This column has been updated.
A Massachusetts jury spent Tuesday deliberating over whether accused Boston Marathon bomber Dzhokhar Tsarnaev is guilty beyond a reasonable doubt. Wednesday, it was announced that the jury found him guilty of three counts of murder along with the 27 other, horrible crimes he and his now-deceased brother committed back in April 2013. His outstanding lawyer, Judy Clarke, conceded to her client’s guilt.
Only one real question remains in this mesmerizing case: Will the same jury that finds him guilty agree with the prosecution that Tsarnaev should be put to death?
In a wonderful story about her in Vanity Fair, author Mark Bowden describes Clarke as follows: “Among those who want capital punishment abolished in this country, Judy Clarke is the most effective champion in history.” In Boston, she has her work cut out for her.
From the trial’s outset, the defense strategy has been to admit to the crimes and lay the foundation for the penalty phase of the trial: Humanize Tsarnaev, if that is possible; persuade the jury to view Tsarnaev’s crimes through the eyes of people like Boston’s Cardinal O’Malley, who, even before the trial began, spoke out eloquently against imposing the death penalty.
Clarke’s success in defending against the imposition of death is already well known. Among her clients are notorious killers of innocent people, including Timothy McVeigh, Ted Kaczynski and Jared Lee Loughner. Still, a lawyer from another time comes to mind, and that is the legendary Clarence Darrow.
During the time of Darrow’s career in the early part of the 20th century, death was imposed more regularly than any penalty that exists today. Like Clarke, Darrow was a passionate opponent of the death sentence and he defended death sentence cases.
Take, for example, the case of Leopold and Loeb, two young clients of Darrow’s who hailed from wealthy backgrounds and murdered a younger boy in cold blood. Darrow’s strategy compares to Clarke’s – his two clients pleaded guilty and his courtroom defense focused solely on the death penalty. Similarly, Tsarnaev effectively pleaded guilty by his lawyer’s admission that he committed the crimes. The defense had to absorb the gory details of the murderous conduct while laying the foundation for a defense against the death penalty. Clarke aimed to show that Tsarnaev’s now-deceased older brother was the dominant figure in the murders and mayhem the two perpetrated.
Unlike Clarke, Darrow had the advantage of trying the penalty phase of the case before a judge, and no jury. Both of his clients received life sentences. Loeb was murdered in prison. Leopold was released after serving 33 years. If Tsarnaev receives consecutive life sentences, plus time for each of the bombing’s non-death cases, he will never be released.
Certainly, the passions of the community will weigh more heavily with the jury than a judge who should be – and apparently was in Darrow’s case – able to focus on the real issue: Is life in prison sufficient punishment? Clarke will surely seek to introduce further evidence of the unequal relationship between the brothers, trying to prove that Tsarnaev’s will was dominated by his older brother. But Clarke will be hampered by the words Tsarnaev wrote while hiding in the boat, and all of the terrible things he did while running from the law.
One final and critical observation: In order to impose the death penalty, the jury will have to be unanimous – a simple feat for the prosecution in the “did he do it” phase of the trial. But getting all 12 jurors to agree on sentencing Tsarnaev to death will be a much tougher hurdle for the prosecution.
Charles Stillman is a founding partner at Stillman & Friedman in New York City and the co-managing partner of the New York office of Ballard Spahr, which merged with Stillman & Friedman in 2014. His clients have included a former U.S. secretary of defense, the mayor of New York City, the chief judge of the State of New York, the Reverend Sun Myung Moon, and large corporations and their officers and directors.