The best chance for 19-year-old Dzhokhar Tsarnaev to avoid execution for the deadly Boston Marathon bombing may be to cooperate fully with investigators, or convince a jury he was “brainwashed” by his older brother.
U.S. authorities said Dzhokhar and Tamerlan Tsarnaev detonated two homemade bombs near the race’s finish line April 15, killing three people and injuring more than 200. Tamerlan Tsarnaev died after a shootout with police. Dzhokhar, captured hiding in a boat in a Watertown backyard, was charged with two capital counts, including use of a weapon of mass destruction.
His lawyers will probably blame his involvement on the “overpowering influence” of his 26-year-old brother, said Harvey Silverglate, a civil liberties and defense attorney. Tamerlan Tsarnaev “appears to have been an embittered and dangerous character, and it is well known that older siblings can often have tremendous power over younger siblings.”
The Tsarnaevs, immigrants of Chechen descent, had lived in the U.S. for more than a decade. Investigators are working with Russian authorities as they focus on a six-month trip Tamerlan took last year to Chechnya and neighboring Dagestan, both Russian regions roiled by Islamist separatist movements.
While federal investigators seeks to piece together the genesis of the attack and whether others were involved, U.S. Attorney Carmen Ortiz has begun the prosecution of Tsarnaev, who is recovering from wounds suffered during the four-day hunt for him and his brother.
Tsarnaev, who had a gunshot wound to the neck, communicated to investigators by nods and in writing that he and his brother alone were responsible for the bombings and were motivated by extremist Islam, according to a U.S. official briefed on the initial interrogation. He also indicated they weren’t aligned with any known terrorist or military groups.
During his initial appearance before a federal magistrate in his hospital room April 22, Tsarnaev was represented by Assistant Federal Public Defender William Fick, a Yale Law School graduate, seven-year veteran of the public defender’s office and fluent Russian speaker. Tsarnaev told the judge that he can’t afford a lawyer and agreed to voluntary detention. A probable-cause hearing has been set for May 30 in Boston federal court.
His defense, including his effort to avoid execution if convicted, is led by Federal Public Defender Miriam Conrad. She represented Rezwan Ferdaus, a 27-year-old man who is serving a 17-year sentence for terrorism conspiracy for a plot to attack the U.S. Capitol with remote-controlled airplanes.
Conrad, who holds a degree from Harvard Law School, joined the federal defender’s office in 1992 after working as a court- appointed lawyer for Massachusetts. She has already asked the court to let her bring in two more lawyers who have defended clients facing the death penalty, “given the magnitude of this case.”
In court papers, Conrad cited the prosecution of Jared Loughner, the gunman who killed six people and injured 13 in a Tucson, Arizona, strip mall, including former Democratic Representative Gabrielle Giffords. He was allowed to hire two attorneys with experience in death penalty matters to assist the public defender. Loughner pleaded guilty to the 2011 rampage and is serving life in prison.
In a two-tiered capital trial, Conrad will need to persuade a jury to spare her client’s life if he’s found guilty to avoid the fate of the handful of federal defendants who have gone on to execution, including Timothy McVeigh.
McVeigh was put to death in 2001 in the federal death chamber in Terre Haute, Indiana, for the 1995 Oklahoma City bombing. He killed 168 people and injured more than 800. Convicted killer Ramon Garza was executed in Terre Haute eight days later.
“If anyone can provide this young man with a tenacious, effective defense, it’s Miriam Conrad,” said Tamar Birckhead, who has worked with her and in 2002 defended Richard Reid, the so-called shoe-bomber who tried to blow a hole in the side of a passenger plane with explosives in his shoe. “She’s tough and she’s got a brilliant legal mind.”
Conrad declined to comment on the capital charges. Christina Sterling, a spokeswoman for Ortiz, didn’t return an e- mail seeking comment.
Birckhead, now a law professor at the University of North Carolina at Chapel Hill, said she expects the defense to find experts to focus on Tsarnaev’s youth, which if not persuasive to a jury to gain acquittal, could be viewed as a mitigating factor in the penalty phase of a capital trial.
“Not long ago he was a minor,” she said in a telephone interview. “His brain is probably not that different than a minor’s, and psychologically in terms of impulsivity, peer pressure and the inability to consider long-term consequences, all of that could absolutely be relevant.”
The two brothers used remote controls from toy cars to set off the explosives inside pressure cookers, according to federal law-enforcement officials and members of Congress briefed on the matter.
A claim of insanity or a defense of so-called diminished mental capacity won’t help Tsarnaev, other lawyers said.
“Such careful planning went into this -- the placement of the bombs, the timing, the premeditation,” said Richard Herman, a New York-based defense lawyer. “It would just be absurd to take on a position of insanity, and insanity defenses only win about 1 percent of the time anyway.”
While the defense may seek to move the trial to another city to secure a more favorable jury, it would be “foolish” to think people outside Boston would treat Tsarnaev differently, said Gerald Shargel, a criminal defense lawyer who has practiced for 43 years. In 1999, Shargel defended an Indian immigrant, Gurmeet Dhinsa Singh against federal capital murder charges for ordering the execution of two men. After an hour, the jury voted to reject the death penalty for Singh.
The marathon attacks got too much national attention for venue to make much of a difference, Shargel said. McVeigh’s trial was moved to Denver federal court and he still wound up convicted of 11 crimes, including conspiracy and the use of a weapon of mass destruction.
“Given what’s happened over the last week, whether the trial is in Los Angeles, Seattle or Kansas City, the American public is outraged about what occurred and understandably biased against the defendant,” Shargel said. “The defense attorney’s job will be to pick a jury that’s open to sparing his life -- it’s a Herculean task.”
The court could bring in thousands of potential jurors for Tsarnaev’s case to vet those who are morally opposed to the death penalty or express bias, defense lawyers said. In the retrial for the sentencing phase of Ronell Wilson, who was convicted of executing two New York City police detectives, a federal judge in Brooklyn on April 22 summoned 2,000 prospective jurors to court.
While the government isn’t required to seek a capital sentence, the Tsarnaev prosecution is “absolutely” a death penalty case, said Herman, and the government has “an overwhelming mountain of evidence” to support a conviction.
David Hoose, a defense lawyer who has argued against capital punishment, said the alleged “manipulation” of Tsarnaev will be the most important part of his defense against the death penalty.
“That gives you the talking point for mitigation,” Hoose said in a telephone interview. “Right on its surface, it appears this is a younger kid who is easily influenced.”
The tactic helped Lee Boyd Malvo, the younger of the two snipers who terrorized the Washington area for three weeks in 2002, killing 10 people with long-range rifles, said Tung Yin, a professor who teaches about terrorism and national security at Lewis & Clark Law School in Portland, Oregon.
Malvo escaped death when his lawyers argued the then-17- year-old had been influenced by the elder killer, John Allen Muhammad, who was sentenced to death in 2003. Malvo got six consecutive life sentences without the possibility of parole.
Malvo “claimed Muhammad led him down this horrible path,” Yin said. Tsarnaev “could try something like that.”
The defense may also argue that Tsarnaev’s statements after his capture can’t be used in court because he wasn’t apprised of his right to remain silent and have a lawyer. Even without them, defense lawyers said, the government’s forensic and surveillance evidence may be insurmountable.
When Tsarnaev was taken into custody, the Obama administration said it planned to question him without telling him he had those rights. The administration cited a public- safety exception that allows such questioning in part to discover any looming threats to the public. Such an exception has been used in other federal terrorism cases.
Though Tsarnaev communicated to investigators that he and his older brother were responsible for the attack, he indicated they didn’t have ties to a terrorist or military group, the U.S. official said. If Tsarnaev and his lawyers wish to avoid a capital case or obtain a plea deal by cooperating, they will have to have something to offer.
By telling authorities about any accomplices or overseas groups that may have assisted in the attack, said Herman, Tsarnaev may be able to obtain a deal that spares his life. The information would have to be credible and possibly prevent a future attack or lead to the prosecution of others, he said.
“The rats get rewarded if they have good, credible information,” he said, using a slang term for informants. “If he’s a low-level guy and they just went on a spree on their own, he’s of no use to the government.”
Not included in the federal complaint against Tsarnaev were charges tied to the shooting death of Sean Collier, a Massachusetts Institute of Technology police officer, and the wounding of a transit patrolman before his capture. Such crimes are typically prosecuted by state prosecutors, and may result in charges that parallel the federal case.
The Middlesex County District Attorney’s Office said it is investigating the shootings. The state doesn’t have a death penalty, and any local prosecution would probably be delayed while the federal case proceeded.
Boston defense attorney Jonathan Salsberg was assigned by the Committee for Public Counsel Services to represent Tsarnaev in any state case filed against him. Salsberg declined to comment on his appointment.
Two defendants have been prosecuted by the U.S. government in Massachusetts under the 1994 Federal Death Penalty Act. Gary Lee Sampson was sentenced to die after pleading guilty in 2003 to two counts of carjacking resulting in death. His sentence was overturned after an appeals court ruled that a juror had withheld information about her ability to be impartial.
Kristen Gilbert, a former nurse at a Veterans Affairs Medical Center in Massachusetts who was tried under the act for killing four patients, was given a life sentence.
Any federal cases that include potential capital crimes are reviewed by U.S. prosecutors, and eventually by U.S. Attorney General Eric Holder. Even defense lawyers are consulted before a decision is made, said Morris Fodeman, a former federal prosecutor who obtained a death sentence in 2007 for Ronell Wilson, a New York man convicted of executing two police detective. It was the first federal death sentence in New York in 54 years.
Fodeman said defense lawyers, before even reaching a jury, may try using the argument that Tsarnaev was manipulated by his brother to persuade prosecutors to seek only a life sentence.
“I don’t think it’s a foregone conclusion that the government will seek the death penalty in this case,” said Mitchell Dinnerstein, a criminal defense lawyer in New York who has defended clients facing the death penalty. Dinnerstein said Tsarnaev’s age and the possible influence of his brother are all factors that should be considered.
If defense lawyers are unsuccessful, and if Tsarnaev is eventually convicted, there is yet another proceeding awaiting him -- the so-called penalty phase. Jurors are asked to decide whether a convicted defendant deserves life in prison or death by weighing mitigating and aggravating factors presented by the defense and the government.
Even with a strong “brainwashing” claim, a jury may be influenced by the brutality of the attack, said Yin, the Oregon law professor. Tsarnaev is accused of killing three people: Martin Richard, 8, Lu Lingzi, 23, and Krystle Campbell, 29. More than a dozen of the 200 injured lost limbs in the attack.
Life sentences are more frequently given out in cases over foiled attacks, such as Faisal Shahzad’s plot to detonate a car bomb in New York’s Times Square in 2010, and Adis Medunjanin’s plan to bomb the city’s subway. No one was harmed in either instance.
Even in the most heinous of crimes, a death sentence is sometimes out of reach. Zacarias Moussaoui, the so-called 20th hijacker who pleaded guilty to conspiracy charges in connection with the Sept. 11, 2001, attacks, was sentenced to life in prison in 2006.
Prosecutors failed to secure a unanimous vote for death after some jurors at his trial concluded Moussaoui didn’t have a central role in the attack.
In 2001, Khalfan Khamis Mohamed and Mohamed Rashed Daoud al-’Owhali both avoided the death penalty for their roles in the 1998 bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans. The jury failed to reach a unanimous decision on a sentence and both men are serving life sentences.
Al-’Owhali, who was 25 at the time of the attack, was accused of driving the bomb-laden truck to the embassy in Kenya and later posed with his hands clasped over his head in what the U.S. said was a gesture of victory.
Nine of the 12 Manhattan federal jurors who heard the case found that executing him “may not necessarily alleviate the victims’ or victims’ family suffering.”
Jurors split on a death sentence for Mohamed, who was accused of building and transporting the bomb which detonated outside the embassy in Tanzania, killing 11 people. Seven of the 12 jurors concluded “if Khalfan Mohamed is executed, he will be seen as a martyr and his death may be exploited by others to justify future terrorist acts.”
As a death sentence recommendation must be unanimous, he was sentenced to life in prison.
Jeremy Schneider, a lawyer who represents radical Islamic cleric Abu Hamza on terrorism charges in Manhattan federal court agreed that even if the Boston Marathon case reaches a penalty phase, Tsarnaev still has a chance of escaping with his life.
“Even for a potential penalty phase, there may be friends who knew him who will say that this is a smart kid who was well liked and did well in the U.S., at least when his older brother wasn’t around,” Schneider said.
“There are many arguments to be made here such as, was he coerced? What did his brother do to him? Is he under his brother’s thrall, like a Patty Hearst or the Stockholm Syndrome? All these could also work as part of a defense or as mitigating factors.” He could argue he was “brainwashed” by his brother, Schneider said.
Defense lawyers have so far failed to block federal death penalty sentences by arguing the state in which the crime took place bans capital punishment, said Hoose, the defense lawyer. He said attorneys continue raising that defense because the U.S. Supreme Court hasn’t ruled against it.
Hoose is arguing against use of the penalty in a federal case filed in Rhode Island, which also has no death penalty.
Jason Pleau, 35, faces possible execution on federal charges he killed a gas station manager in a robbery. As with Pleau’s case, Hoose said Tsarnaev should be prosecuted under the laws approved by the citizens of his state. A federal judge in Rhode Island rejected that argument in Pleau’s case on April 17.
“The people of Massachusetts have long ago decided they didn’t want to have a death penalty,” he said.
The case is U.S. v. Tsarnaev, 13-mj-02106, U.S. District court, District of Massachusetts (Boston).
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