[Editor’s Note: Dzhokhar Tsarnaev was sentenced to death by a jury. Attorney General Loretta Lynch stated, “The ultimate penalty is a fitting punishment for this horrific crime,” and claimed it will bring victims’ families “closure.” In contrast, while condemning what Tsarnaev did, Amnesty International said it is “outrageous” that the federal government imposed “this cruel and inhuman punishment, particularly when the people of Massachusetts have abolished it in their state.”]
The jury has commenced its 11th hour of deliberations with no indication they might be nearing a verdict. Yesterday, the jury sent out a question asking the judge to explain what constitutes aiding and abetting. As we continue to wait, I am going to take this opportunity to explain accomplice and co-conspirator liability.
To prove that Jahar aided and abetted Tamerlan to kill Sean Collier, the government must prove beyond a reasonable doubt that Jahar acted with specific intent to assist Tamerlan to kill Collier. Mere presence at the scene of the shooting is not sufficient to constitute aiding and abetting unless he intended to assist Tamerlan to kill Collier by being present.
His intent is a question of fact for the jury to decide, based on the evidence admitted during the trial.
Evidence may be direct (i.e., perceived by the senses) or circumstantial (i.e., a chain of circumstances that inferentially leads to a conclusion according to common experience). For example, if there is snow on the ground when we wake up in the morning and there wasn’t any snow on the ground when we went to sleep, we can infer that it snowed while we slept.
A conspiracy is an agreement between two or more people to commit a crime (e.g., detonate a weapon of mass destruction in a crowd near the finish line of the Boston Marathon with intent to kill and injure people). Every person who is a member of the conspiracy is criminally liable or responsible for every crime committed by another member of the conspiracy in furtherance of the conspiracy, even if they were not present when the crime was committed and did not know about it beforehand, so long as the crime was reasonably foreseeable, given the object or purpose of the conspiracy. In other words, co-conspirator liability is a form of strict liability imposed on every member of a conspiracy for crimes committed by other members of the conspiracy in furtherance of the conspiracy.
Despite the 20+ page verdict form, which provides an illusion of structure to the deliberations, I believe the final decision will be an independent gut or emotional decision. I say this because each juror has been instructed to independently weigh the evidence in aggravation and mitigation. For example, I imagine each juror will assign different weight to the dysfunctional-family evidence introduced by the defense. The greater the weight accorded to that evidence, the more likely a juror will vote for LWOP. That is a fundamentally emotional decision that is not readily quantifiable.
Whether the jurors realize that yet is unknown.