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Will Dzhokhar Tsarnaev Get the Death Penalty?

The jury that convicted Dzhokhar Tsarnaev on all 30 counts in the Boston Marathon bombing trial will now consider whether he should be executed.
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/ Source: NBC News

The trial of Boston Marathon bomber Dzhokhar Tsarnaev has never really been about his guilt; his own lead defense lawyer told the jury on the first day that "it was him." The bigger question has been whether Tsarnaev deserves to die for it.

The jury that convicted him Wednesday will begin to consider that matter next week, when the penalty phase is expected to begin.

The seven women and five men took less than two days to find Tsarnaev guilty on all 30 counts against him. That may seem like they are prepared to sentence him to death as well. The government has said it plans to call about a dozen victims.

"Convicting on 30‎ charges signals to me that the jury — again, we don't know — signals that the jury might not be so hesitant to vote for the death penalty," Northeastern University School of Law Professor Daniel Medwed told NBC News.

But there other factors that could play in Tsarnaev's favor.

One is Massachusetts itself. The state is historically opposed to capital punishment; it last executed someone in 1947, and in 1984 the state abolished the death penalty. Polls in 2013 and this year found that more Bostonians favor a sentence of life without parole for Tsarnaev, rather than death.

By comparison, the country as a whole is split the other way, with 47 percent of Americans preferring death for Tsarnaev and 42 percent favoring life without parole, according to an NBC News poll.

The jury selection process weeded out people who said they could not keep an open mind about considering the death penalty for Tsarnaev. But that doesn't mean they aren't influenced by the people around them, legal experts say.

"They are breathing the cultural air that generally does not favor this penalty," former federal prosecuctor Caleb Mason told MSNBC. "Thus, they are going to think much longer and harder than would jurors who come from a cultural environment where it is simply understood that murderers should be executed."

Another factor is Tsarnaev's lead defense lawyer, Judy Clarke. She is considered among the nation's most effective opponents of capital punishment, having successfully argued against the death penalty for many of America's worst killers: the "Unabomber," Ted Kaczynski; Atlanta Olympics bomber Eric Rudolph; 9/11 conspirator Zacarias Moussaoui; Jared Lee Loughner, who killed six people and injured Rep. Gabrielle Giffords in a Tuscon, Arizona shooting; and Susan Smith, who drowned her young sons.

Clarke did not put up much of fight during the trial's guilt phase. She's likely saving her firepower for the penalty phase, when she is expected to walk jurors through Tsarnaev's life and mind in an attempt to show that while he was guilty of conspiring with his older brother, Tamerlan Tsarnaev, Dzhokhar was manipulated by him.

"The plan all along has been to say he was involved but not nearly as involved as you would require for someone to be executed for this," criminal defense attorney Christopher Amolsch told MSNBC.

He added, "If anybody can find a way to keep the jury where they need to be in terms of seeing mercy as opposed to the ultimate punishment, it's Judy."

The penalty phase is expected to last a little over two weeks, during which the government will call a dozen or so witnesses who will show "aggravating factors" for the death penalty, including the havoc and pain wrought by the bombings and Tsarnaev's seeming lack of remorse. The defense will follow with witnesses to show "mitigating factors," including his youth, impressionability, and difficult childhood as the son of immigrants from the war-torn Russian Caucasus.

The jury must vote unanimously for the death penalty for it to become Tsarnaev's sentence.

The more days that pass between the two phases , the better it is for Tsarnaev, Medwed said.

"I would ask for as much time as possible between this moment and the beginning of the sentencing phase to separate the jury from emotions of the trial," he said.

Even if he is given the death penalty, Tsarnaev probably wouldn't be executed for years, if not decades. There are many avenues of appeal, including petitions to the U.S. Supreme Court and president.

The last person to be given the dealth penalty by a federal jury was Louis Jones, sentenced in 1995 for the murder of a young female soldier. Both the Supreme Court and President George W. Bush declined to block his execution, which finally occurred in 2003.

— with Pete Williams and Andy Thibault