / 1) (#83)
    by Reconstructionist on Mon May 18, 2015 at 05:29:49 PM EST
     what I meant about the defense evidence being weak as to proof as well as persuasive force even if accepted.

       Saying the dead guy, who as the jury is well aware can neither present his story nor  be punished, caused the defendant to commit  such a cruel and wanton act by sheer force of personality is obviously a tough sell.

      That was certainly the primary theme, but more because of the lack of anything better not because it is a particularly good one.

       As I said, Clarke had to work with the facts and they were very bad facts-- in pretty every way imaginable.

      The verdict does not mean that Clarke did not do a good job or that the jury did not follow the law based on their conscientious evaluation of the evidence.

       I find it  peculiar that quite recently people here were criticizing the media and even victims and their families for having and expressing thoughts about the case when they did not sit through every minute of the evidence and now people who didn't sit through a second of it  presume to question the good faith of the jurors who sat through every minute of it.



    I'm Not Saying That (none / 0) (#84)
    by RickyJim on Mon May 18, 2015 at 06:16:20 PM EST
    If they had admitted on the verdict form that more likely than not Tamerlan was the motivating force and his brother wouldn't have done it without him, as the evidence clearly showed, but still Dzhokhar should die for participating, then I wouldn't have a problem.  In fact three people are the jury were honest enough to express that opinion.  

    Now as to what I really think: this is more evidence juries should never be asked such a question.  A panel of judges is  more capable of determining if a sentence is fair by considering what has been the penalty for similar crimes and they have to explain their reasoning in writing, too.


    You keep saying this (none / 0) (#85)
    by CaptHowdy on Mon May 18, 2015 at 06:26:50 PM EST
    "the evidence clearly showed".

    I'm not sure what you think it means but let's cut to the chase.

    It didn't.  It didn't to me.  It didn't to the jury.

    It's been explained to you that the fact that you disagree with the verdict is not grounds for appeal.  It's not rocket science.  The jury disagreed with you.


    It was a hanging jury (none / 0) (#86)
    by TycheSD on Mon May 18, 2015 at 10:42:25 PM EST
    They were inflamed, according to Kevin Cullen and David Boeri.  It was the nature of the evidence - extremely graphic, almost to the point that the jury was at the marathon when the bombs exploded.  The prosecution evidence was so filled with blood and gore, the defense had to show something pretty compelling to counter that, and they didn't have it.  

    The thing is, that's what bombs do - they tear people apart.  Pressure cooker bombs are built for that effect, but did the jury ever think about what bombs in war do to the people the U.S. kills?

    I would bet we are going to see an examination of the jury forewoman who was bad news from the beginning for the defense.  I can't believe they let her through.  


    that is not relevant (none / 0) (#87)
    by nyjets on Tue May 19, 2015 at 12:49:52 PM EST
    ' Pressure cooker bombs are built for that effect, but did the jury ever think about what bombs in war do to the people the U.S. kills?'

    That statement is completely irrelevant to the case at hand and should have no influence on the jury decision, one way or another.


    Maybe (none / 0) (#77)
    by jbindc on Mon May 18, 2015 at 01:07:55 PM EST
    Because you are looking at this case through a couple of lenses:  1) you weren't sitting in the courtroom day after day and actually hearing and seeing the evidence presented, but only reading about it and hearing about it on the news, and probably like most people, through venues with which you agree with their bias (such as this blog's),  and 2) you are against the death penalty, so no matter what the jury said, or what box they checked, you aren't going to completely understand their verdict.

    And the mitigating factors may be the reason he did not receive a sentence of death for ALL the charges, but only some (not that it matters if the sentence is upheld).


    strategy? (none / 0) (#5)
    by thomas rogan on Fri May 15, 2015 at 03:29:37 PM EST
    Maybe it would have been better to have the defendant testify rather than using the stealth strategy.  Of course, this is coming from a non-lawyer.
    It's probably better in death cases with no dispute as to guilt to have the initial lawyer be an overworked, newly graduated public defender, so if a key defense strategy backfires then an appeal could be lodged based on "incompetent counsel".

    ineffective assistance (none / 0) (#7)
    by Jeralyn on Fri May 15, 2015 at 03:34:41 PM EST
    of counsel claims are made in habeas petitions, not direct appeals. (With rare exceptions). Most appeals courts won't entertain that argument in a direct appeal.

    Nor would anyone suggest that the defense (5.00 / 4) (#8)
    by Peter G on Fri May 15, 2015 at 03:48:15 PM EST
    be presented by any but the best lawyer available. That sort of "sandbagging" strategy is a prosecutorial/judicial fantasy, not an actual practice of defense lawyers or defendants. It is always better to win at trial than to have a good issue for appeal.  And that's me speaking as a full time criminal appeals lawyer for more than 30 years. (I also disagree with the implicit suggestion that a public defender is probably a worse lawyer than a private practitioner of similar background and experience. The public defender is somewhat more likely to be highly motivated by a personal dedication to the cause, is somewhat more likely to have colleagues and institutional resources to draw upon, and is more likely to be a specialist. And finally, inexperienced attorneys are not permitted to handle capital cases anymore, in most places, with one exception: if the defendant chooses that lawyer and hires him/her.)

    Not sure (none / 0) (#10)
    by jbindc on Fri May 15, 2015 at 04:02:54 PM EST
    Why you classify his claim as a "prosecutorial/judicial fantasy. My guess is the LAST thing the prosecution and judge want is to have to redo the sentencing phase of any death penalty case that results in a verdict of death because of an ineffective  representation of the convicted.  Seems like it's more appropriate to that it is a fantasy of those who oppose the death penalty in the hopes that the condemned gets a second bite at the apple.

    Perhaps I wasn't clear (5.00 / 2) (#11)
    by Peter G on Fri May 15, 2015 at 04:10:36 PM EST
    I view it as a fantasy of some prosecutors and judges that defense counsel deliberately commit errors of the kind that could harm their clients' chances of success, in order to give them grounds for appeal and thus a second bit at the apple.

    Ah, thank you (none / 0) (#12)
    by jbindc on Fri May 15, 2015 at 04:50:19 PM EST
    "second bite at the apple..." (none / 0) (#56)
    by Mr Natural on Sat May 16, 2015 at 09:16:55 PM EST
    Sounds more like a second chance for the snake to bite you.

    So there are no longer (none / 0) (#14)
    by oculus on Fri May 15, 2015 at 05:38:23 PM EST
    dp defense attorneys whose clients swear the attorney was sleeping or drunk during the trial?

    Many, many fewer than 10-20 years ago (5.00 / 2) (#23)
    by Peter G on Fri May 15, 2015 at 08:41:03 PM EST
    Thanks to aggressive efforts by the defense bar and civil rights groups to improve the standards for capital defense. By no means is the problem solved. (Only abolition of the death penalty will entirely solve the problem.) But to be frank, the standards for capital defense counsel, as well as typical performance of counsel, are far better -- overall, but hardly universally -- than they were not that many years ago.

    From the NYTimes (none / 0) (#32)
    by CaptHowdy on Fri May 15, 2015 at 09:21:09 PM EST
    Eric M. Freedman, a death penalty specialist at Hofstra University Law School, said that the relative speed of the verdict could provide the defense with two possible grounds for appeal: "the failure to grant a change of venue, despite the overwhelming evidence the defense presented about community attitudes in Boston," he said, and "the failure to instruct the jury that if a single juror refused to vote for death, the result would be a life sentence."

    I had not heard this.  Seems almost unbelievable they would not know this.  Is this unusual ?

    Also (none / 0) (#33)
    by CaptHowdy on Fri May 15, 2015 at 09:24:23 PM EST
    the change of venue thing seems more difficult to me in light of public opinion.  Something like 18% believing he should get the death penalty.  Doesn't seem to support the need to move.

    But that's just me.


    There were a couple who bought defense argument (none / 0) (#35)
    by TycheSD on Fri May 15, 2015 at 10:04:26 PM EST
    If they did, would they still support death?  Is it possible they were under a mistaken impression?

    The following BBC perspective (none / 0) (#38)
    by Mr Natural on Sat May 16, 2015 at 04:18:31 AM EST
    ends with a disturbing observation.

    Boston in shock over Tsarnaev death penalty

    Daniel Medwed, a professor at Northeastern University School of Law in Boston, says the jurors made a calculus: "At the end of the day they probably just conducted a balance - that the horror of the crime outweighed any argument that he should be spared."

    After the sentencing was delivered, the jurors left the room in single file. A moment later, guards led Tsarnaev through a side doorway.

    He walked out of the room in the same way he had done before - with a slight swagger and in high spirits, as if he were going to a place that is fun and exciting and full of marvel.

    the new place (none / 0) (#53)
    by thomas rogan on Sat May 16, 2015 at 07:40:08 PM EST
    I suppose that if he is executed that he thinks that he qualifies for the 70 virgins in paradise or whatever.

    Noah Feldman of Harvard thinks Tsarnaev will die (none / 0) (#81)
    by TycheSD on Mon May 18, 2015 at 02:57:44 PM EST
    I read this morning a very depressing article by Noah Feldman of Harvard for Bloomberg.  At this point, the mood of the country the way it is, and the firm response from Loretta Lynch on Friday after the verdict, I am inclined to agree with him.