Verdict Watch: Tsarnaev Sentenced to Death

[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.”]

Original Post

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.

Accomplice 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.

Co-conspirator Liability

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.

Juror Deliberations

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.

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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.


  1. Rachel
    May 15, 2015 at 6:05 pm

    Fred is just now getting home, and for anyone reading, he is going to pull this post back into draft and update with breaking news about this case.

  2. Rachel
    May 15, 2015 at 6:12 pm

    See the update per FDL editor, thanks so much.

  3. Frederick Leatherman
    May 15, 2015 at 6:29 pm

    Hello everyone. Crane and I just returned home a little too late to pull this post that I had written earlier. We heard the news en route on NPR.

    The verdict is death, but the sentence will be imposed by Judge O’Toole at a later date. He has no discretion to sentence him to anything but death.

    I was not surprised by the verdict. As I said long ago, I thought his only chance to avoid the death penalty would have been to accept full responsibility for what he did, express regret and remorse and ask for mercy. Using Sister Helen as a partial proxy wasn’t good enough.

    Looking at the case from another perspective, if we’re going to have a death penalty, why wouldn’t this kind of case deserve the death penalty. Can’t get much more heinous and extreme than this set of facts.

    Having said that, I think you can say the same thing about the venue issue. If a defendant can’t get a change of venue in an extremely polarizing case like this, under what circumstances can anyone get a change of venue?

    I think the venue issue is a great appellate issue with a reasonably good chance of success. An appellate court reversal for denial of the venue motion should result in a new trial, not just a new sentencing. At the very least, he should get a new sentencing.

    There are likely other good issues for appeal, but so much likely was raised, argued and decided under seal without public knowledge that I have no way of discussing.them. One exception is I am virtually certain that the defense must have sought an order permitting Jahar to allocute before the jury without being sworn as a witness and cross examined. Unless Jahar told them not to raise the issue because he would refuse to do it, if they did, I’m sure they raised it. If O’Toole denied that request, that would be another great issue for appeal. If he were to win that issue, his case would be remanded for a new penalty phase..

    There you have it.

    But does he want to appeal, or will he volunteer for death by waiving his appeals like McVeigh did?

  4. Frederick Leatherman
    May 15, 2015 at 6:33 pm

    Thank you, Kevin for stepping in with your editor’s note.

    Much obliged,


  5. sandero
    May 15, 2015 at 6:39 pm

    We are a violent nation and we believe in vengeance. As V&V are such powerful memes in this society it will be a long time before things change if they ever do. It’s too bad that these cases don’t inspire the muh larger discussion about the wisdom of V&V. That is the discussion which needs to take place. But as long as there are bible fanatics… V&V will rule. It’s just that simple. Now there are enlightened pacifist “christians” who extract a different message from the bible. Clever book.. you can make it mean whatever suits you.

  6. cv1975
    May 15, 2015 at 6:52 pm

    I truly believed there would be one for LWOP. Judy and Miriam seemed devastated. I understand he is assigned new attorneys in the appeals process, however, as a private attorney can Judy provide services pro Bono? What role, if any, can Miriam play? Where will he go? When does the appeal start? So many questions and looking for hope on such a sad day!

    “Fitting punishment” . . . That is disgraceful!

  7. Bluedot
    May 15, 2015 at 7:01 pm

    Yes, he very much needed to express remorse. A third person surrogate didn’t work. In fact, as I noted back then, it made me feel he was disengenuous. I thought then and still do that he really did not care. That said I also agree the change of venue is his best chance now. But even there I would not hold my breath.

  8. bsbafflesbrains
    May 15, 2015 at 7:04 pm

    Lynch is a new disappointment but not a surprise disappointment. Is closure what a sociopath gets from this ultimate punishment because I can’t believe a normal human even wants closure from loss of a loved one. Or is closure used as a substitute for revenge? Death penalty is wrong.

  9. mulp
    May 15, 2015 at 7:20 pm

    As they say “the terrorists won!”

    My guess is this will be coming up in the news for a decade, unless he demands no appeals be allowed.

    McVeigh wanted to die quickly, so it only took six years, and that led to many news stories and interviews with him before he was killed and no one could ever question him again about motives, etc.

    All you government transparency and no secrets advocates will certainly be working to give him his hours of glory on the news and on the web to spread his message to the world. Hey, Hersh can interview him! He’s probably claim Obama gave him the bomb and paid him.

  10. Frederick Leatherman
    May 15, 2015 at 7:39 pm

    There is a good reason for new counsel in any appeal in a criminal case, especially a death penalty case, because trial counsel’s performance must be scrutinized to determine if they screwed up and there is an ineffective assistance of counsel issue. The Sixth Amendment right to counsel is a right to effective assistance of counsel. Trial counsel, no matter how good they are, can make mistakes, To avoid the conflict of interest inherent in judging their own performance, trial counsel must step aside.

    Also, trying cases and handling appeals are very different with a different set of laws, rules and procedures. Every death penalty lawyer I know and respect is ready, willing and able to admit they screwed up, assuming they did, if there is any chance that doing so might save the client’s life.

    We call it “falling on your sword.”

    The SCOTUS case that defined what constitutes ineffective assistance of counsel is Strickland v. Washington, 466 US 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Unfortunately, I can’t embed the link, but here’s the website where you can read it:,60

    Copy the link and paste it in your browser.

    Basically, the rule excludes tactical decisions from relief. Other decisions must be so egregious that, given prevailing standards in the legal community, no reasonably competent lawyer would have done or failed to do whatever it was, and, but for the failure, the result likely would have been different. If the error involves a constitutional right violation, there’s a presumption the error was material and affected the outcome.

    Most successful ineffective assistance of counsel claims involve a failure to conduct a mitigation investigation.

    I sincerely doubt that Jahar has a viable ineffective assistance of counsel claim, given the outstanding legal team that represented him. Nevertheless, too much is hidden to draw any firm conclusions about that at this time.

    Finally, most death penalty cases are not winnable at trial because prosecutors don’t seek death unless they are sure they can win and get a death sentence. For this reason, the real battle often doesn’t start until after the defendant is sentenced to death.

    Now the “game” is to keep him alive as long as possible.

    One final point. Judy Clarke, David Bruck and the others need to spend time with Jahar right now, as he must be devastated and fragile. They need to give him some hope to prevent him from volunteering or attempting suicide. That’s tough to do when you’re hurting.

    There isn’t anything easy about death penalty work. Even the wins (LWOP) feel like losses and the public generally hates you.

    I know this because I did it.

  11. knowlyn
    May 15, 2015 at 7:46 pm

    Yeah, not surprising, but I’m still very sad about it. It was a chance to choose life over death in a big way and it just plain failed.
    I have a feeling this guy isn’t going to be a McVeigh on the appeals issue. Who knows if he even has the level of commitment to his cause to do that, but also my memory was that McVeigh’s family pretty much abandoned him after the bombing. I don’t see the Tsarnaev family ever doing that and that I imagine will have an effect on this particular individual. (Of course, that’s mostly just gut guessing…)

  12. OldGold
    May 15, 2015 at 7:59 pm

    As an implacable opponent of the death penalty, I was disappointed. As a hard-headed realist, as I am sure my recent comments reflected, I expected this.

    The mitigation defense was weak. Yes, the defense team made several tactical and operational mistakes, but the primary problem was that his attorneys had damn little to work with. For instance, Sister Helen Prejean could have been a transcendent witness, but despite five meetings, Dzhokhar Tsarnaev gave her far too little to work with.

    I wish I shared others’ optimism in terms of the appellate process. I do not.

  13. Chris Maukonen
    May 15, 2015 at 8:11 pm

    There is a certain segment of society that “gets” something out of killing and torture.

  14. Beverly Lawson
    May 15, 2015 at 8:27 pm

    As noted, if ever a death penalty case, this is probably it…..I am deeply against the death penalty….merely adds more vengeance and cruelty……even family of the victim making a statement. What is the great drive for revenge? (And truly, what could have made this young man do such a thing? If that is the truth, which has been questioned) Seems to me as well that the venue issue was unfairly decided, but I do not know the standard for the appellate review. Thanks for the discussion.
    I am also sadly disappointed in the new AG…..can she really be pro dp when there are so many known errors in the legal system…..sickening.

  15. Molly
    May 15, 2015 at 8:30 pm

    Thanks for this, Fred. I am disappointed in the verdict, but not surprised. I really appreciate your clear explanations of the legal terms and issues.

  16. Carolyn D
    May 15, 2015 at 9:08 pm

    It is as though the jury either did not listen or they repudiated the entire defense case and version of this story. I don’t know how Judy Clarke must be feeling, but I would not want to be her right now. I think she grew very fond of this kid.

  17. Donald B.
    May 15, 2015 at 9:09 pm

    And they think they’re noble defenders of civility and justice, while those they torment are savages.

  18. Chris Maukonen
    May 15, 2015 at 9:33 pm

    “And they think absolutely believe they’re noble defenders of civility and justice, while those they torment are savages.”

  19. Frederick Leatherman
    May 15, 2015 at 9:36 pm

    I am a blogger and former law professor and felony criminal defense attorney who specialized in death penalty defense and forensics. I am a teacher and this blog is about what happened today, why it happened, and what will happen next. It’s intended to educate, so that readers will know what’s really going on behind the scenes.

    I assure you that I am not going to be “working to give him his hours of glory on the news and on the web to spread his message to the world.” He doesn’t deserve glory and I will not give him any. I honestly can’t imagine anyone would attempt to do that, except perhaps ISIS.

    The questions are should he be executed and does he have any appealable issues that are likely to win him a new trial or sentencing hearing. Was he accorded due process of law because no matter what anyone does, no matter how horrific, he is entitled to due process.

    If you have a question along these lines, ask it and I will give you an honest answer.

  20. cv1975
    May 15, 2015 at 9:45 pm

    I believe that both she and Miriam did grow fond of him and he them. I hope that their relationship can continue. Will he stay at Devens until sentencing? Will he conceivably get to stay there indefinitely through the appeals? I hope the Sister can continue her visits! His teacher has tweeted her sadness and disappointment in our justice system! She is a good voice to hear!

  21. Rachel
    May 15, 2015 at 10:06 pm

    Somehow I have the feeling that the jury had made up their minds in advance. Given the numerous (and complicated) jury instructions- I don’t think they took the time, to discuss… just a thought.

    Also, why no allocution or mention of it?

  22. Frederick Leatherman
    May 15, 2015 at 10:48 pm

    He will probably remain at Devens until Judge O’Toole sentences him to death. After that, I think he will be transferred to a federal correctional institution for mental and health evaluations and placement. That usually takes about 6 weeks to complete. Then he will be sent to death row at Terre Haute, IN. All federal death row prisoners are housed there. There are presently 58 prisoners on the row

    Come to think of it,they may send him directly there, instead of an FCI evaluation center since he will have been sentenced to death,

    He will remain on death row until he is executed, unless his conviction or sentence are overturned and he is returned to the trial court for further proceedings.

  23. Frederick Leatherman
    May 15, 2015 at 11:14 pm

    Devoted death penalty lawyers like David Bruck and Judy Clarke are special people who have devoted their lives to saving people from themselves and the death penalty. They do it by being of service to the hated and the reviled. They connect with the divine spark in everyone, no matter what they have done. They bond with their clients, according them dignity and respect.

    They let it all hang out when they ask a jury to spare their client’s life and it’s absolutely devastating when the jury rejects their plea and sentences their client to death.It’s very tough, but as tough as it is on them, they never forget that, unlike their client, they have a home and family to return to. There will be a tomorrow and another life to fight to save.

    When a jury sentenced my client to death, I went to the lockup as soon as I could shake free from the press of people and reporters. I spent a several hours with my client attempting to comfort him and myself.

    The bond between the lawyer and client is special. I’m a spiritual but not religious person and I regard that special bond as holy in a way that transcends space and time.

    I believe Judy and David are the same.

    Yes, they are hurting, but like me, I doubt they are surprised.

    Bad case with bad facts and no defense presided over by a bad judge and a team of bloodthirsty prosecutors.

  24. Carolyn D
    May 16, 2015 at 1:15 am

    I believe the motorcade taking Tsarnaev back to Devens left the courthouse a couple of hours after the verdict. I hope he was able to talk to someone!

    I am pretty devastated by the verdict myself, and was shocked that so few jurors even bought the idea that Tamerlan was in charge here. To me, that was completely obvious. That’s why I was feeling bad for Judy and the team because they actually know him and probably all have grown pretty close. Yesterday, reporters said that Tsarnaev actually laughed out loud over something he and Judy were talking about. What a terrible, terrible shame that that laugh may be his last one. What could there possibly be to laugh about on death row? I feel so sad about it all.

    If there had not been a terrorism element, the government would not have sought the death penalty. And, it sounded like most jurors thought that Tsarnaev would be trying to incite others at the Supermax! I think a big driver of pro-death penalty sentiment was the idea that we would show the rest of the world that we would not tolerate acts of terror like this. I guess that sounds righteous in a way for a country that is in constant war with Muslims. But it’s more like the rest of the civilized world thinks we’re barbarians for even having the death penalty.

  25. Carolyn D
    May 16, 2015 at 1:33 am

    There are some interesting articles on the verdict. Two from the Globe 1) the editorial has an interesting take. They’re worried about Tsarnaev becoming an international human rights martyr; and 2) Kevin Cullen’s column is very good. He actually is a death penalty opponent. And, there’s kind of a humorous one from Slate. You might appreciate the headline “Grim Carnival.”

  26. Frederick Leatherman
    May 16, 2015 at 1:54 am

    “Closure” is a psychobabble term used to refer to a final resolution of a murder case in which a victim’s survivors can at last put the matter behind them and get on with their lives. In fact, there is no such thing because most people never forget the painful loss of a loved one.As time goes by, they will think about it less and less, but they will never forget. When something triggers a memory, the pain is just as sharp as it was when the loss occurred.

    What most people don’t realize is that a death sentence involves years and years of appeals (e.g., 10-20 or more years) that occasionally result in the case being sent back to the trial court with directions to hold a hearing regarding some issue in the case or even to hold a new trial, in which the whole damn case resets to zero as if the first trial never happened. Thus, the appellate process operates like an out of control roller coaster tearing through the victim’s loved ones lives. During the lengthy time that an appeal is pending their lives are placed on hold again and again as they wait for a final resolution.

    That’s not closure. That’s torture.

    Much easier to move on if the defendant pleads guilty to LWOP and goes away forever. No lengthy appellate process to deal with.

    If the government had accepted the defense offer to have Tsarnaev plead guilty in exchange for the government dropping the death penalty and agreeing to an LWOP sentence, Tsarnaev would have been sentenced last fall and most people would have forgotten about him by now. Instead the victim’s who survived and the loved ones of the victims who died now have the 10-20 year roller coaster to look forward to.

  27. Frederick Leatherman
    May 16, 2015 at 2:17 am

    Yes, and a recent PEW poll of people’s support for the death penalty sorted by religious affiliation demonstrates that support for the death penalty is strongest (over 50%) among evangelical protestants and mainline protestants.

    Willful ignorance of who Christ was and his teachings, coupled with a strong fear of people of color and an almost desperate clinging belief in an overly simplistic and ancient barbaric practice of an eye for an eye has proved to be a deadly combination. Fortunately, they won’t live forever and most of them are getting along in years.

    BTW, most of them vote Republican but I’ll bet you already knew that.

  28. Frederick Leatherman
    May 16, 2015 at 2:18 am

    Sickening self-delusion and hypocrisy.

  29. drmyk
    May 16, 2015 at 2:22 am

    I think he was given due process, he chose not to take advantage of many opportunities to present a defense or a mitigation of his actions. If you do something terrible and want others to have mercy, you have to give them a reason to want to be merciful. He needed to show remorse and contrition, which he didn’t, or couldn’t do.

    I’m opposed to the death penalty. I think it should be removed from our legal system. But it isn’t, and given the rules that the trial and the jury operated with, and given the lack of anything substantive from the defense, I don’t see how another outcome could have been expected. Especially since the jurors have to be willing to give death as a punishment if they are seated on the jury.

  30. Frederick Leatherman
    May 16, 2015 at 2:47 am

    The only issue that I believe should win is the venue issue. I am persuaded that the whole Boston community, including the jury pool, were victims of the bombing and unsuited to serve as jurors. If this case did not merit a change of venue, what case would?

    Having said that, I am well aware that politics have played a significant role in Judge O’Toole’s decisions and I’m pretty sure they will continue to drive the decisions on appeal. For that reason, I share your pessimistic view about the outcome of an appeal.

    The legal system is more corrupted today by money and outside influences than at any other time in my adult life. I quit practicing law in large part because of that and its only gotten worse.

    It’s a terrible shame and I don’t believe the damage can be repaired.

    I look forward to more discussions with you as time marches on. I hope we get a chance to meet some day.

  31. Frederick Leatherman
    May 16, 2015 at 2:52 am

    She also is a person of color and I don’t really understand how any person of color can support the death penalty when it has been so disproportionally applied to black people.

  32. Frederick Leatherman
    May 16, 2015 at 2:56 am

    I think we are hypocrites for demonizing Jahar when we have killed so many more innocent children with drones in the ME and I agree that we are barbarians for having the death penalty.

  33. Mark
    May 16, 2015 at 2:57 am

    I whole heartedly agree about Lynch. Shameful. At least Holder was a spoken opponent of the death penalty and it is pretty much understood he had no choice but to allow it in this case.
    This is not the first unsavory thing I have heard about this new AG.

  34. Frederick Leatherman
    May 16, 2015 at 3:01 am

    I can’t disagree with you. After all,if we’re going to have a death penalty, isn’t this case a perfect candidate for it?

    Doesn’t make me feel any better to admit that.

    I keep thinking how Norway handled Anders Behring Brevik’s case. Much more classy and civilized.

  35. Mark
    May 16, 2015 at 3:15 am

    Fred. thank you for answering so many questions in this blog.

  36. drmyk
    May 16, 2015 at 3:18 am

    Of course, their payback for their civility after having a man kill 77 people is that he gets to write letters complaining about cold coffee and outdated video games and sue for being overly isolated in prison, knowing that when he’s 56 he’ll be a free man.

  37. Frederick Leatherman
    May 16, 2015 at 4:14 am

    He won’t necessarily be a free man at age 56 because in their legal system they can refuse to release him if they decide he hasn’t rehabilitated and is too dangerous to release. I’m not sure about the exact wording of the rule, but it seems rather like the California Parole Board in our country deciding not to parole Charlie Manson. I suspect that despite periodic reviews, he will be denied release. As Dr. Hannibal Lecter was fond of saying about his patients whom he murdered, “He wasn’t progressing in therapy.”

  38. sandero
    May 16, 2015 at 6:23 am

    This is of course the huge irony about the USA and the cognitive dissonance in play. We are a violent nation and kill wantonly around the world mostly for economic gain. We have a police force which takes the law in its hands constantly and kills suspects denying them even a chance for a trial. We’ve executed many innocent people and we allow people to die on the streets from lack of shelter, food or medical care. We slaughtered the indigenous people of North America and put their survivors into “camps” and dishonor the treaties we have signed. Americans are hypocrites of the highest order.

  39. Ruth
    May 16, 2015 at 6:49 am

    A death penalty does not have any effect of deterrence, for a crime committed as part of the ridiculous ‘jihad’ mantra, in which a person has accepted his personal vengeance role in conflict and wants to die, perhaps thinking his ‘martyrdom’ will result in eternal honor. This would have been deterred by the prospect of a life in prison.

  40. Shutter
    May 16, 2015 at 9:28 am

    An immoral act by the state is no different than an immoral act by an individual. Let him live and grow old and die on his own.

  41. DWBartoo
    May 16, 2015 at 9:34 am

    As always, Mason, I thoroughly appreciate the education, and the understanding, you provide us.

    Expected as this verdict was, it does not reflect well upon us as a people nor as a society of human beings. Indeed, this verdict and the hypocrisy surrounding what is done daily, in our names, the drone killing, the “humanitarian interventions”, now our euphemistic term for WAR, to bring about “regime change”, which we as “the One Indispensable Nation” feel is our “right”, points not to a society of virtue or capacity but to a frightened, huddled and deliberately misled mass of sheepish folks who have no idea how many other human beings have been killed, tortured, or harmed the world over, in their name. In fact, we, to all intents and purposes, accept torture and endless war as “good”, even as our own basic rights and economic well-being are sacrificed to “security”on the one hand and the “ïnterests” money on the other …

    Essentially, we are a tribal society of little genuine understanding, who have become an empire through violence … and, apparently, we are a society which will require calamity or catastrophe, of immense proportion, before we may be persuaded or come to see the error of our “way” … of our smug conviction that WE make history, that WE are the moral steward’s of a planet which we daily diminish in its capacity to support (or tolerate) our existence.

    The USA, the Great Exception, among all nations, seems little likely to change until it is forced to do so.

    Our comfortable complacency, so evident in the behavior of the legal system, and those within that system so eager and willing to shape the law to the dictates of limitless power, as this case demonstrated, and the whims of endless greed, as the failure to hold Wall Street to any account demonstrates quite as clearly … suggests that our fall, when (not if) it comes, will be precipitous and brutal.


  42. knowlyn
    May 16, 2015 at 10:26 am

    MIB–I’m wondering if your earlier stated principle that these cases are won/lost in jury selection didn’t prove very true here. Just from my own observations “listening” to voir dire as reported and then reading the break-out in the Globe’s piece on the jurors about their stated death penalty beliefs, I had a bad feeling from the beginning. They didn’t get a single person who called themselves “anti-dp” but said they would follow the law on to the jury (I think one was an alternate). They were mostly defined by the Globe as “open” to it. People made a big deal about this being in eastern MA, so that would help given the big dp opposition there, but I’ve come to wonder (w/out being able to statistically prove it) whether that didn’t actually work against them. More opposition in the pool may have just meant more people more strongly opposed and, therefore, unwilling to even consider it and, thus, more people from a wider array of viewpoints dismissed.

    Obviously, the evidence here was brutal, so even a few who saw themselves as “anti” may have been swayed, but it seems possible with a slightly more anti attitude, one might have gotten someone a bit more able to buy the he’s young and not a problem-prisoner arguments for life. I guess this might be a statement worthy of Captain Obvious, but I thought I’d throw that out there.

  43. Carolyn D
    May 16, 2015 at 10:58 am

    Really like both comments here about the U.S. being hypocrites. I wonder if this will be pointed out by people in the rest of the world looking at this verdict. Many in other countries might be thinking: “You reap what you sow,” as the Bible says. Another religion calls it karma.

  44. Elliott
    May 16, 2015 at 10:58 am

    I’ll never understand how a jury chosen from only those who support the death penalty could ever be considered a fair and just jury. How does this pass Constitutional muster?

    (Hi everybody)

  45. marym
    May 16, 2015 at 11:00 am

    Here’s an interesting conservative Republican argument against the death penalty.

    “Nebraska moved closer Friday to repealing the death penalty,
    thanks to Republican and conservative lawmakers who argue it’s a waste of
    taxpayer money, a failed government program, and cruel to victims’ families who
    wait decades for an execution.

    … [Nebraska Governor] Ricketts has vowed to veto any repeal
    legislation, but it appears the abolitionists have the 30 votes needed for an
    override, and possibly even the 33 votes to overcome any filibusters. It needs
    be passed one more time to get to Ricketts’ desk.”

  46. Mark
    May 16, 2015 at 11:18 am

    I hate it when I have to agree with conservatives about stuff. They are usually on the other side of this argument while they hold their smug moral ground stance on women’s choice. I do notice that they put the financial reason first in their list of reasons for abolition. But hey, it’s a nay for the death penalty so I am good with it.

  47. Carolyn D
    May 16, 2015 at 11:23 am

    I was reading in some comments on Kevin Cullen’s article that a local attorney predicted that Tsarnaev would be executed with 5-7 years. What do others here think about that possibility?

  48. marym
    May 16, 2015 at 11:44 am

    When this issue gets to the Supreme Court again, it will need some conservative arguments, though wasteful-government-program is problematic. Interesting that they chip away at the argument also used by liberal-except-for-x liberals, that masks vengeful violence as sympathy for the victim.

  49. OldGold
    May 16, 2015 at 11:58 am

    It is interesting you mentioned the special bond that can exist between a client and their lawyer.

    Certainly, in big stakes cases, it often develops. But, a lawyer must be careful not to allow this special bond to develop into anything that is akin to a friendship. An attorney with emotional dust in their eyes is not doing their client any favors in the courtroom.

    During the instant case, I wondered, at several points in the proceeding, if this had not become a problem.

  50. Patriarch
    May 16, 2015 at 1:12 pm

    Discovery, when not suppressed by Eric Holder is an amazing thing.
    “The Department of Justice continues to hide evidence. Holder’s view: Only prosecutors can decide what is “material to the defense,” and if they decide it’s not material, they don’t disclose it—even if it is obviously favorable to the defense. Mr. Holder’s Department is even seeking to change the ethical rules in each state to comport with the Department’s view and make it easier for prosecutors to hide evidence. Mr. Holder’s view of the Brady rule puts the prosecutor in total and sole control of the outcome of the case. It licenses him to lie.”

    Prosecutors can even think THEY should decide who is guilty or innocent. The mentality is, “These guys may not have done it but they’re bad guys and they have to go to prison.” In fact, a prosecutor has actually been quoted as saying just that.

    We see what’s called “Brady violations” all the time in cases of wrongful conviction. This is when a prosecutor does not turn over exculpatory evidence to the defense. This violates the law, but there never seem to be any consequences. And prosecutors are protected from being sued by defendants who have been wrongfully convicted by “prosecutorial immunity.” In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court established absolute immunity for district attorneys or prosecutors from civil suits resulting from their government duties.

    “Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities.” Margaret Z. Johns
    “In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy. As one commentator observed, the arguments supporting absolute prosecutorial immunity ‘offer a wry blend of fairy tale and horror story.’ ”

    By the way, LOOK what I discovered:
    “It’s been a great ride on the Internet for an ex-attorney who had a very colorful and relatively unremarkable career as a criminal defense attorney. Leatherman gave up his law license in 2004, he was only about 57 at the time. I’ve done extensive research on him and I always end up getting very side-tracked with the cases I find – I’ve yet to find out what happened, but I am sure there was a reason, other than retirement, for Leatherman to quit practicing law.”

  51. Patriarch
    May 16, 2015 at 1:21 pm

    She completed her orders from her handlers.
    In return her fees & personal expenses were paid: For herself & Bruck..approx $5 million.
    The Labor of paralegal was budgeted separately in the Federal Public Defenders’ office.

    Clarke is a prostitute…& doesn’t kiss & tell, in the event you haven’t noticed.

    The only tears shed for Jahar in court at conviction were the paralegals.

  52. Patriarch
    May 16, 2015 at 1:25 pm

    The government is corrupt…& they corrupt the youth with patriotic propaganda.

    Americans are too busy to pay attention.

  53. caleb36
    May 16, 2015 at 1:32 pm

    Perhaps you can argue that the very worst of the worst criminals should get the death penalty (I don’t agree). Jahar Tsarnaev, 19 years old at the time of the bombing and dominated by his older brother Tamerlan, is surely not one of those.

  54. Patriarch
    May 16, 2015 at 1:34 pm

    Holder is a greedy sociopathic liar. He wreaks of CORRUPTION.
    See my post above.
    Jamie Dimon just gave him a $70 million/yr job to lobby Capitol Hill.

    ( in exchange for a secret aka obama pardon of exile to Cuba, Leonard Millman, who in exchange, donated $2 billion to aka Obama’s POTUS Library)

  55. Patriarch
    May 16, 2015 at 1:39 pm

    Intentional trial tactics.

  56. Patriarch
    May 16, 2015 at 1:46 pm

    Judy has earned her keep. She has moved on to the next dupe, who will also trust that she will effectively assist him/her…HA!

    Like aka Obama, she steals people’s trust.

    Unlike her, I would have risked contempt, & gone right to the press. I would have lost my salary from Holder, but I would have stopped this FRAUD UPON THE PEOPLE in its tracks.

  57. Carolyn D
    May 16, 2015 at 2:13 pm

    The Boston Globe is blaming Holder for forcing the State of Massachusetts, a non death penalty state, to go through this.

  58. Carolyn D
    May 16, 2015 at 2:22 pm

    There were women on the jury who voted for death for this defendant, but they did not see the Jahar Tsarnaev his attorneys saw – or maybe they didn’t allow themselves to go there. I think there’s a large contingent of women out there who have a soft spot for Jahar based on who they think he is. Some of these women are young, some not so young. How could Judy Clarke and Miriam Conrad, who regularly interacted with him, NOT have become emotionally entangled with their client? I think it would have been impossible not to. He’s a very likable kid based on all reports and this is a tragic situation for him.

  59. OldGold
    May 16, 2015 at 2:38 pm

    I think he was “dominated by his older brother.” But, the jury did not and rightfully so. The defense introduced virtually no evidence into the trial record as to the actual relationship between the brothers during he several months preceding the Marathon Bombing.

  60. knowlyn
    May 16, 2015 at 3:31 pm

    I suppose it could be deemed acceptable in a location that has a very low rate of opposition to the death penalty, but when you start dismissing significant chunks of the jury pool on that basis, than, I agree, it does become an issue of getting a fair jury.

  61. knowlyn
    May 16, 2015 at 3:37 pm

    Yeah, I don’t really know what to say about that. I imagine there are any number of witnesses who had both upsides and downsides, and with the prosecutors on the warpath, some could have done more harm than good, I imagine. In a way, it’s so hard to comment on any of this because there’s just so much we don’t know.
    When you say you think he was dominated, what makes you say that? Was it things you read/saw outside of the trial evidence?

  62. OldGold
    May 16, 2015 at 3:59 pm


    One person I thought might testify about the internal dynamics of the family was their long term landlord, who apparently had a close relationship with Dzhokhar. It was reported she attended several school events with him in lieu of his parents.

  63. knowlyn
    May 16, 2015 at 5:26 pm

    I wondered about her. Her son testified, but he knew very little, really, particularly about Dzhokhar. The fact that they put the son on felt almost like he was a substitute, and not a very good one; I wonder if that might suggest there was just something practical that kept her off the stand?? But, again, that’s just speculating.

  64. OldGold
    May 16, 2015 at 7:07 pm

    “How could Judy Clarke and Miriam Conrad, who regularly interacted with him, NOT have become emotionally entangled with their client?”

    The same way all good lawyers do. Establishing professional boundaries and maintaining them.

  65. dubinsky
    May 17, 2015 at 2:08 am

    thank you for the explanation

  66. dubinsky
    May 17, 2015 at 2:13 am

    quite a few people are of the opinion that terrorist murderers really are the worst of the worst.

    there is just something that doesn’t sit right with a great many people about fanaticism to the extent that it drives people to deliberate murder random persons

  67. dubinsky
    May 17, 2015 at 2:31 am

    what the heck does being likable have to do with anything?

    I pleasant aspect or a mannerly carriage are rather trivial in the face of the acts.

  68. dubinsky
    May 17, 2015 at 2:36 am

    and sometimes we capture one of them and try them and sentence them to be executed.after they go out and kill

  69. Beverly Lawson
    May 17, 2015 at 10:32 am you know the definition? You should be sued; you are probably already known as anti-feminist.

  70. Carolyn D
    May 17, 2015 at 11:58 am

    Was admitting guilt bad strategy?

  71. Patriarch
    May 18, 2015 at 2:57 pm

    Me? Haha! Hoho! She’s a public figure.
    You are one of those First Amendment intolerants…except when it applies to you, of course.

    Be sure to write to Eric Holder, the epitome & prototype for ALL attorneys’ reputations as PROSTITUTES.
    IT IS ANDROGYNOUS, “Madame”.

    IF HE SUED ME, I would counterclaim, and make him & Clarke counter-defendants. Then I could compel know communications payouts history pattern of clients assigned to Judy Clarke as PATSIES for their malevolent diabolical, malfeasant, & sociopathic motives, exactly like Hitler.

    By the way, Eric Holder was just given a $70 million /yr lobbying job from Jamie Dimon.
    Why? A secret pardon he negotiated with exile to Cuba, Leonard Millman.

    In exchange, Millman donated $2B to aka Obama’s (stolen identity like Don Draper) FRAUDULENT POTUS Library.

    What do you call that?

    Catch up.
    Naïveté is the ally of self-destruction.