Boston Marathon bomber's wait on death row likely to be a long one

Legal experts say Dzhokhar Tsarnaev stands good chance of having death sentence set aside

At 21, Dzhokhar Tsarnaev is about to become the youngest, most notorious inmate on federal death row.

After convicting the Russian immigrant last month in the 2013 Boston Marathon bombings, a jury on Friday voted to sentence him to death for his role in the worst terrorist attack on U.S. soil since Sept. 11.

When Tsarnaev is formally sentenced this summer, it may be the last time he is seen in public, but the legal battle over his case is certain to drag on for years before any execution is carried out.

For now he remains in the custody of U.S. marshals here in Boston. After sentencing, he will be turned over to the U.S. Bureau of Prisons and eventually deposited at the death house in Terre Haute, Ind., on the banks of the Wabash River.

From there, over the next 10 years or more, his defense team will wage the final fight for his life.

His current defense lawyers, led by widely known anti-death-penalty advocate Judy Clarke, failed to persuade jurors to spare Tsarnaev from death row. The next legal battle will be with a new team of appellate lawyers who will try to win, at a minimum, a new hearing on whether life with no parole is the more appropriate punishment.

"It will be a very slow, torturous process," said Charles Ewing, a University at Buffalo law professor.

Interviews with several attorneys and experts on capital litigation suggest there is little chance Tsarnaev will see his conviction set aside. In March, on the first day of his trial, Clarke conceded to the jury that Tsarnaev placed one of the two pressure-cooker bombs near the finish line in April 2013 that helped kill three people and injure more than 260 others.

He and his older brother, Tamerlan, later shot to death an MIT police officer.

But experts say Tsarnaev does have a reasonably good chance of getting the death sentence set aside, based largely on his lawyers' repeated requests to move the trial out of Boston. The defense contended for months last year that the Boston community was too deeply scarred and that no local jury could give him a fair and impartial trial. The judge refused to hold a hearing on the matter, and a local appellate court declined to intervene.

The Tsarnaev appellate team also may have a shot at vacating the death sentence if they can show the judge did not properly instruct the jurors, specifically in not telling them that if they deadlocked it would not result in a new trial. A deadlock would have meant a life sentence, but some jurors may not have understood that.

"The best would be to get him a new punishment phase," said John Blume, a Cornell University law professor and director of the school's Death Penalty Project.

"There have been other cases that sometimes produce a death sentence because some jurors were leaning toward life and the other jurors beat them up [verbally] and said, 'If we don't do this, if we don't do our duty and give him death, another jury will have to listen to this brutal, gory testimony.'"

Tsarnaev's appellate lawyers also could challenge the constitutionality of the death penalty and question whether his trial attorneys performed effectively. But most lawyers watching the case praised Clarke's decision to admit his guilt, saying such honesty was probably appreciated by the jury.

Because this is a federal death penalty case, an appeal is automatic. It begins with an initial request to the judge for a new trial. It ends years later, when the execution date is near, with a plea to the president for commutation.

The formal sentencing hearing is expected within about two months, and because the judge cannot reduce the sentence, much of that proceeding will be courtroom theater.

Prosecutors said they are reviewing lists of survivors and relatives of the dead to choose which ones will offer victim impact testimony. From the bench, Judge George A. O'Toole Jr. could have harsh words for Tsarnaev when he formally imposes the death sentence.

And Tsarnaev, who did not testify at his trial and has shown no public remorse, would have one last opportunity to speak. But whatever he would say would not change the outcome and could, experts said, harm his future appeals.

"It's up to him, but I don't recommend it," said Andrew Flier, a Los Angeles-area criminal defense lawyer who earlier served as a prosecutor. "There's no benefit to it. If he's sorry, he should have said it sooner."

According to the Death Penalty Information Center, a Washington-based policy group that tracks capital punishment, there were 61 inmates on federal death row as of March 24.

Since the reinstatement of the federal death penalty in 1988, 74 defendants have been sentenced to death, and three have been executed. Through legal appeals, 10 others have been transferred off death row.

Oklahoma City bomber Timothy McVeigh was convicted in 1997 and executed in 2001. He had a short time on death row because he dropped all appeals and asked to be put to death.

The last federal execution was in 2003, when decorated 1991 Gulf War veteran Louis Jones Jr. was executed for killing a young female recruit.

Three inmates — members of a violent Richmond, Va., street gang — have been on death row since 1993, another sign of the slow, winding process from the courtroom to the death chamber. The process is filled with legal appeals, psychological examinations, DNA testing, the search for new evidence and other twists as defense lawyers try anything to keep their clients from that trip to the chamber.

The process can be particularly difficult for victims who want to get past the constant reminders, and was one reason many in Boston preferred a life sentence over death. With a life sentence, they argued, Tsarnaev would be locked away and forgotten.

"It will easily be a decade before the death sentence is even carried out," Ewing said. "People looking for closure are not going to get it. When it eventually happens, this will be way out of people's consciousness."

richard.serrano@latimes.com

Twitter: @Rick.SerranoLAT

Copyright © 2016, Los Angeles Times
60°