By Margo Schulter.

(Note from jane24: I am pleased to be able to post, on behalf of Margo Schulter, this excellent essay written in opposition to the death penalty. Due to Margo’s ongoing difficulties in accessing the comments threads, I will also be posting Margo’s responses to your comments on her behalf.)

Like the Boston Marathon bombings of 15 April 2013, today’s death
penalty verdict against Dzhokhar “Jahar” Tsarnaev marked a catastrophe
for those who respect the integrity of human life in Boston, the
U.S.A., and throughout the world at large. What 12 citizens of Boston
were unable to accomplish, thanks to the immoral Federal Death Penalty
Act of 1994 and a lopsided process of death qualification, the
civilized world at large must: saving Jahar’s life, and more broadly
achieving a global moratorium on executions with a view to universal
abolition of the death penalty.

As with the two pressure cooker bombs set off at the Marathon that
killed Krystle Campbell, Martin Richard, and Lingzi Lu, the death
penalty victimizes everyone it touches and shreds the everyday trust
and social solidarity on which civilization depends. Obviously Jahar
himself is the intended target of what Allen Ault, former Director of
the Department of Corrections in the State of Georgia, on the basis of
very personal experience carrying out executions, called “about as
premeditated as any killing you can do.” Saving his life demands that
we nonviolently defuse this bomb as opponents of terrorism and
purposeless killing of all kinds, state-sponsored or otherwise.

However, as at the Marathon in 2013, and as also with the
assassination of Officer Sean Collier in the events following the
bombings themselves, there are many other victims. The jurors given
the traumatizing task of deciding death for another human being, and
the prosecutors who staged a show trial performance in order to arrive
at this barbaric result, have had their humanity diminished, with
psychological consequences that may endure for years or decades.
Survivors like the Richard family will have their wounds reopened
again and again by the gladiatorial legal spectacle over Jahar’s
execution — unless and until we act as a larger jury to cast our
verdict in favor of life and make it prevail.

While these simple realities should suffice to build a movement of
international solidarity against the death penalty for Jahar or
anyone, confronting the deeper psychology of the prosecution’s deadly
logic and spirit of dehumanizing vengeance invites us to recognize the
basic immorality of bombing civilians. For those of us who are
citizens of the U.S.A., it means a sobering look in the mirror to
contemplate just how much “remorse” our nation has shown for Tokyo,
Hiroshima, Vietnam, Iraq, Afghanistan, Yemen, and Waziristan — not to
speak of the centuries-long horrors of the Turtle Island Holocaust
starting in 1492 and the African/African-American Slave Holocaust
initiated around the same time. Abolishing the death penalty, and
demanding a foreign policy that does not make those horrible scenes on
Boylston Street a commonplace reality for those facing our bombs and
drones, are distinct but intimately related goals in our quest for a
peaceful world united by respect for international human rights law.

1. The fatal injustice of death qualification.

In order to obtain a federal death penalty verdict despite the
abolition of the death penalty in Massachusetts since 1984, the
government used the traditional tool of death qualification: excluding
all jurors unwilling to return the death penalty in what they found to
be an appropriate case. Very simply, those of us who believe that the
death penalty is immoral, and are actually ready to act consistently
on that conviction, are not eligible to serve on a death penalty jury.

For the people of Massachusetts, this issue is not new. In a minority
report, some members of the Committee on Capital Punishment of the
Massachusetts House of Representatives in 1848 observed in making
their case for abolition:

“In Massachusetts, there is notoriously an increasing
disinclination to convict, even though jurors are stacked
as they are, by a most cruel policy, against the prisoner. In the
present state of public feeling, every man who has scruples about
capital punishment being of course excluded from the jury, and
all of humane feelings avoiding, if possible, sitting on a
capital case, jurors in capital trials are almost necessarily
made up of the hard-hearted — those who have almost prejudged
the case; and yet, even in Massachusetts, either through the
partiality of the jury, or the clemency of the executive, it is
some years since the death-penalty has been inflicted.”

From time to time executions continued in Massachusetts, with the last
in 1947 — but even in 1848, the same issues of jury bias besetting the
Tsarnaev trial were already familiar in capital cases. In 1961, Walter
Oberer published in a law review article his modern version of the
thesis already suggested in 1848 that death-qualified jurors tend to
be “hard-hearted” with a danger that they will “prejudge” the case —
or, in 20th-century language, be more “conviction-prone” than jurors
unwilling to return a verdict of death.

In the landmark case of Witherspoon v. Illinios (1968), the
Supreme Court of the United States (SCOTUS) held that only jurors who
make it “unmistakably clear” that they would in no case vote for
death, or are unable impartially to decide guilt or innocence, may be
excluded for cause. Four years later, in Furman v. Georgia
(1972), the Court might have rendered the whole issue happily moot
when it ruled that all existing state and federal death penalty
statutes were unconstitutional under the Eighth Amendment as “cruel
and unusual.”

However, in Gregg v. Georgia (1976), the Court responded to a
political backlash against Furman by upholding some new death
penalty statutes as constitutional, with the execution of Gary Gilmore
in 1977 ending a national moratorium of almost ten years. In 1985, as
part of a trend toward “deregulating death” as a phrase of the time
put it, the Court in Wainwright v. Witt weakened
Witherspoon by holding that any views which might
“substantially impair” a juror’s ability to follow the law were
grounds for proper exclusion.

In Jahar’s federal trial in 2015, as in a Massachusetts state trial in
1848, the death-qualified jury could not accurately reflect the
conscience of the community, nor the respect for life which prevails
through the civilized world, from Sweden to South Africa to the
Solomon Islands; and from Argentina to Azerbaijan, Armenia, and

Thus it is not a question of judging the 12 jurors who were placed in
a dehumanizing situation by being ask to follow an immoral law, but of
delegitimatizing that law of which they are also victims. If Jahar had
been tried for his crimes in a court of the State of Massachusetts,
these same jurors would have had the much simpler and more humane task
of assessing his guilt for the murders of the three marathon victims
and Officer Collier, and returning a fair verdict that would not
involve more senseless killing.

In condemning a system that made these 12 jurors oracles of violence
rather than justice, we must emphasize the victimization visited on
these jurors, with enduring psychological after effects which only the
years and decades can fully reveal.

First, although sitting as a juror in any murder trial must be an
ordeal often heightened by the need to view graphic autopsy reports
and photographs and accounts of the tragic scene, the prosecution’s
quest for the death penalty evidently made them dwell with special
emphasis, almost a certain grim relish, on the details of the injuries
inflicted by the pressure cooker bombs, and on the best medical
assessments as to the pain endured by Krystle Campbell, Martin
Richard, and Lingzi Lu during the seconds or minutes they remained on

Some of this evidence might also have been presented in a
Massachusetts court, for example to establish the killings as
“atrocious or cruel” as one definition of first degree murder
(carrying mandatory life imprisonment without parole, LWOP). However,
in that case, there would have been no need or motive to inflame a
jury’s anger in order to make legalized killing look like justice.
It’s one thing, and fairly obvious, to show that pressure cooker bombs
are horrible weapons — another, to dwell in such a studied fashion on
this brutal truth in order to shred a jury’s ability to empathize with
a defendant and feel the human solidarity that would make one choose

Yet even with this onslaught of graphic evidence, the jurors did not
totally lose their ability to empathize with the defendant: as they
deliberated, they must have suffered the “excruciating agony of the
spirit” described by Justice Harry Blackmun in 1972, when he wrote a
dissent in Furman explaining why at that time he felt
compelled to find the death penalty constitutional, despite his
personal “abhorrence” to all it stood for. In 1994, he reversed
himself and concluded that it was unconstitutional all along, many
executions later.

By nonviolently struggling against and preventing Jahar’s execution,
we can spare the jurors at least some of the trauma that having
authorized a killing after an agonizing process of deliberation might
cause them over the years. We act not out of anger toward these
victims of the system, but out of love and compassion for them.

2. A show trial: The ethical tragedy for the prosecutors.

The task of seeking the death penalty in a society where it is clearly
a gratuitous and rare punishment retained mainly out of political
considerations is inherently dehumanizing, because it involves
mobilizing ideas and emotions to motivate jurors to kill where a
sentence such as LWOP in a supermax facility like ADX Florence would
clearly suffice to protect society from even “the worst of the worst.”
It also involves, in the name of “fighting terrorism” or perhaps
asserting a certain imperial “American exceptionalism,” treating a
19-year-old boy at the time of the crimes as some demonic embodiment
of “the terrorist threat” itself.

Unfortunately, the human tendency to adapt to the system applies to
federal prosecutors as well as the rest of us. Adapting to the setting
of a death penalty prosecution for Jahar meant a willingness to equate
a 21st-century criminal justice system in a supposedly civilized
country with a ritual under color of law to propitiate public anger
and fear after the Marathon bombings by conducting a human sacrifice
with Jahar as the one available candidate.

Part of this ritual were the incredibly complicated jury verdict form
and findings for the penalty phase — something that overwhelmed me a
bit despite some 35 years of experience as a lay advocate with this
area of law. I recall that in the 1970’s, Florida’s penalty phase
verdict form for life or death was a single page. Sometimes I reflect
that my fascination with the intellectual subtleties of death penalty
law in the U.S.A. — a lore that strangely entrances me even as I
strive to abolish it except as an historical curiosity — is like of a
nuclear physicist intrigued with the fine points of weapons design
even while seeking universal disarmament.

But the gut reality behind all the fine interpretative subtleties is
simple. The ultimate question would be whether the jury could sense
and maintain enough of a human bond with Jahar that the natural
inhibition against killing him — as opposed to punishing him by
imprisonment, however severely — would lead to a verdict of life.
This prosecutorial task of severing the human solidarity between
defendant and jury is as demeaning to the prosecutor and jurors alike
as the process of humans training dogs to disregard their normal
species solidarity and fight to the death as sport.

And the prosecutors seem to have clearly realized that simply
documenting the ample horrors of the crimes — whatever the degree of
Jahar’s culpability as compared to that of his older brother Tamerlan
who died of wounds suffered during the Watertown shootout — would not
suffice to sever this bond of empathy and achieve the lethal verdict
they sought.

And so the prosecution not only presented and, if it were possible,
amplified the horrors of the murders, amputations, and rippling waves
of harm expanding far beyond Boylston Street where the bombs went off,
and the Massachusetts Institute of Technology where Officer Collier
was murdered.

Rather, they set out expertly to demonize Jahar. If he bought milk at
a Whole Foods store after the bombings, this was not merely proof that
humans after the best or worst deeds tend still to seek out food and
drink: it was a sign of “lack of remorse” or total lack of human
feeling. One might ask about drone operators who presumably also go
shopping after their lethal missions, and reach the same verdict:
people who believe that the killing in which they engage is justified,
however rightly or wrongly, generally go on with life as best they
can, at least until for some reason they break out of their moral
inertia and question their choices (and any authority they may be

They sought to make his age of 19 at the time of the crime a
“weightless” factor in mitigation by arguing that being recruited for
military or paramilitary action involving the bombing of innocents was
not an “immature” kind of crime. Anyone familiar with the large number
of young people — adolescent women and men — who join various
groups, private or state-sponsored, carrying out such terrorist
attacks based on various political ideals, must find this claim as
absurd as it is contemptible in its object to make a deluded young man
into the inhumane face of the “terrorist threat” itself.

Perhaps the height of absurdity and hate propaganda came when the
prosecution, in its opening penalty phase presentation, juxtaposed
photographs of the four murder victims (whose fatal injuries had been
recounted in great detail during the guilt phase) with the now famous
still photo of Jahar extending his middle finger to a surveillance
camera. That was a two-minute hate out of Orwell’s “1984.”

The defense was able to show the full context of Jahar using the
camera, while in a holding cell awaiting a court appearance, as a
mirror where he made various gestures, some possibly with rap
allusions — hardly a factor that should tilt the scales toward death.
Later, Marshal Michael Kevin Roche testified for the defense as to how
he had upbraided Jahar for what looked like a disrespectful gesture —
and he apologized, and agreed to follow the rules as Roche asked.

But at each point, the prosecution did exactly what an immoral and
inhuman law called upon it to do — unless it wished not to seek or to
drop the death penalty: dehumanize Jahar to the point where the jury
would feel ready and indeed legally obliged to kill him.

If the prosecutors had asked me for advice, I would have said: “Either
persuade President Obama and Attorney General Holder to drop the death
penalty, likely through a plea bargain (which the defense evidently
sought, as Judy Clarke has done successfully in some of her most noted
cases); or else resign, and consider using your expertise and
experience to advocate for abolition. Abolitionists will welcome you.”

Similarly, to Jahar and Tamerlan, I would have said: “Strategic
bombing of civilians is both futile and immoral under many sacred
codes, including that of Islam, as well as under international law.
Let’s leaflet the Marathon together and educate the people about the
crimes being committed in the name of this country’s foreign policy.”

Finding a path beyond the moral horrors of the Marathon bombings and
shooting of Officer Collier, and of 12 good and decent citizens
incited by show trial tactics to condemn an adolescent offender to
death, is very difficult — but affirming the humanity of both Jahar
and his prosecutors, while resolving to prevent the killing of Jahar
which would also cause further trauma to the prosecutors (even if they
do not yet realize this) is a first step.

3. The death penalty as a gladiatorial arena: Traumatizing survivors.

After the end of the guilt phase and the conviction of Jahar on all 30
counts, the Richard family in a public statement asked that the case
end with a sentence of LWOP, a waiver of all appeals, and an
opportunity for their family and others to enjoy a private space for
healing. That would have been a moral and fully legal resolution for
the Richard family, the community of Boston, and the nation and world
at large.

It is very important to emphasize that murder survivors who seek LWOP
as a resolution may do so for various reasons. Some, like the family
of Matthew Shepard, are not opposed to the death penalty, but simply
find that LWOP better meets their own needs to be able to say “case
closed” and get on with healing. Some, like victim and advocate Kathy
Garcia, likewise are not philosophically or religiously opposed to
capital punishment, but have learned through hard experience that the
system does immense harm to victims, and should be abandoned on that
practical basis. Still others, like Bud Welch, are opposed in
principle to executions — for example, because they violate religious
imperatives to respect life, and perpetuate the cycle of anger and

The Richard family focused on a perspective these various views seem
to share in common: the need for peace and healing outweighs the
prolonged litigation and publicity brought about by death penalty
appeals, however one might view the morality of the penalty in

Thus in seeking to break the cycle of violence and pain which the
Federal Death Penalty Act of 1994 has served to promote, and to do so
as quickly as possible, we should especially invite the participation
of murder survivors, who have been in the forefront of abolition
movements in several States (e.g. New Jersey, Connecticut, and
Maryland). We should also emphasize that the exorbitant amounts of
money spent on the gladiatorial struggle of life or death in our
appellate courts can be redirected to victims’ services, and also to
strengthening community-based policing, genuine efforts to prevent
bombings like those at the Marathon, and also mental health services
and the like to reduce the risks of violence.

4. Resistance to the death penalty and (inter)national security.

We must also squarely point out that the death penalty may elevate
convicted offenders to martyrs in the eyes of other sharing their
cause (or the cause they espoused at the time of the attack, even if
they now feel remorse and take a different view); and powerfully fuels
the same “eye-for-an-eye” ethic that can incite attacks on civilians.
Further, of course, civilized countries interested in countering
terrorism may refuse to cooperate with countries like the U.S.A. when
this may bring the death penalty into play. Thus our movement is
promoting national and international security in a true sense.

5. Saving Jahar, saving ourselves: A not-so-distant mirror.

The prosecutorial quest to demonize Jahar so that the jury might lose
their normal inhibitions to kill him may have been fueled not only by
the deadly logic of the Federal Death Penalty Act of 1994, but by
another motive, however unrecognized. This motive would be a need to
draw a distinction between an “inhumane” Jahar so evil as to be worthy
of death, and the young adults, often around Jahar’s age of 19 at the
time of the bombings, who have bombed cities and knowingly killed
children just as vulnerable as Martin Richard, and carried out
“signature strikes” with drone predictably bound to kill innocents, in
the name of the same government seeking to offer Jahar as a human

In the real world, adolescents and young adults join lawfully
organized national militaries, and a range of less official armed
movements, that often commit atrocities. And, at least while they hold
to whatever ideas or chains of command govern these organizations,
they tend to view these atrocities as legitimate soldiering, however
much they may regret the consequence to “innocents.” One might guess
that Jahar was buying milk as a diversion after the bombings, just as
the Hiroshima aviators got drunk and partied on Tinian after knowingly
slaughtering thousands of children like Martin Richard. We need not
suppose that either Jahar or the Hiroshima crew members were reveling
in the death and mutilation of their victims. Rather, they may have
been seeking escape from the reality of what they had done, and also
pushing below the surface the Post-Traumatic Stress Disorder (PTSD)
that can affect those causing as well as suffering these mass casualty

The sheer heartlessness of trying to kill Jahar after the efforts that
loving teachers put into his training, and first responders and other
healers put into saving his life after his head wound and other
injuries that put him in critical condition, shows us that the death
penalty is an immoral law to be resisted by all nonviolent means that
may be appropriate and effective in a given situation.

But an acknowledgment of the horror of his crimes, whatever his degree
of culpability in relation to his elder brother (and the death penalty
is inappropriate for anyone!), should lead us to take a closer look in
our collective mirror at U.S. foreign policy. Are our drone operators,
like Jahar at the Marathon, carrying out violence which, however
sincere their ideals may be, causes harm and suffering to innocents
which is not, in fact, “allowed”?

In the course of our nonviolent struggle as the larger jury of the
civilized world to save Jahar’s life, end the death penalty, and
establish a world based on international human rights law as the
foundation of true security, we will encounter and share many views on
these larger questions of foreign policy. But embracing the humanity
of Jahar, the victims his actions harmed, his jurors, his prosecutors,
and our neighbors at large is a first step toward changing the
correlation of social forces toward respect for life.

Margo Schulter
15 May 2015




  1. jane24
    May 16, 2015 at 4:07 pm

    Thank you, Margo. I very much like that you have written concerning the negative effects of the death penalty in the case of those aside from the condemned. This is something I wish more were both aware and mindful of.

    This article in the NYT mentions mixed feelings in Boston in regard to Tsarnaev’s death sentence:

  2. ThingsComeUndone
    May 16, 2015 at 4:32 pm

    “In order to obtain a federal death penalty verdict despite theabolition of the death penalty in Massachusetts since 1984, the
    government used the traditional tool of death qualification: excluding
    all jurors unwilling to return the death penalty in what they found to
    be an appropriate case. ” I think the argument is that people must believe something is wrong if they are to find someone guilty provided he is guilty. However this paragraph shows overreach I can think Dzhokhar is guilty but disagree with the death penalty on moral grounds so why should I and others like me be excluded from a jury?

  3. ThingsComeUndone
    May 16, 2015 at 4:39 pm

    Next Dzhokhar and his brother did this in response to what America is doing in Iraq and Afghanistan where we torture and kill civilians accidentally so often its no accident. 2 wrongs do not make a right but it should be noted when Americans do things like this they rarely ever go to trial and even if they do are rarely found guilty much less serve serious time. None have gotten the death penalty. If we are trying to send a message about American Justice to foreign countries this is not the message we want to send our police shooting African Americans weekly? is already sending the wrong message.

  4. ThingsComeUndone
    May 16, 2015 at 4:56 pm

    Can America honestly say we don’t use the death penalty to punish Minorities, Poor People, the Slow even if evidence is lacking? Chicago gots a police black site where they torture confessions Rahm isn’t closing it, is it ethical to use the death penalty because we are sure the Dark Guy is guilty….this time?

  5. Libertarian
    May 16, 2015 at 5:00 pm

    Well, the peaceful non-violent message is most appreciated. However, if Dzhokhar Tsarnaev is to be saved (which he can be at this point still), it’s going to call for a more direct and aggressive (assertive) position and plan.
    I feel the Defense team has quite a bit of culpability in this too. The first trial phase could have at least resulted in doubts about his part in the 8 year olds death. There is simply not enough proof he set down a Black backpack with a fox emblem on it. He wasn’t even near the other bomb site and there’s no evidence that the MIT officer was murdered by either brother. They don’t know where the bombs were made, and both backpacks the boys carried did not have pressure cookers in them. Go look at them. Tamerlan’s was fairly flat and Dzhokhar’s was sagging in, in a few places. Your backpack would be bulging with Pressure cooker in it. Nothing more has been said in Media or Gov about MIT guy named Morley (who was caught on campus, he worked there, with pressure cookers), Misha. All of Dzhokhar’s possible witnesses that could have helped him, are in jail, deported, and one was murdered by the FBI (Todashev). These people have all been silenced. Maybe they don’t anyone to find out about Tamerlan being an informant.

    The Defense relied on a strategy of “it was him”, implying he carried out the murders. They then remained silent throughout the attack the Prosecution did. Judy Clarke, et al, has ensured that Tsarnaev will not get a fair appeal and lose, unless people start getting more direct and STOP being scared of FBI and such.

    The Defense needs to be replaced by an independent team. It’s tiring being called names when we direct accusations at Government entities. Why would anyone think the Government was not capable of Boston (elements within it)??

    I’m getting tired of people always tip toeing around Government. I think most people actually DO KNOW that the Government has been up to no good and that the FBI, at least, was highly involved with the Tsarnaev family, particularly Tamerlan. What are you scared of? All the flowery talk and talk about peace is great, but it’s not what’s going to get Dzhokhar off the Death Penalty. Getting him a decent Appeal is going to take Cold, calculating, facts, logic, and an assertive strategy that will NOT GIVE IN TO Government intimidation.

    My feeling on Dzhokhar is he has been drugged, and in his first appearance in court after about 3 months after the bombing, he had all kinds of swelling, suggesting somebody was working him over. Also, he has two sisters and some nieces (i think) and we saw what they did to Todashev. I think we are dealing with Government elements that have gone completely to the dark side.

    Everyone has already “cooperated” and Judge O’Toole, interestingly, commended Dzhokhar “for his cooperation” which I thought was actually a passive aggressive form of shoving his face in it. O’Toole made it clear he wanted the boy dead. And look where it got him.

    No. This time they need a more aggressive team. Unless someone has the GUTS to actually defend this kid he will die.

  6. Libertarian
    May 16, 2015 at 5:02 pm

    I agree with you. We are dealing with really bad government elements.

  7. ThingsComeUndone
    May 16, 2015 at 5:16 pm

    ” However, if Dzhokhar Tsarnaev is to be saved (which he can be at this point still), it’s going to call for a more direct and aggressive (assertive) position and plan. ” Agree I like the alternate suspect Morley. I like the idea they may not be guilty the back packs looked not filled enough to have pressure cookers inside but someone is guilty. Assuming someone is guilty and right now that someone is Dzhokhar can we save him from the death penalty if so how?

  8. ThingsComeUndone
    May 16, 2015 at 5:45 pm

    “I’m getting tired of people always tip toeing around Government. I think most people actually DO KNOW that the Government has been up to no good and that the FBI, at least, was highly involved with the Tsarnaev family, particularly Tamerlan.” Several people have noted the NSA should have noticed the brothers were watching terrorist video’s, going to a Muslim area of Russia should have set off a flag, Russian Intel agency telling FBI to watch them should have set off a flag. either the FBI is incompetent or they had turned the brothers this would not be the first time the FBI helped some wanna be terrorists try and commit a terror plot. But it might the first time the FBI failed to stop the terror plot they helped set up before it happened. Still the FBI being incompetent is a valid theory we can’t prove anything.

  9. mulp
    May 16, 2015 at 5:47 pm

    Ok, I think capital sentences are a waste of tax dollars so the majority of voters who want lower taxes should be opposed to capital sentences, but they want the free lunch of lower taxes and executing lots of people.

    I would argue that the campaign be turned into a tax hike campaign to raise money for a robust appeals process that will prove completely that there can be no doubt, with a fund of at least $50 million for the defense, all funded by a “kill-the-criminal” tax surcharge you compute after completing all the rest of the IRS 1040. But make it optional, so that if less than 50% of taxpayers add the “kill-the-criminal” tax, all capital sentences would be commuted to life.

    Too many people want the free lunch of jack boot government without paying taxes to fund it. Force them to pay taxes and they will no longer want government to do that.

  10. marym
    May 16, 2015 at 5:52 pm

    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.

  11. mulp
    May 16, 2015 at 5:53 pm

    We are the government. We the People who vote in every election decide who represents us in all the State legislatures and in Congress. In half the States, progressives need to rejoin the Republican party where the progressives began, and make sure the Republicans who win the Republican primaries are progressives. Progressives need to run in the Republican primary and get out the vote of progressives to elect progressive Republicans. Make the Republicans on the November ballot for governor, legislature, and Congress progressives, and the laws will be changed.

  12. May 16, 2015 at 7:12 pm

    We are the government. We the People who vote in every election decide who represents us in all the State legislatures and in Congress.

    Hogwash! The recently published Gilens and Page study amply documents that our form of governance, notwithstanding the “quadrennial extravagance,” is an oligarchy/plutocracy.

    Not only do ordinary citizens not have uniquely substantial power over policy decisions; they have little or no independent influence on policy at all.

    By contrast, economic elites are estimated to have a quite substantial, highlysignificant, independent impact on policy.

    Another study published in the Political Research Quarterly found that only the rich get represented in the US senate. The researchers studied the voting records of senators in five Congresses and found the Senators were consistently aligned with their wealthiest constituents and lower-class constituents never appeared to influence the Senators’ voting behavior. This oligarchic tendency was even truer when the senate was controlled by Democrats.

    In that article we also we raised this issue by quoting a Supreme Court Justice, former US president and a sitting US Senator:

    “The legitimacy of the US government is now in question. By illegitimate we mean it is ruled by the 1%, not a democracy ‘of, by and for the people.’ The US has become a carefully designed plutocracy that creates laws to favor the few. As Stephen Breyer wrote in his dissenting opinion, American law is now ‘incapable of dealing with the grave problems of democratic legitimacy.’ Or, as former president, Jimmy Carter said on July 16, 2013 “America does not at the moment have a functioning democracy.”

    “Even members of Congress admit there is a problem. Long before the McCutcheon decision Senator Dick Durbin (D-IL) described the impact of the big banks on the government saying: ‘They own the place.’ We have moved into an era of a predatory form of capitalism rooted in big finance where profits are more important than people’s needs or protection of the planet.”

  13. jane24
    May 16, 2015 at 8:26 pm

    Margo Schulter in response to jane24:

    Thank you, jane24, for all your help in posting my article, and for your comment which gives me chance to clarify what my focus is, and also the ground I’m not covering.

    As you neatly sum up, my focus is on all the people affected, and why the death penalty hurts them all. We can discuss that more, but there’s a very important limitation here. I’m looking for why the death penalty is wrong for Jahar in the context of why it’s wrong for anyone. My reaction around noon yesterday (my time) when that verdict came in on Twitter: if you’ll forgive a military analogy from a pacifist, it felt like Dunkirk maybe did to the UK 75 years ago in 1940. You know, “We will fight on the beaches, we will fight in the streets” — I’m going to fight nonviolently, tooth and nail, to save Jahar’s life and end this death penalty atrocity!

    The article in the New York Times that you helpfully linked to suggests an “unsettled” mood in Boston; but if I were back there, where I lived seven years, I wouldn’t feel unsettled at all: I hope I’d be picketing or leafleting, going to meetings and rallies, the whole nine yards.

    Anyway, since around 1977-1978, I’ve focused (more intensely at some times than others through the years) on death penalty law in the narrow sense of constitutional and statutory law and history relating to capital punishment and the penalty phase decision for life or death — not all of the innocence/guilt issues that can come up, or how to test the credibility of government evidence or informants, etc., etc.

    But in cases where the prisoner might be innocent — as it seems that around 4% of those on Death Row likely are, according to two recent studies — then proving innocence is obviously the best way to get them off Death Row, and out of prison (sometimes I’m tempted to forget the last part).

    What I might add is that there are levels of legal focus in approaching these issues. Someone like Judy Clarke specializes in the trial of death penalty cases: pretrial motions, and then navigating the second-by-second decisions that could mean life or death for a client — judging where the jury is at with a given witness, or being careful to preserve some objection for appeal.

    Then there are appellate attorneys who specialize in the issues raised if someone has been sentenced to death, mostly based on the specific facts (guilt and penalty phases), but sometimes involving more general constitutional questions and challenges to the death penalty.

    As a lay advocate, I do more “research and development,” looking into current and recent cases and law review articles, but especially obscure historical stuff from the 18th-19th centuries that even an appellate death penalty attorney might not have much time to read. It’s largely an art of serendipity, of reading something out of historical curiosity and finding “Wow, this is so timely to show that the death penalty is unconstitutional — 222 years later!”

    Of course, I’m also interested in all the human rights issues and activism for death penalty abolition through the centuries. But on the nitty-gritty of the FBI and the Tsarnaev brothers, I may not be the likeliest authority — but that doesn’t mean it’s not as important as anything I’m focusing on!

  14. karenjj2
    May 16, 2015 at 8:31 pm

    Join the discussion…fully agree, truth_keys; there was no evidence presented that i could discern, just victims. this “trial” is remeniscent of the ones in salem where the accused were forced to prove their innocence …

    what continues to amaze me is the stark difference between the Oklahoma City bombing (200+ killed including nursery school children) and this one. the accomplice is serving LWOP. if evidence actually proved Jahar guilty, he was an accomplice. welcome back to Salem, MA.

  15. karenjj2
    May 16, 2015 at 8:34 pm

    forgot to add time at my comment (not 25 days ago) 8:35 edt

  16. jane24
    May 16, 2015 at 8:36 pm

    Identify with your reference to “Salem”, karenjj2, and some of that which I am hearing expressed in MA makes me very sad.Have we only come this far?

    I have followed this trial closely and was able to attend on several occasions. As I have said many times before: Much evidence was presented to prove that bombs were detonated. Little, if anything, which could be considered conclusive, was offered in respect of who was responsible for the planting and detonation of those bombs.

    The FBI admit that they do not know who built the bombs or where they were built. Isn’t anyone curious?

  17. jane24
    May 16, 2015 at 8:40 pm

    So many are blind to the facts in this case. The lack of desire to seek the truth astounds me.

    Btw: At his arraignment in July 2013, DT was still recovering from gunshot wounds sustained during his capture at the boat, hence the swelling and disfigurement. (And yes, another occasion when the police opened fire on an unarmed suspect.)

  18. jane24
    May 16, 2015 at 8:44 pm

    Agreed, TCU. Not only is the death penalty an obscenity, it’s application in the US illustrates disturbing discrimination. Black Americans are the demographic group most likely to be executed. (Either as a result of the death penalty, or, more recently, at the hands of the cops out on the street.)

  19. jane24
    May 16, 2015 at 8:45 pm

    I’m not convinced that DT did do this. Much to suggest that this may not be the case and none of it aired in court.

  20. jane24
    May 16, 2015 at 8:47 pm

    “We” are not the government. “Democracy” in the US is an illusion.

  21. jane24
    May 16, 2015 at 8:51 pm

    Statistics show that the “requirements ” necessary for an individual to sit on the jury in a death penalty case also suggest that said individual is more likely to convict. As you state, such a jury is hardly a jury of ones peers.

  22. jane24
    May 16, 2015 at 8:51 pm

    A glimmer of light! Thanks, marym.

  23. Beverly Lawson
    May 16, 2015 at 9:25 pm

    I do wonder if the early strategy to say “he did it” may have backfired. Maybe some. of the jury wanted to hear another side of the story. Probably would not have had any other outcome with all those “death qualified” but maybe it was too unsettling. My heart aches that as a people so many still think the dp is OK….just adds to the death total. Really sickens me. Some of the LWOP families may speak out….

  24. jane24
    May 16, 2015 at 9:43 pm

    I would like to think, Beverley, that the tears reported, in the case of at least a couple of the jurors, might indicate some regret as regards their recommendation of the death penalty in this case? Perhaps “peer pressure” was brought to bear?

    Think it is safe to say that this jury had decided upon their verdict before the trial even began. The time they took, in both the guilt phase and the penalty phase, was barely enough to fill out the documentation. They did not deliberate. Shameful, imo, that they applied so little thought when a life was at stake.

  25. TalkingWarrior
    May 16, 2015 at 9:56 pm

    Excellent article.

    And thank you so much for the link. I’ve been looking for a new Home Page since FDL made its articles unreadable on my mobile, and your link prompted me to explore the Popular Resistance site. I have now reset my mobile’s Home Page to Popular Resistance. Thanks again!

  26. jane24
    May 16, 2015 at 10:13 pm

    More reason to doubt can be found here:

  27. karenjj2
    May 16, 2015 at 10:24 pm

    i seriosly doubt that he did this, too. especially as the 3 students closest to Jahar are in prison. they know firsthand Jahar’s demeanor before and after the bombing. they willingly tried to protect him by disposing of fireworks which bomb experts said were not used in the bombs.

    no testimony re brother’s recruitment by fbi nor the bomb drill that took place that day amidst the chaos. and, of course, the brothers calm, routine days followed by a night of chaos and panic driving around a small area in Boston.

    Jahar’s stoic appearance throughout the “trial” is easily explained by tranquilizers. and, a “defense attorney” that opens with “he’s guilty” !!! “show trial” start to finish.

    10:23 edt

  28. pbszebra
    May 16, 2015 at 10:29 pm

    Outstanding essay Margo, thank you. Also thank you Jane for posting.

    The Tsarnaev trial has been about much more than one young man. Although his life is very important, he is but a pawn in the grand scheme. The government had their sights set on a conviction and death sentence from the start. The government has convinced themselves that death for this young man is what the people of Boston want and need. There has been no consideration for the people themselves and how they will continue after this exhibition. You are correct that many, many will be affected for years to come.

  29. karenjj2
    May 16, 2015 at 10:34 pm

    agree completely that this “bomb drill” got out of hand; unknown if deliberate or not.


  30. NightriderXP1
    May 16, 2015 at 10:49 pm

    I hate to sound like a broken record but the site layout is broken once again when viewed in Opera. I thought after the last fix lasted for more than 24 hours, the repair was going to be permanent this time. Unfortunately the layout problem is back again…

  31. jane24
    May 16, 2015 at 11:10 pm

    Good to se you here, pbsz! Agreed. (But thinking, maybe, that the scope of that “grand scheme” likely extends far beyond Boston?)

  32. pbszebra
    May 16, 2015 at 11:17 pm

    Yes, agreed Jane, far beyond Boston.

  33. May 16, 2015 at 11:18 pm

    Why aren’t there people marching on Congress to Indict Brennan, Obama and Bush for Mass Murder and War Crimes?
    Another Innocent Soul for these Satanic Monsters, Running Our Government, to Slaughter.

  34. karenjj2
    May 16, 2015 at 11:18 pm

    excellent and very informative article, Margo; recommended with sincere pleasure.

    i’ve also had trouble with accessing, commenting. i did find that you can glean some by opening the “rss comments” at bottom of fdl front page tho filled with html signs. you might have some luck coming in via disqus dot com. as Kevin explained on first day, all you need for an account is email you used for fdl. i used karenjj2 in name and my fdl pass and it worked. did a comment immediately. then went to email and used link provided. did look at settings and made sure “email comment replies” was not checked. tho you might want email replies if can’t get in.

    had a terrible time with “smartphone” ’til fdl commenter “cemokeon” (<—- bad spelling) gave link to disqus browsers that work. opera mobile is good on recent machines, opera mini sorta works on my old windows phone. if older machine (ascii? ), try coming thru disqus; the rss link is all i can suggest otherwise.

    hang in there; bet techs are trying to figure out something… meantime, Jane is a treasure, great writer, too! ^..^


  35. OldGold
    May 16, 2015 at 11:22 pm

    Thank you for posting Margo Schulter’s thoughtful essay.

    Why you continue to link woodybox’s preposterous nonsense is beyond me.

  36. dennis crain
    May 16, 2015 at 11:39 pm

    it would be a wonderful world to live in if we didn’t have the death penalty, but , the reason we do have the death penalty is because we have so damn many tsarnaev’s in this world, and i’m positive the people who died as a result of his actions wish the death penalty imposed on them hadn’t have been. i for one am not one damn bit interested in saving his life, considering the obvious fact that he didn’t have any problem whatsoever putting an end to their lives.

  37. jane24
    May 16, 2015 at 11:41 pm

    I do fear for those three students and am very concerned about what sentences they may receive for what, at worst, amounts to no more than poor judgement.

    As my comment somewhere else on this thread, testimony concerning so much was excluded and/or omitted in this trial.

    Regardless of one’s opinion on guilt or innocence, the manner in which this trial has been conducted, and the presence of the death penalty in this case, should be cause for both concern and protest.

  38. TalkingWarrior
    May 16, 2015 at 11:47 pm

    I strongly with you about “peer pressure.” I was 26 when I served on a jury and was shut down by a shouting, bullying older white man for voicing my doubts within the first hours of our three days of sequestration. An elderly white woman became our one hold-out, and he flew into a rage at her for wasting his time, because, he said, his business was losing money every vote we took when she kept to her not guilty conviction. Late on the third day, we finally voted the young black man guilty of three violent felony counts.

    Forced jury service – because I had dared to register to vote – was for me a terrible experience, especially the polling of the jury when I had to stand and answer the judge – in front of the just-convicted young man – that, yes, I had voted guilty, despite my unvoiced doubts.

  39. TalkingWarrior
    May 16, 2015 at 11:58 pm

    It’s an unreadable wreck on Android v. 4.1+, too, especially the articles.

    Good to see you back. Although I have decided that FDL’s PTB don’t give a damn about squeaking wheels, mice, proles.

  40. jane24
    May 17, 2015 at 12:04 am

    More than happy, OG, to have the opportunity to post Margo’s essay, as I both respect and very much appreciate her eloquent and reasoned opposition to the death penalty.

    I also respect and appreciate WB’s continued efforts in seeking the truth.

    You are, of course, entitled to your opinion, but I would respectfully ask you to refrain from being insulting.

  41. TalkingWarrior
    May 17, 2015 at 12:04 am

    It all adds up. Now we have show trials that will be historic for their injustice while the criminals running the show steal us blind, having already made the US (that’s us, folks!) Murder, Inc. world-wide.

    The Marathon pressure cookers will be a footnote when the pressure building among the US populace finally blows.

  42. marym
    May 17, 2015 at 12:06 am

    “In Boston, support for the death penalty has dwindled even further: Only a quarter believe it is ever appropriate, and just 15 percent think Tsarnaev should be executed. Almost 66 percent of Bostonians and nearly 63 percent statewide favor a life sentence. “

  43. jane24
    May 17, 2015 at 12:07 am

    Believe they do. Was one of those “squeaking wheels” myself, for a while, during the recent “troubles.” I am sorry that I am unable to help with technical issues but advise you to keep “squeaking” to the “ptb.”

  44. TalkingWarrior
    May 17, 2015 at 12:12 am

    Well, I’m still here, squeaking … because of the community not the … PTB (to be less pointed and get myself banned)

  45. NightriderXP1
    May 17, 2015 at 12:15 am

    Just like the last 4 or 5 times I reported this, I’m losing count at this point, they fixed the problem quickly, at least for me. It looks good again in Opera. When it’s broken, which seems to be every day now, I certainly can’t handle the layout, so I don’t bother reading anything here. This is a strange and annoying problem for this site. I hope they come up with a permanent fix soon…

    How does it look for you now???

  46. jane24
    May 17, 2015 at 12:20 am

    I am sorry, TalkingWarrior, to hear of your past experience and that of the woman “hold out” you mention. Your account of juror intimidation is not the first I have heard and prompts the question as to how prevalent such instances may be? Such occurrences obviously serve to slant the course of justice. (And I really think this may have occurred in the case of jurors seated in US v Tsarmaev. The foreperson came across as “assertive” to say the least.)

  47. jane24
    May 17, 2015 at 12:26 am

    I will go “squeak” to the “ptb” on your behalf and that of NightriderXP1. Hang in there both!

  48. jane24
    May 17, 2015 at 12:32 am

    Thank you. (And I hope your comment here may have been of some help to TalkingWarrior and NightriderXP1.)

  49. TalkingWarrior
    May 17, 2015 at 12:38 am

    Took me forever to get back in through Disqust’s “Reload?” Purgatory after refreshing, but …

    Damn! Just like last time, now it’s at least readable. Could be better, but I’ll settle for readable, for now.

    Weird that when *you* complain, voilá, instant fix.

    Visit more often, squeaking as. necessary

  50. starrynight
    May 17, 2015 at 12:44 am

    thank you. Caravan To Midnight – Episode 269 David McGowan Talks Boston Marathon – YouTube

  51. TalkingWarrior
    May 17, 2015 at 12:51 am

    Missed Gosztola’s suggestion re signing in via Disqust; willgive that a try.

    cmk’s list was useful, but it said Disqust supports all Android versions from v. 1.x+ on — I’m running v. 4.1+, on which it is terrible. cmk did note in response to me that Disqust just wasn’t designed for “smartphones.”

    May give RSS suggestion a try later, but I find the near infinite scrolling through full articles on the front page to get to the RSS tab at the bottom a daunting proposition.

    Edit: Only have trouble getting in when I clear my cookies, which I haven”t been doing nearly as frequently as usual – because of FDL’s Disqust sign-in difficulties. I feel like I’m being forced to be tracked, and, yes, it has changed my online behavior.

  52. jane24
    May 17, 2015 at 12:53 am

    Thanks for the link. This is encouraging and in contrast to the views being loudly expressed in the Boston area over the last 24 hrs. Nice to know the noisy people truly are a minority!

  53. NightriderXP1
    May 17, 2015 at 12:55 am

    Every time I’ve reported this, it seemed to be fixed within minutes, so someone seems to be paying close attention. Whoever is fixing it knows exactly where to find the problem…

    I’ve offered technical support for years and a few times, I’ve seen similar behavior on sites that have multiple admins who have the ability to update the code. One admin may be overwriting mods made by others if they aren’t downloading the latest and greatest versions of the files before modifying them, so formerly repaired problems keep resurfacing. My hunch is that’s what’s happening here…

  54. karenjj2
    May 17, 2015 at 12:56 am

    TW and XP made it in here so they’re on par with me: still have glitches and just saw hash over at front page now. aside from getting accustomed to disqus system, we’re struggling with not-so-smart phone op systems. AND there are millions of variables to juggle to get 3 phone systems with different versions, 3+ browsers with different versions plus desktops, plus communicating between them all — no wonder the techs are bald.

  55. karenjj2
    May 17, 2015 at 1:03 am

    opera mobile for android is what i’m using to type this, TW. ez install at google. definitely need signin at disqus as described above. cmaukeon deserves the credit; he fired up late nite for us. btw.


  56. TalkingWarrior
    May 17, 2015 at 1:06 am

    I strongly suspect you’re right. Where’s the QA team before they put out new code live?

  57. jane24
    May 17, 2015 at 1:14 am

    Thanks for the explanation, karenjj2. I do know of a couple of others who are experiencing problems with FDL via phones. Technically challenged here so can be no help at all. (You’re probably right about the techs…and with good reason!)

  58. karenjj2
    May 17, 2015 at 1:16 am

    on fdl front page, if you see actual number of comments and you’re signed in to disqus, click on “# comments,” then the comments will appear under adverts — takes a few seconds for circle symbol (disqus placeholder) to load .

    1:13edt – a.m.! gonna say “goodnite” to chris at late nite

  59. NightriderXP1
    May 17, 2015 at 1:18 am

    The QA team may be a total of 2 different coders who are the site admins. They may not have learned how to coordinate with each other effectively yet so they may not have established a standard that they can both follow when updating the code. There may be something else completely going on so my hunches may not be true, but I sure can’t think of anything else that might cause this behavior. I suppose special characters in the comments could potentially disrupt the site layout too, so it’s possible that the problem could be caused by a contributor. I don’t think that’s what’s causing this problem though…

    It would be nice if whoever is fixing this could tell us what’s happening. I’m kind of curious…

  60. TalkingWarrior
    May 17, 2015 at 2:02 am

    Most interesting to me – even soon after returning to work – is that the three black jurors, all middle-aged, two men, one woman, hardly spoke at all after the guy blew up at me. Four of us rarely spoke another word after his first, “I don’t care what you think …” – his exact first angry words to me, standing while all the rest of us were seated. He was not the foreman. Thinking just now, the forewoman hardly ever said anything that wasn’t procedural.

  61. jane24
    May 17, 2015 at 2:09 am

    Wow! Not the foreman? Speechless! Again, I wonder how often this kind of thing happens?

  62. furtive
    May 17, 2015 at 2:16 am

    Jahar is aka Obama’s political pawn. Weinreb was aka Obama’s footsoldier & read his political talking points well.
    It is regrettable & mystifying he contributed to his own loss of Liberty, & that of his kids, for fame over TRUTH.-the domino principle.

  63. TalkingWarrior
    May 17, 2015 at 2:17 am

    If the foreman was as you described, I am sure, from my experience that that is what happened. Our bully clearly didn’t want to hear from youngsters and other not white older males got males got the message.

    Were there any age 60-65+ women jurors in Tsarnaev’s trial?

  64. jane24
    May 17, 2015 at 2:29 am

    Yes. More than a couple in this age group, I would say.

  65. Frederick Leatherman
    May 17, 2015 at 3:09 am

    Excellent article, Margo,

  66. Woody Box
    May 17, 2015 at 4:02 am


  67. Spire
    May 17, 2015 at 4:37 am

    Will someone please look at the forensics of this event. look at the photos. the bombs had a blast radius of 1/2 mile, according to reports, and they contained a lot of shrapnel — so, look at the photos in and around the area — where is the damage to the buildings from that shrapnel.
    second, there is hardly any blood. look at the responders who were supposedly dealing with 15 amputations among the victims, along with other injuries. Look at their clothing: where’s the blood? please, just look at the photos.

  68. Steve Dwight
    May 17, 2015 at 5:36 am

    Thank you Margo for this essay, you have a gift! Well written and well argued.

    Being a pacifist automatically entails being anti capital punishment, but is it effective to bed anti capital punishment arguments in a pacifist setting? Are you not likely to drive away many of the readers you seek, and Id like you, to influence?

  69. Beverly Lawson
    May 17, 2015 at 6:52 am

    I woke up this morning thinking about the “death qualified”….talk about a stacked jury. .surprised that element is still allowed = built in bias. No need to deliberate In the penalty stage; that was a given during the voir dire. Prejudice that is an outrage. Thanks

  70. Beverly Lawson
    May 17, 2015 at 7:01 am

    But those LWOP folks were not eligible to be jurors….ie. res ipsa loquitur. No justice in that preordained outcome.

  71. Beverly Lawson
    May 17, 2015 at 7:03 am

    Your vengeance will get us no where; eye for an eye = world of the blind that we seem to have.

  72. marym
    May 17, 2015 at 9:16 am

    Saw some tweets from a Boston activist replying to people claiming to speak for or lecture to Boston about this case or the Olympic bid, pointing out that those people don’t even live in Boston. Whatever the noise may be on the actual street, the noise in the electronic street is a lot of trollery interfering with real discussion.

  73. Woody Box
    May 17, 2015 at 9:39 am

    After the first shock about the surprising DP verdict a surprising intuition has come to my mind – that this farce of a trial will backfire once for all who are responsible for it. Ortiz, Mellin, Weinreb, DesLauriers, Davis, etc. etc.

    Just an intuition, but had to impart it.

  74. jane24
    May 17, 2015 at 10:11 am

    Response from Margo:

    Thank you for some very interesting comments. TalkingWarrior, your story especially moved me, as a feminist and someone with white privilege who knows how the race of defendant and especially victim can skew death penalty cases.

    There was a case in California where the majority on a death penalty jury threatened to kill the holdout for life — but the California Supreme Court held that that was just a joke. I’m not so sure, and your story about that woman who held out makes me even less so.

    To me, the penalty trial of this case, at least, represents the Obama Administration going back to the Salem witch trials. It’s obscene, intolerable, and an attack on civilized standards of behavior and justice. As a pacifist, my motto is resistance “by all nonviolent means.” But I don’t want to romanticize the twisting of the law that’s going on, and seems inevitable once the death penalty gets into the act.

    In theory, the death penalty is supposed to be for “the worst of the worst” — a “monster” hunt, as if even our “worst” murderers were anything but humans, sometimes humans who need rather close security. Deciding whether or not a human being is human is precisely a witch hunt.

    Whatever “worst of the worst” might mean, how can it mean a 19-year-old boy (at the time of the crimes, and assuming guilt) with no previous criminal record, many teachers and friends who recognize his human worth, a playful side he shares with his attorneys? And since his arrest in Watertown, critically wounded in the head and elsewhere, he’s been nonviolent and well behaved.

    According to our current death penalty jurisprudence — a sane death penalty jurisprudence says that the death penalty is unnecessary and therefore “cruel and unusual” period, next topic — no one may ever be executed for a crime committed before the age of 18, however horrible.

    Now Jahar was 19, so that suggests that age would at least be strongly mitigating — weighing very heavily against death. The theory is that death is only for the “irredemable” — and if we absolutely can’t tell at 18 less one day, how likely is a year to make that much of a difference?

    The crimes themselves, of course, were horrible — as I discussed in my diary. But Jahar’s role in placing that pressure cooker bomb wasn’t that different from a young military aviator who delivers a cluster munition or napalm in Vietnam — in fact, the pressure cooker bombs remind me of what I learned about those cluster bombs around 1971 or 1972. Shrapnel, hundreds of fragments in people’s bodies — and the troops who delivered those were hardly “monsters,” just often well-intentioned agents of war crimes.

    So, following the Federal Death Penalty Act of 1994 — and here, I’m taking the view of prosecutor and jury, centered on the law — it may be one of the “worst” domestic crimes, but Jahar is an adolescent who’s hardly irredemable. Again, assuming guilt, an LWOP plea deal is obvious, and more than severe, especially with ADX Florence in the bargain!

    But the Obama Administration wants, not even very harsh justice, but a witchhunt — we must kill a scapegoat to appease the idols of “antiterrorism,” and Jahar is it! It makes Richard Vigurie, who’s against the death penalty at least, look like Eugene V. Debs!

    In a sane penalty phase — an oxymoron, but at any rate a less insane one — Jahar’s age would be way powerful mitigation, especially combined with his lack of a previous criminal record, and his good conduct once arrested. Remember, he’s already getting LWOP for that bomb, and for aiding and abetting in the attempt to steal Officer Collier’s gun, whether or not he wanted any harm to come to the officer. (The risks are obvious, but bank holdups have taken place where armed guards are disarmed and left unhurt.)

    But for the deadly witchhunt, the prosecution makes up new rules, about like this:

    (1) Jahar’s finger episode in that holding cell means he spent two years in “defiance,” although totally nonviolent — like Chelsea Manning or Edward Snow, one is tempted to ask? So all his good behavior doesn’t count. Nor does his response when Marshal Roche upbraids him for that gesture, he apologizes, and agrees to behave as asked from then on. But Tsarnaev was “defiant,” maybe a bit like Saddam Hussein sort of caused 9/11, or sort of had WMD (under the death penalty statute in this trial, indeed he did!).

    (2) Jahar’s age doesn’t mean much, a “weightless” mitigating factor, because the suffering of the victims is so much more important. In other words, if it’s a bad crime, you can and should ignore the part about “judge the person, not just the crime itself.” Downplaying age in this case is obscene.

    (3) Ignore relative culpability, too — a standard factor in capital cases. Focus on those bombs: Jahar spent four minutes waiting before leaving and having the bomb go off (like a bombadier over a city)? He didn’t evidently build the bombs, and it’s not clear how much he understood about how they would affect the victims. But he’s the available defendant at bar, so kill the witch!

    (4) Demonize normal acts, like shopping for milk at Whole Foods. Yes, 19-year-old non-monsters can deliver Vietnam-era Honeywell cluster munitions or napalm (or drone-based missiles) and then have a good meal. Horrible war crimes committed by often otherwise decent humans. But for Tsarnaev witchhunt — buying milk is spectral evidence of monstrosity, kill him!

    (5) Demonize, indirectly but not so subtly, his body language, gait, and demeanor after being shot and critically wounded, including wounds to the face and base of his skull, and gait problems. Make his medical or psychological aftereffects a reason to kill him, with “lack of remorse” as the excuse.

    So we take, under the Received Version, a 19-year old foot soldier for a two-brother paramilitary group, and turn him into Terrorism Incarnate, totally twisting the usual legal standards into Salem, 1692.

    Here, even if the Received Narrative (which I mostly presume) is correct, the Obama Administration is warping the law as it stands to invent an unconstitutional mandatory death penalty for Jahar Tsarnaev.

    Combine that with those horrible, repeat forensic photos and videos of the bombings, designed like flash-bangs to deafen the jurors’ emotional ability to hear and listen to mitigating evidence showing Jahar to be human, and we have a lawless killing under color of law.

    It’s a clash between civilization, which rejects the death.

  75. knowlyn
    May 17, 2015 at 10:35 am

    What I’m sick of is people proclaiming the U.S. jury system the best of the best in the world in a voice of patriotic cliché. When asked what they know about the judicial systems of any or all of the rest of the free world in order to make such a statement, the answer is inevitably nothing or very, very close to nothing.

  76. jane24
    May 17, 2015 at 11:52 am

    Good to know! Thank you, marym.

  77. jane24
    May 17, 2015 at 11:56 am

    A good thought, WB. Would like to think…The “justice” system could certainly use an overhaul.

  78. jane24
    May 17, 2015 at 11:58 am

    Please be assured, Spire, that there were very real victims of this bombing and their suffering is unimaginable. That being said, yes, some of the photographic “evidence” presented lacks integrity.

  79. jane24
    May 17, 2015 at 12:02 pm

    For all those having difficulties accessing FDL: Kevin Gosztola would like you to know: ” We take this issue
    seriously and are consistently updating the website to deal with these
    sort of issues, even if it is tedious and difficult at times.”

  80. jane24
    May 17, 2015 at 12:07 pm

    For me this defiles the principle behind trial by jury.

  81. ThingsComeUndone
    May 17, 2015 at 12:30 pm

    True vengeance is to let him live life can be worse than death life behind bars even if our prisons were humanely run is worse than death.

  82. OldGold
    May 17, 2015 at 2:32 pm

    I consider it descriptive of the quality of the posts.

    At this point this no longer just my opinion. It is fact. The second bomb was not on the Forum patio. The Richard family was in front of the Forum when the second bomb exploded. The defense was not holding exculpatory evidence to spring on the prosecution in the penalty phase. And on and on.

  83. Spire
    May 17, 2015 at 4:52 pm

    that’s all i’m saying. if you have ever been in a ER during an major accident, or know enough to be able to imagine it, you would expect to see a lot more blood; but no one has bloodstains. WTF? and the buildings are damage-free, i.e. no shrapnel damage. i’m not saying folks did not die, but there is a lot of screwy stuff here. Dave McGowan spends about 4 hours with about 100 photos shot from the same location over a period of a half hour.
    and as he says, don’t take his word for it, look for yourself. the photos spell it out, at least at this explosion site. don’t know about the other.

  84. TalkingWarrior
    May 17, 2015 at 7:26 pm

    Very good article, succinctly making two very salient points.

    Thank you, Margo, and jane24 for the assist.

    jane24, can Margo read comments but not get in to post herself?

  85. TalkingWarrior
    May 17, 2015 at 7:38 pm

    I do HATE, though, that when I follow a link from a comment below Discus’ first Load more comments tab, when I hit the Back button on my phone, I am returned to the article itself, which loads everything else (read Java-driven ads) then I must go through numerous clicking on Load more comments to return to the link I click on – makes me very hesitant to click on commenters’ links.

    Discus really should not be used on sites that require mobile users to be locked into a mobile view.

  86. dennis crain
    May 17, 2015 at 7:42 pm

    yeah you’re probably right, would that make his victims blind as well? oh wait ,he’s not alive so i guess it’s a moot point. bottom line is, you are all hot to save this sorry bastard, but you’re not one bit concerned about an 8 year old child. which leads directly to my next question for you, and that question would be; who let you out of your cage? every time some slimy pos like him winds up on death row all you sickos start screaming let them live, what about their victims? they’re dead, they have no reprieve no parole no rising from the grave, no second chance, hell, they don’t even get to live out the rest of their lives behind bars! screw tsarnaev, he is a blight on society, and in my opinion he should never see another sunrise and neither should you, because in my opinion you are no better than him.

  87. TalkingWarrior
    May 17, 2015 at 7:44 pm

    On my mobile, I have set Discus to Sort by Oldest. Comments are, but replies are sorted by Newest first.

    Not helpful, Discus.

  88. Sniper Kitty
    May 17, 2015 at 7:54 pm

    I’m curious. And I have noted that NE University (where Danny was a student) has a security research facility bankrolled by DHS. Also, NEU, along with Boston Police Academy, is the recruitment source for participants in drills run by DHS. Of course, that all could mean absolutely nothing…or….

  89. TalkingWarrior
    May 17, 2015 at 8:16 pm

    Margo, I have not been able to read your article entirely, because, while it does “look” better today, the margins on my screen are still set so wide that, for some reason, every third line of your article appears with only one or two words, and many full lines are only 4-5 words long.

    Given your pre-Twitter, educated writing style (long, even complex sentences in actual sentences-long paragraphs), I simply cannot follow it as FDL is currently presenting it on my screen. I do hope you also post it somewhere more mobile-friendly (Café Babylon, where I can switch to deskop?).

    I’ve been following you as best I can since I discovered your death penalty comments below articles about this case at FDL when you were also lamenting that you could not post a diary or front-page post at FDL with your thoughts. Then I found you commenting at another site and followed you there, hoping to some day read a full-blown article from you. You finally write one, get it posted at FDL, and I can’t read it, because of the way FDL presents it on my screen.

    Do consider re-posting your article at a more mobile-friendly site (if FDL allows that).

    In the meantime, I’m bookmarking your piece to read once FDL gets its act together (although my patience with this site wears thin).

  90. jane24
    May 17, 2015 at 8:29 pm

    Unfortunately, Margo is unable to post or read comments on FDL at this time but I am copying your comments and forwarding them to Margo via e-mail. Margo then e-mails her responses for me to post. (A little cumbersome, but hey, we’re getting this done!)

  91. TalkingWarrior
    May 17, 2015 at 9:03 pm

    Want to add another heart-breaker, especially for the hold-out on my jury?

    The judge told us he was within minutes of declaring a hung jury when he got word we had reached a verdict. It was late on the third full day of deliberations. That older woman stood her ground alone against four white men (late 30s to early 50s,the oldest the bully until one of the other white men took him on) taking turns, in one-on-one side conversations with her, trying to persuade her to vote guilty for a day and a half, and a few minutes not long enough.

  92. TalkingWarrior
    May 17, 2015 at 9:32 pm

    This trial may be the template for many, many future US trials.

  93. jane24
    May 17, 2015 at 10:06 pm

    You are already aware that I disagree with you on the quality of WB’s posts.

    There is much to suggest that the second bomb did not explode by the tree/guardrail and little, (if anything), to suggest that it did.

    I am not going to argue with you concerning the location of the Richard family.

    Many of us have engaged in speculation whilst following this case. (Yourself included.) Speculation as regards the defense’s strategy was a given. (And particularly in light of the fact that they failed to mount any “defense.”)

    There are aspects of this case, OG, about which we have disagreed for many months. I have no doubt that we will continue to disagree. For this reason, I would like to suggest, that we limit our exchanges, on this thread at least, to that which we can agree upon and the topic of Margo’s post: Opposition to the death penalty.

  94. jane24
    May 17, 2015 at 10:08 pm

    I lean towards the “or”…

  95. jane24
    May 17, 2015 at 10:13 pm

    Masoninblue: Margo has indicated to me that she would like to discuss some aspects of law with you directly. Do you have an e-mail you would be willing to post or can you suggest some means by which Margo might contact you?

  96. wiseowl
    May 17, 2015 at 11:07 pm

    in this case demonizing (an innocent) Jahar was necessary to hide state secrets and F**-ups.

  97. jane24
    May 18, 2015 at 12:36 am

    Your response here to Beverley is way out of line. Please do not post another comment on this thread unless you can moderate your tone.

    To suggest that commenters here have no care or concern for the victims and survivors of the bombing is ridiculous and completely untrue.

    You are, of course, entitled to your opinion on the death penalty. I would disagree with you, as, it seems, would most commenters here. Despite this, if you wish to debate in a reasonable manner, your comments are welcome. Abusive comments such as your recent response to Beverley are not.

  98. jane24
    May 18, 2015 at 2:21 am

    Response from Margo:

    Please let me give credit where credit is due, and thank you for the reference to Salem
    and the witch trials of 1692. It’s a powerful image. I have a saying: “Jahar Tsarnaev was convicted in Boston, 2015; but his penalty trial took place in Salem, 1692. Not even Judy Clarke can win in Salem, 1692 — and nor can democracy and human rights.”

  99. jane24
    May 18, 2015 at 2:26 am

    Response from Margo:

    Maybe I should quickly clarify that although I was writing from my own pacifist perspective in the first hours after this horrible verdict, I don’t think that most of what I have to say depends for its relevance on the reader also being a pacifist. My guess is that the great majority of governments that have abolished the death penalty for all crimes (99 countries according to one recent Amnesty International document I saw), as well as most individuals who oppose it, do not take a pacifist stance. It’s quite possible for an individual or government to be ready to use deadly force in self-defense, while rejecting the killing of subdued prisoners.

    The reason I addressed my own pacifism is because I felt the reader had a right to know where I was coming from. And I might add that the reader doesn’t need to be a pacifist to share my critique of bombing civilians. Someone could support the use of military force for self-defense — to resist an invasion, or in an armed revolution against a tyrannical government — while rejecting such terrorism, with or without an air force.

  100. jane24
    May 18, 2015 at 2:39 am

    Response from Margo:

    Thank you for calling my attention to your problems reading my article with your mobile interface. I am now checking about FDL copyright policies, and would like to repost to Cafe Babylon if these policies permit — or do anything else that might make my article more accessible.

    Also, I have some longer articles and other materials concerning death penalty issues on the web. I’d love to get in touch, maybe by e-mail, if you’d like, and share links. Also, I hope that I will soon have new articles available, with the Tsarnaev case definitely a focus.

    It’s humorous that discovering Twitter and posting to it has maybe been more of a balance to my usual style than anything radically altering it — for better or worse. 🙂

  101. jane24
    May 18, 2015 at 2:41 am

    Response from Margo:

    Thank you so much for your thoughtful posts on the jury process, the vivid descriptions of that hold-out woman, and also the ways that the process and authoritarian personalities involved in it can overcome the resistance of jurors more sensitive to the meaning of “beyond a reasonable doubt.”

    Here I find it significant — not as any comment about you or the hold-out
    woman, but about the moral pressure involved — that neither of you felt
    in a position, when the jury was polled, to say, “No, that was not my
    freely given verdict. I still have some reasonable doubt. My vote is for
    not guilty.”

    The Tsarnaev penalty phase looks like a variation on the Stanley Milgram experiments, except that this was not a test. Death qualification screened out people who were ready to say no, and left a panel either of authoritarians (evidently including the forewoman) or of people who might be inclined to comply both with the prosecutors and with these more dominant jurors. So your story gives a clue to what may have happened.

    As an aside, I might mention that Justice James Wilson in his popular law
    lectures of 1790-1791, available on Google in an edition of 1804, had a
    solution for the problem of criminal juries which might be unable to
    agree. His solution: if all 12 jurors cannot agree on guilt — then “a
    single doubt or a single dissent must produce a verdict of acquittal.”
    However, that view didn’t prevail. By 1824, in the case of United States
    v. Perez, the Supreme Court held that a jury unable to agree could be
    dismissed as an instance of could be dismissed as an instance of “manifest necessity,” and the prisoner tried again.

  102. OldGold
    May 18, 2015 at 10:18 am

    Fine, but I would note you have not attempted to restrain individuals who agree with you from straying from the primary subject of this post. In fact, you encouraged it by linking to woodybox’s post, which has nothing to do with the DP.

  103. dennis crain
    May 18, 2015 at 11:22 am

    not to worry jane 24 i have said what i came here to say and i see nothing abusive about my comment other than a couple of mild profanities, i bare no ill feelings toward beverly, i don’t know her and have no desire to do so. as for visiting or posting here in the future, not to worry, i wont. looks like you and beverly do not want to hear anything that is other than your opinion. on another note, my father always told me that opinions were like rectums, everybody has one and they all stink.of course that’s my opinion, and by the way, i’m sticking to it.

  104. jane24
    May 18, 2015 at 6:53 pm

    As my response to you above, I have no problem with you voicing your opinion, even though it is in opposition to my own. What I do have a problem with is your remark indicating that you believe a commenter here “should never see another sunrise.” You went too far and you know it.

  105. jane24
    May 18, 2015 at 7:22 pm

    Ok, OG. I have no wish to attempt to “restrain” anyone, whether their views are in line with mine or not. Certainly, my comments on this thread have done little to keep this thread on topic. I have already acknowledged this to Margo. (And apologized.)

    In regard to my posting a link to WB’s blog: It has been customary practice for over two years now, on threads which discuss issues related to the BMB, for those of us who read and comment, to post links to articles we believe may be of interest to others, even if the connection to the main article is not direct. I made no attempt to encourage or engage in conversation related to WB’s article on this thread.

    As you saw fit to point out, on a recent thread, Margo and I are not in agreement on all aspects of this case. Our most basic difference is that Margo believes that DT is most likely guilty. As you are aware, I do not. Margo, as you, finds it distasteful to question the accounts of victims. I believe that to seek the truth, whatever and whomsoever this leads one to question, is the right thing to do. To ask such questions in no way diminishes the tragedy which has befallen these individuals or, indeed, their suffering. Despite our differences Margo and I are able to work together on that upon which we do agree. Opposition to the death penalty is one of those issues.

    I have already answered your initial questions in my first response to you, excepting the location of the Richard family. As you persist, I will answer. No, I am not convinced that the Richard family were located in the exact spot claimed in the “official narrative.”

    I have already stated that during this trial, some of the photographic “evidence” presented, in my opinion, was lacking in integrity. (Those in the case of Krystle Campbell are but one example.) Why else would photographs which it was claimed were taken within a very few minutes, and in some cases, seconds of each other illustrate two very different scenarios?

    Anything else?

  106. OldGold
    May 18, 2015 at 8:51 pm

    Yes. There is a great deal more, but I have other litigation matters to attend to this evening.

    But for this site’s technical problems, perhaps some of these matters could have been hashed out in real time.

  107. jane24
    May 18, 2015 at 9:36 pm

    Then I look forward, OG, to hashing these matters out, either tomorrow, on this thread, if it is still open for comments, or on another thread in the not too distant future.

  108. Steve Dwight
    May 19, 2015 at 6:41 am

    “great majority of governments that have…” True.It is a shame that there is not a global equivalent of the European Court of Human Rights, which has, with the European Convention on Human Rights, pressured countries, even Russia, into dropping capital punishment.

    The USA is often grouped with western Europe, if only…….

  109. cv1975
    May 19, 2015 at 9:44 am

    Thank you Margo for this post (and to Jane24 for being the vessel)! Enlightening! Thought provoking! I wish to do what I can go make the death penalty permanently a part of our past!

  110. knowlyn
    May 19, 2015 at 10:50 am

    I know in some ways the answer to this is clear, but I’m curious to hear what people see as the best ways to work toward making the death penalty part of the past?

  111. jane24
    May 19, 2015 at 1:13 pm

    Also: Discussion on the death penalty in this podcast:

  112. cv1975
    May 19, 2015 at 7:35 pm

    I, too, wish to have guidance to achieve our goal. The Death Penalty Information website, has information about current events and happenings. Recently, politicians in two southern states expressed an interest in moving away from it. I live in TN where Governor Haslam believes the electric chair is a suitable alternative to lethal injection . . .. Just awful and unexceptable. For DT, we need change at the Federal level, though getting any of the 32 DP states to change is at good start. Open for suggestions!

  113. cv1975
    May 19, 2015 at 7:38 pm

    You’re doing a great job! Thank you!

  114. pbszebra
    May 19, 2015 at 8:54 pm

    There are certainly many websites that are working on this, but one great place to start is to following Sister Helen Prejean on Twitter, Facebook and her website. Her tweets are really informative and not pushy. She is really dedicated to abolishing the death penalty. 🙂

  115. dennis crain
    May 19, 2015 at 9:31 pm

    in retrospect i am sure you are correct that i did go too far with that comment. for that i apologize. however, i am pro death penalty, and i am just as passionate in my beliefs as you or anybody else in their beliefs. i could be wrong for those beliefs, some times i am wrong, but, right or wrong i stand by them. it is far more important for me to stand up and fight for the victims of criminals like tsarnev, who had no one protect them from a monster such as him. it’s disheartening for me to hear his name every time i turn on the news or radio, or , even in the newspaper. and very rarely hear the victims name, it’s as if poor little tsarnev is the victim, you may buy that story, but i don’t and never will.go sell crazy somewhere else, i’m not buying it! as for me, i think if i was in his shoes i would rather have the death penalty over life in prison without the possibility of parole. to me that would be worse than death, but , on the upside of that, if they did suddenly decide to change their mind and let him live out his sorry life behind bars that would be icing on the cake, that way he would have the rest of his life to think about what he did.

  116. jane24
    May 19, 2015 at 10:02 pm

    Thank you for your apology. (Though, of course, due, and I’m sure intended, for Beverley, rather than I.) Whilst I do not share your beliefs in regard to the death penalty, I appreciate the fact that you are prepared to stand up for your beliefs. One of my issues with the death penalty is that mistakes are made. This is “human” and cannot be avoided, but what greater tragedy than for someone to be executed for a crime they did not commit?

    If you believe Tsarnaev to be undoubtedly guilty, in light of the horror suffered by the victims and the survivors, I understand your anger. Whomsoever was responsible for the bombing should be punished and punished severely. I would not argue with you on that point. That being said, some of us are not convinced of Tsarnaev’s guilt and that is why this case is so much discussed.

    Obviously I do not know where you are located, but I live in Massachusetts, and can assure you that the victims and survivors are mentioned often here, as they should be. The courage of so many is beyond belief. Do not think these people have been forgotten. They have not, nor should they be.