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Life Or Death?: Tsarnaev's Fate Now Rests With Jury06:02

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Jurors are now considering the sentence for convicted Boston Marathon bomber Dzhokhar Tsarnaev, and they have two choices: life in prison without parole, or the death penalty.

Deliberations began Wednesday afternoon, after both sides presented closing arguments.

"The defendant knew what kind of hell would be unleashed and he intended to kill people," prosecutor Steve Mellin told the jurors in closing. It was a replay of what the prosecution had said at the beginning of the first phase of this trial, which ended with Tsarnaev convicted on all 30 terrorism counts — 17 punishable by death.

Though the words were strong and the images were vivid, both Mellin and the proceedings were subdued rather than dramatic, as they were in the earlier stage of the trial, when jurors and the audience gasped at the horror.

Presenting photographs of the victims in the jurors' monitors, Mellin paged through them as if going through a family album, until the terrible intrusion of other photos and images.

"Three bullet holes in his head and blood pooling in his seat," he said of murdered MIT police Officer Sean Collier, or "Martin Richard's body covered by a table cloth on Boylston Street," and Krystle Campbell, severely burned with "smoke coming out of her mouth," and a friend trying to hold Lingzi Lu's intestines inside her torn body.

At one point Mellin's breath caught. At another he stared at jurors and held silent for 20 seconds, then told them Tsarnaev had waited for 12 times longer while standing behind the Richard family on Boylston Street, knowing the bomb he had placed between him and them was going to explode after he walked away.

"Killing the innocent was the whole point," Mellin said. "It's the way you terrorize an entire population."

The first time defense attorney Judy Clarke spoke to jurors was back in March. When speaking of Tsarnaev, she dramatically said, "It was him."

Now, she was asking those same jurors to spare his life, after the prosecutor urged them to give him the death sentence "he deserves."

She too was subdued, but spoke eye to eye with the jurors, without a written script. She asked not for sympathy, not for them to excuse him, she said, but for understanding.

It too could have been a replay of what she's said while defending others in a career dedicated to abolishing the death penalty. Her fellow crusader, Sister Helen Prejean, appeared as a character witness for Tsarnaev.

In closing, Clarke — whose conservative dress and asceticism resemble the nun's — urged jurors to a higher calling.

Referring to her client and the philosophy of "an eye for an eye," Clarke said, "Even if you believe that's who he was, that's who he is, that's not who we are."

Giving him life in prison, she said, "is a sentence that reflects justice and mercy. Mercy is never earned. It is bestowed. I ask you to make a decision of strength that demonstrates the resilience of this community. We ask you to choose life."

Government Rebuttal And Objections

In the government rebuttal, prosecutor William Weinreb launched a slashing, point-by-point attack of the defense case, ridiculing the argument that older brother Tamerlan was to blame for Dzhokhar Tsarnaev's involvement.

"Where's the evidence of brain-washing or mind control?" he asked. "Tamerlan didn't turn [Dzhokhar] into a murderer. The defendant had to become a believer. And that's something he did himself."

As Weinreb read his script, it became clear, though, that he had written his remarks before Clarke had delivered her closing. And thus, at least some of what he said was not actual rebuttal at all.

"Objection," called the defense. "Overruled," said Judge George O'Toole. Again, objection: "He is outside the scope" — meaning outside the limits of the argument.

When Weinreb introduced a document that had never been entered into evidence, the defense jumped up again. When they asked to address the judge in a sidebar, he denied that. Still more objections. Overruled.

Lawyer David Hoose, who defended Kristen Gilbert in another federal death penalty case in Massachusetts, says the judge's ruling raises a flag.

"I don't think the rule is the government gets two arguments and the defendant gets one," he said, "and that might very well be an issue that the judge is going to hear about more in post-trial motions or if there is a death verdict."

It was one of a string of rulings O'Toole made against the defense.

Defense attorneys wanted the judge to instruct the jurors that if they fail to reach a unanimous verdict about the death penalty the judge would impose a sentence of life without parole. Without that instruction, they argued, jurors could mistakenly believe there would be a hung jury and therefore feel pressured to change their minds.

"If there's been a deep split in the penalty discussions, people are just so exhausted, you know, 'The judge told us we had to agree to something so I'm just going to agree because I'm in the minority,' " Hoose said.

That instruction was given to jurors by O'Toole's brother judges in two other federal death penalty cases here, but in this case he denied the motion.

It may well prove moot now that the jurors have begun to figure out for themselves whether they can reach a unanimous verdict for the death penalty on at least one of 17 charges.

David Boeri Senior Reporter
David Boeri is a senior reporter at WBUR.

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