This week, the Massachusetts trial of Boston Marathon Bomber Dzhokhar Tsarnaev continues in much the same way that a death penalty trial would in Florida or Texas.
The Two Parts of a Death Penalty Trial
In the Boston Marathon Bomber’s case, just like a Florida death penalty trial or a Texas case seeking the execution of the defendant:
- The jury has decided that the defendant is guilty.
- The jury verdict includes a crime for which state law provides the death penalty.
- The prosecution has sought capital punishment in the case – something that was noticed and known to both the state’s attorneys and the criminal defense team from very early on in the process.
- Now, the Boston Marathon Bomber’s courtroom trial proceeds into the part of the case where Terence Lenamon takes the lead for his defendants: that is, the penalty phase of the capital case.
- The prosecution will be arguing for death and citing "aggravating factors" that the jury should consider in its deliberations.
- The defense will be urging "mitigating factors" that should be balanced against the death penalty in the jury’s decision-making.
Federal Law Controls Death Penalty Decision by Jury
This case, however, is controlled by federal law. Specifically, 18 USC Section 3592, the federal statute for "Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified."
Here is Terence Lenamon’s complete list of federal aggravating factors and the defense’s mitigating factors if you want to compare them to what the Boston trial is presenting.
The prosecutors only need to prove ONE aggravating factor to the jury in order to support their demand for the death penalty as a sentence. Given the death of a small boy at the scene, reportedly near the site where the bomb was placed and within view of the defendant at the time that the bomb was left there, there are facts which may be sufficient on this one circumstance to meet this legal burden under the federal statute.
The defense, looking at mitigating factors, may well point to the young age of the defendant and an argument that he was unduly influenced by his older brother – the other bomber who died during the arrest. Some may expect to see evidence presented that survivors of the blast are opposed to the death penalty (but the state may argue against its admission).
Other psychological evidence may be presented, and the defense only has to meet a "preponderance of the evidence" standard (something akin to 51%) to prove the mitigation arguments. That’s a lower burden than the prosecutor must meet.
Will the jury sentence this man to death? Would you?