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Tsarnaev: How the penalty phase will differ from the guilt phase

Although the penalty phase in a death penalty trial follows the same procedure followed during the guilt/innocence phase, with opening statements by counsel, presentation of evidence by each side, and final arguments by counsel, there are significant differences.

Jury deliberations in the penalty phase of a death penalty trial differ from jury deliberations in the guilt/innocence phase. For example, jurors are instructed to vote their conscience in the penalty phase; whereas, they are instructed to try and reach a unanimous decision in the guilt/innocence phase. This difference is significant because it transforms the penalty phase into a personal search by each member of the jury for the ‘right’ sentence to impose rather than a group effort to reach a unanimous decision.

Another significant difference permits each juror to consider mercy during the deliberative process in the penalty phase. They also are told to respect conclusions by other jurors that differ from their own.

These differences matter because a death verdict is never automatic, no matter how heinous the crime.

The prosecution will lead off since it has the burden of proof. The jury must be unanimous to impose a death sentence. Only one vote for LWOP is needed to impose LWOP

Dzhokhar Tsarnaev’s relative culpability compared to his brother is a mitigating factor to consider, but the defense must exercise caution to avoid overplaying this card and being perceived as ‘blaming the dead guy.’ Avoiding responsibility, instead of accepting it is an invitation for a death sentence. His age and immaturity as well as his subservient relationship to his brother may be enough to avoid a death sentence.

He also has the right to allocution, that we have discussed in previous articles. Allocution in this context is the right to ask the jury to spare his life.

Predicting the outcome is difficult.

What do you think?

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.