The Boston bombing case - spring training is over, and it'll be Opening Day soon

Accused Boston bomber Dzhokhar Tsarnaev was, not surprisingly, convicted yesterday of all 30 federal counts that he faced. As he faced a possible death sentence, the case was bifurcated into a guilt phase and a penalty phase. Various commentators noted that defense lawyer Judy Clarke essentially conceded guilt from the beginning of the guilt phase, an indication that the defense goal has been to avoid the death penalty. (Clarke took similar approaches with previous clients such as the Unabomber and Jared Lee Loughner, among others.)

This means that the legal fight is beginning in earnest with the penalty phase, where Clarke can be expected to put up a fierce defense. It's clear from the defense posture that the theory of mitigation will be that Tsarnaev was heavily influenced, if not coerced, by his older brother Tamerlin (who was killed during capture efforts).

Clarke certainly has a formidable reputation with an impressive list of former clients who escaped the death penalty. But of those successes, only Susan Smith and Zacarias Moussaoui actually faced juries in the penalty phase. The others (the Unabomber, Aryan Nations member Brandon Furrow, Olympic bomber Eric Rudolph, and Loughner) all reached plea bargains with the prosecutors. And Moussaoui reportedly avoided a jury vote of death by a single vote.

Predicting the outcome of the penalty phase would be a foolhardy task, especially ahead of the presentation of any of the aggravating or mitigating evidence. The jury has, however, already heard some extremely aggravating evidence in the case in chief:

The government called 92 witnesses over 15 days, painting a hellish scene of torn-off limbs, blood-spattered pavement, ghastly screams and the smell of sulfur and burned hair. Survivors gave heartbreaking testimony about losing legs in the blasts or watching people die. The father of 8-year-old Martin Richard described making the agonizing decision to leave his mortally wounded son so he could get help for their 6-year-old daughter, whose leg had been blown off.

This wasn't an unforeseen result of the defendant's actions. Given that the jury has already been death qualified, one has to wonder, if the death penalty doesn't apply in a case like this, when would it?

As it turns out, we have something of a comparable case: the 1995 Oklahoma City bombing of the Murrah Federal Building. (Obligatory disclosure: I clerked for Judge Holloway in Oklahoma City from 1996-97, so I was in the courthouse for much of the pre-trial hearings in the case, but obviously I wasn't present at the time of the bombing itself.)

Obviously, the death toll in the Oklahoma City bombing was much, much higher, and so too was the property damage. But co-defendants Timothy McVeigh and Terry Nichols both went to trial, were convicted, and faced the death penalty. McVeigh was sentenced to death, while Nichols was not. What was different between the two of them?

Observers at the time noted that:

[P]roving his guilt would end up a greater challenge for the federal government than it had been in the McVeigh case. There was no evidence that Nichols had rented the Ryder truck used to carry the bomb to Oklahoma City, and there was no one who could positively identify him as the purchaser of the two tons of ammonium nitrate, the major component in the bomb.

Most problematic for the government was the compelling fact that Nichols was at home in Kansas when McVeigh detonated the truck in front of the Murrah building at the promising start of a sunny workday.

One might be able to see Tamerlin Tsarnaev as McVeigh and Dzhokhar Tsarnaev as Nichols, in terms of relative guilt, but most of the other comparisons do not favor Tsarnaev. Perhaps most importantly, Nichols may have benefited from being prosecuted after McVeigh had already been convicted and sentenced to death. While Tamerlin Tsarnaev is dead, his death did not result from a completed trial, and so Dzhokhar Tsarnaev is the only one of the two to face a jury; this is the one opportunity for a jury to, as they say, send a message.

(I should note that I'm not offering these to persuade anyone that Tsarnaev should receive the death penalty, but rather, why I think he probably will. For my views on the kinds of cases for which a death sentence would be appropriate in the interest of protecting other inmates, see an op-ed I wrote, or a short law review article.)

Additionally, whereas Nichols aided McVeigh in assembling the truck bomb, he apparently stopped helping McVeigh and thus had gone nowhere near the federal building. Dzhokhar Tsarnaev, on the other hand, appears to have been every bit as much of a perpetrator of the marathon bombing as his older brother was.

I wouldn't bet on the outcome of the penalty phase, but I do think Judy Clarke is facing an uphill battle in trying to persuade the jury to spare Dzhokhar Tsarnaev.

For further reading on comparisons between the Boston and Oklahoma City bombing cases, see this interview with McVeigh's lawyer.