DEATH SENTENCE IN MARATHON BOMBING TRIAL
The death sentence the jury handed down in the Marathon bombing case was not what would have been expected if the broader community had been asked what the result should be. This state has long rejected the death penalty and polls have consistently shown that more people here preferred a life sentence to a death sentence, with support for a death sentence declining in each poll – even after the prosecution had presented evidence of the horrors that occurred on the day the bombs went off. But the jury was not made up of a broad cross-section of the community. Rather, because it was “death-qualified” only those people who stated a willingness to impose a death sentence could sit, and thus we have a result that does not reflect community sentiment.
No doubt the jury was influenced by the callous killing of four entirely innocent people – Krystle Campbell, Lingzi Lu, Martin Richard, and Sean Collier. In her statement following the verdict, U.S. Attorney General Loretta Lynch seemed to suggest that the Justice Department sought the death penalty on behalf of the victims. She said, “We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries from this cowardly attack, but the ultimate penalty is a fitting punishment for this horrific crime and we hope that the completion of this prosecution will bring some measure of closure to the victims and their families.” What she did not say was that the families of the victims of the crime were divided on what the sentence should be. In particular, she did not note that the family of Martin Richard, the eight year old who was killed, had asked that a life sentence be imposed, in part because a death sentence and the lengthy appeals that follow would not bring closure. The jury was not told of the families’ opinions on the sentence, and thus they did not know that Martin Richard’s family opposed a death sentence. They did hear the prosecution say that they should consider the death of this young boy as a basis for imposing a death sentence. Given that the horror associated with the killing of a child – a killing that influenced many to support a death sentence in this instance, including Governor Baker – it is understandable that this could have influenced the jury to vote for a death sentence. But it is hard to see how this verdict could have come about if the jury had known what the Richard family actually thought.
Now that the verdict is death, what the Richard family feared will come to pass. There will be lengthy appeals and the Dzhokhar Tsarnaev will be in the news over and over. Not only will the appeals go on for some time, but the way the case was handled before the trial even started has given the defense a viable argument for a new trial. Despite repeated requests by the defense, the trial was not moved away from the community where the bombing took place. The unlikelihood that a fair trial could be obtained in the very community that was bombed had led to the Oklahoma City bombing trial to be moved to Denver. That this was not done so here opens the way for an appeal on this issue. If it succeeds, the question must be asked why did the Justice Department insist on trying the case here, particularly when it claims that it wanted closure for the victims’ families?
However, one of the many difficulties with the federal death penalty is that the Justice Department is not required to explain its decision to seek a death sentence. Given the public statements it has made, it would seem that it was influenced by its own views as to what would aid the victims’ families and its own views as to the appropriateness of the punishment. But neither of those things are a basis for the federal government to assert jurisdiction in a murder case. The one reason the federal government became involved here is the terrorist motive for the killings. But at no point has the Justice Department explained how seeking to execute Dzhokhar Tsarnaev will advance any efforts to fight terrorism. As MCADP has pointed out previously, the irony is that the Justice Department’s effort to depict the defendant as an ideologically committed jihadist who set out to callously kill the innocent, while it may have helped persuade jurors to vote for death, will do nothing to deter future terrorist attacks because such a portrait fits neatly with the way terrorists would wish to be seen – as self-sacrificing warriors for radical Islam taking the fight to the western enemy.
The Justice Department did not even explain itself to the jury on this fundamental question. And what the jury was being asked to do is not what juries are typically asked to do – find facts that determine whether the defendant committed a crime, but instead to make a values-based policy call about whether a defendant should be put to death. The jury should have had an opportunity to hear the full range of arguments about whether a death sentence was the right policy choice in this instance. It not only did not hear an argument explaining what good a death sentence would do in the fight against terrorism, also missing were arguments about whether the death penalty was appropriate at all. Contrast this with Clarence Darrow’s twelve hour summation in the Leopold and Loeb case, in which he successfully urged the judge to spare the lives of two University of Chicago students who had killed 14 year old Bobby Franks just to see if they could get away with it, famous arguing that the death penalty was inhumane and did not allow for the possibility that the two young men could transform themselves into better people. Loeb was denied this opportunity because he was murdered in prison, but Leopold eventually made such a transformation. More fundamentally, what Darrow did was transform the thinking in America about the wisdom of the death penalty. We at MCADP will continue that effort.