What Tsarnaev’s attorneys might argue at appeal
The trial is over, but the work has just begun.
A jury sentenced Dzhokhar Tsarnaev to death — starting a long appeals process that could stretch a decade or more.
“If you compare the death penalty to an airline trip, returning the verdict is simply the plane taking off,’’ said Robert Dunham, executive director of the Death Penalty Information Center. “With the appeals process, we’re not sure exactly where it’s going to go and whether it’s going to land with a death sentence and the conviction upheld, or with a reversal.’’
There have been 80 federal death sentences since 1988. Just three of those convicts were executed. Tsarnaev’s defense team will try to keep him from becoming the fourth.
“The job of an appellate lawyer is like an archaeologist,’’ said Martin Weinberg, a Boston-based attorney who handles federal appeals cases. “You need to dig through the transcripts and find decisions … that went beyond the discretion of the trial judge.’’
They will have lots to argue about.
The location of the trial
Tsarnaev’s defense team asked for the trial to be moved outside of Boston on five different occasions. Trial Judge George O’Toole refused, as did the United States Court of Appeals for the First Circuit.
“That’s the most compelling issue that we all know they will raise,’’ Weinberg said.
“Even though Massachusetts has a lot of citizens that don’t like the death penalty, (the question is) whether the passion that came with supporting the victims of the Boston Marathon simply eclipsed the community’s ability to give (Tsarnaev) a fair trial.’’
One appellate judge agreed with the defense. In a scathing dissent issued a week before opening arguments, appeals Judge Juan R. Torrulla wrote that keeping the trial in Boston was “only furthering the perception that this whole trial has a preordained outcome and that our ‘guarantee of due process’ is nothing but an empty promise.’’
Torrulla could be part of the panel that weighs future appeals.
Sealed evidence
Defendants are supposed to have access to all the evidence against them. But it doesn’t exactly work that way in terrorism cases.
“In terrorism prosecutions, the Department of Justice withholds information from the defense on the grounds that it involves national security,’’ said J.W. Carney Jr., who represented Tarek Mehanna, the Sudbury man convicted of aiding terrorists. Carney said they were denied documents and other evidence in that case.
“We were boxing with a ghost,’’ Carney said.
Tsarnaev’s attorneys likely faced a similar battle.
“It’s certain, in my opinion, that the government refused to provide documents, names of witnesses interviewed or investigated, and other information to the defense,’’ Carney said.
The appellate team will argue they should have received that information and that, without it, they couldn’t present a full defense.
The jurors
Less than 20 percent of Massachusetts residents polled during the penalty phase of the trial wanted to see Tsarnaev executed.
The 12 jurors making the decision, however, had to promise they were open to signing their name to execute him.
“You have so many people excluded for possible jury service that there are questions about the ability of the remaining jurors to reflect the conscience of the community,’’ Dunham said.
The defense could also challenge individual jurors, whether they were improperly excluded or included.
The victim testimony
Tsarnaev was facing the death penalty on four main acts — killing Martin Richard, Lingzi Lu, Krystle Campbell and Sean Collier.
“At the penalty phase, the only victim impact that would have been legally relevant would be the impact on the families of those victims,’’ Dunham said.
But many other survivors testified in addition to those families and friends.
“As horrific as the impact may have been on the people maimed and the people who were injured, the attacks on them are subject to statutory periods of imprisonment and those attacks are not the subject of the penalty phase,’’ he said.
The Dzhokhar Tsarnaev trial in courtroom sketches
[bdc-gallery id=”147383″]
To comment, please create a screen name in your profile
To comment, please verify your email address
Conversation
This discussion has ended. Please join elsewhere on Boston.com