Boston Bombing Trial: Death Penalty Phase Set to Begin Tuesday

Breaking News Emails

Get breaking news alerts and special reports. The news and stories that matter, delivered weekday mornings.
/ Source: NBC News
By Pete Williams

The same federal jury that convicted Dzhokhar Tsarnaev for bombing the 2013 Boston Marathon must now decide his sentence: life without parole or death by lethal injection.

On Tuesday, his lawyers and federal prosecutors present their opening statements in the trial's second phase. On April 8, phase one ended when the jury found Tsarnaev guilty of all 30 counts resulting from the bombings and the murder, three days later, of a Massachusetts Institute of Technology police officer.

Tsarnaev's defense lawyers will argue that he was only 19 at the time of the bombings — a troubled adolescent, dominated by a violent older brother who radicalized him.

"They're going to characterize him as a flaky young man from a tough family, a family where he didn't get much mother or father attention, where he was influenced by his brother," says Prof. Robert Bloom of Boston College Law School.

"There will be multiple appeals. Looking at it realistically, he's going to die in prison one way or the other."

Prosecutors will argue that his actions meet many of the requirements in federal law for seeking the death penalty — crimes planned well in advance, carried out in an especially cruel manner and targeting several victims, including an especially vulnerable 8-year-old boy.

The government will also argue that Tsarnaev, through his writings in the boat where he was arrested, urged others to commit violent jihad. And they will say he has shown no remorse since then.

The city of Boston braces for the second phase of the trial with no overwhelming call for capital punishment. A poll conducted last month by public radio station WBUR showed 62 percent favored a life sentence, while 27 percent said Tsarnaev should be executed. Massachusetts is one of 18 states that doesn't have the death penalty, but he is being tried in the federal system, which does.

Let our news meet your inbox. The news and stories that matters, delivered weekday mornings.

There's no agreement among the victims who have spoken publicly about what the sentence should be.

"It doesn't affect me, and it's not going to affect my life at all, because I'm never going to get my leg back," said Heather Abbott, who lost her left leg below the knee after the bombing.

But Karen Brassard, who was permanently injured by bomb shrapnel, says Tsarnaev doesn't deserve to live, even in prison.

"He was grown enough, intelligent enough to make the decision knowing what was going to happen to people."

Liz Norden agrees. Her construction worker sons, Paul and JP, each lost their right legs. "I speak for myself. I want the death penalty," she says.

The parents of Martin Richard, the eight-year-old killed by the second Marathon bomb, issued a high-profile call last week for a sentence of life with no right appeal. "Now is the time to turn the page, end the anguish," they wrote in a column published on the front page of the Boston Globe.

"We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours."

Those favoring life in prison also say appeals from a death sentence would stretch on for years.

"He's going to be on death row for decades," says Prof. Nancy Gertner, a former federal judge who teaches at Harvard Law School.

"There will be multiple appeals. Looking at it realistically, he's going to die in prison one way or the other."

Jurors will be asked to weigh the prosecution's reasons for seeking the death penalty against the factors cited by the defense. To impose a sentence of death, the verdict must be unanimous. Anything less means an automatic life sentence.

There can be no hung jury in this phase, says Washington, D.C., lawyer Pete White, a former federal prosecutor.

"A single holdout who refuses to vote for the death penalty will cause him to get a sentence of life without parole, because the government can't retry that part of the case," White says.

Tsarnaev's message in the boat in Watertown said he was jealous of his older brother, Tamerlan, for achieving paradise after dying earlier that day in a police shootout.

Boston Globe columnist Kevin Cullen questions whether jurors should give Dzhokhar Tsarnaev that same outcome:

"It would be supremely ironic if a jury here in Boston would do what he was not willing, not able, to do that night in Watertown, and that is to make himself a martyr."