Saturday, May 16, 2015
My Sunday Feeling On Saturday
Beloved: I am jumping the gun a bit as I have a busy Sunday and won't have time to fool with this after today.
Yesterday a federal jury returned its verdict in the penalty phase of the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing. And they showed him no mercy as they unanimously recommended that he be put to death.
At this point, a clarification, and not an entirely useless one, is in order. Most accounts that I have read refer to the jury "sentencing" Mr. Tsarnaev to death. This is incorrect. Only the judge pronounces the sentence. The sentencing hearing will be held at a later date, which as far as I know has not been set as of this writing. Theoretically, the judge doesn't have to have to agree with the jury verdict, although surely he will in this case. But the pronouncement of the sentence is within the strict province of the judge, not the jury. Indeed, the jury has been discharged of its grim duty by the Court. They are done. And undoubtedly glad of it.
It is the same situation with a guilty plea. I have seen a few in my day, mostly as I was waiting around to do business that I had with the Court. Guilt or innocence ( or more accurately "not guilty) is a legal conclusion. If the judge accepts the guilty plea (which he or she does not have to do) the Judge advises the Defendant that "I accept your plea of guilty and I hereby find you guilty."
I have been asked if I am surprised. I am and I am not. I am mildly surprised in that Massachusetts has no death penalty at the state level and the folks there have a long history of opposition to it. Indeed, most polls indicated that most Bostonians wanted Tsarnaev to catch life imprisonment instead of capital punishment.
But I am not surprised in that, first of all, a person who sits on a jury in which the death penalty is sought has to be "death qualified." In other words, he or she must advise the Court whether or not they could issue a death penalty verdict in a capital case. If they cannot, they are disqualified from serving. Which might strike you as stacking the deck against the Defendant if not completely perverse. You are not alone. But perverse though it may be, it has been held constitutional.
After all, swabbing the condemned man's arm with alcohol prior to inserting the needle that will administer the poisons that will kill him is likewise perverse. But it is part of the procedure. (Theoretically, there is always the chance that a Stay may be issued before the button is pushed. It is not as perverse as letting the condemned choose their last meal. But still.)
I am basically opposed to capitol punishment. Especially as it is administered at the state level. However, if anybody does it the right way, or as right as it can be done, it is Uncle. In the first place the local US Attorney doesn't have the authority to seek the death penalty in a criminal case unless the Attorney General of the United States signs off on it. This implies several levels of review entirely consistent with the gravity of the situation.
Secondly, the average Defendant in a Federal death penalty case will have access to better quality legal assistance than his state counterpart will. No knock on state Public Defenders but their case load is too high and they don't have adequate resources to investigate the case. An indigent Defendant will have access to the Federal Public Defender or the Court has the authority to pay private counsel. My late friend Hugh was one of three or four private lawyers appointed by the Court in a particularly grisly murder case that somehow violated Federal law. Which is rare.
Moving to the particulars of the instant case, the arc of the narrative of the defense was pretty low. They won't let you plead guilty to capital murder. And armed with the mountain of evidence of Tsarnaev's guilt, the Feds either didn't offer a plea deal or they rejected any such offer made to them.
The Tsarnaev case reminded me of something one of my criminal lawyer friends said about the Jerry Sandusky case. "Talk about nothing to work with," Peter said over lunch one day. The analysis applies here. The fact of the young man's guilt was inescapable under any set of facts. So while the defense couldn't plead him out, they made the decision not to offer a defense. Or much of one. And this tactical decision made by able death penalty lawyers, one with which I do not disagree, put Tsarnaev halfway to the grave yard.
Talk about nothing to work with.
All they were left with was hitting a home run in the penalty phase. After all, they just needed to persuade one juror. They failed. And Dzhokhar Tsarnaev will get to face the music soon and very soon.
So as a lawyer, I get the ramifications of the decision not to aggressively defend the case. You can't run the risk of pissing off the same jury from whom you will seek mercy. As a prosecutor friend of mine says of similarly situated defendants, "He put himself in a real tough spot." And so to that extent I'm not surprised by what happened in the penalty phase of the trial. Tsarnaev put himself in a real tough spot. His lawyers had nothing to work with,
And he did it by placing, along with his brother, improvised explosive devices in a crowded venue at Boston's most beloved sporting event. They did it with the obvious intent of killing and maiming innocent bystanders and striking terror into the populace. Later, they tried to shoot it out with the cops as they were closing in.
Here's one of my sayings. I don't support the death penalty. But some guys got it coming if anybody does. That is what I consider to be a practical approach to the issue.
Dzhokhar Tsarnev is one of those guys that's got it coming if anybody does.