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After four months of trial, a jury has sentenced Dzhokhar Tsarnaev to death for the 2013 Boston Marathon bombing.
He's the first person given a federal death sentence since Oklahoma City bomber Timothy McVeigh in 1997.
The Tsarnaev decision came after the sentencing phase of the federal death penalty trial, in which 63 witnesses gave often emotional testimony over three weeks. During this phase, defense attorneys tried to convince jurors that Tsarnaev acted under the influence of his radical older brother, while prosecutors portrayed him as willing partner in the act of terror.
In April, after the first phase (the guilt-or-innocence phase) of the trial, Tsarnaev was convicted of all 30 charges against him — including 17 death penalty charges. Now that the jury has issued its sentence, what's next?
We reached out to criminal defense attorney David Hoose ahead of the sentencing decision to learn more. He has experience handling federal death penalty cases and represented Kristen Gilbert, a Northampton nurse convicted of killing four patients in 2001 and sentenced to life in prison. Here’s what he said about what’s to come in the case (lightly edited):
What happens next?
Like any other federal case, the case will be continued for sentencing probably for a period of about three months.
Sentencing will then be probably sometime in the late summer/early fall. I think we can expect some post-trial, post-verdict motions by the defense.
What are the types of post-trial motions that might be filed?
Typically, the kinds of things that might be raised would be if information became available that jurors had been untruthful on their forms or there had been some indication that some impropriety had occurred in the jury room, that there was extraneous influences on the jury, or the defense team may choose to renew some of its earlier motions.
What about an appeal of the sentence, will that be filed?
Yes, there will certainly be an appeal and there will be a new defense team appointed for purposes of handling that appeal. So there’s going to be a little bit of time of transition [in] the case [with] the huge amount of documents and electronic data that this defense team has in its possession onto a new defense team. It will obviously take a little time to find lawyers with the time and skills to take on something as enormous as an appeal of this case.
Why is there a new defense team appointed during appeals?
That’s standard in most criminal convictions. You need to have a new set of eyes look over the entire case. It’s especially true in death penalty cases where you want to make sure the defense team, as highly regarded as they are, didn't miss something.
How long will the appeals process take?
I think it’s fair to say that that process is going to take years. A new defense team is going to be starting from scratch pretty much and has to familiarize itself with the [case] file. It’s an enormous amount of information, an enormous amount of factual information, an enormous amount of legal research.
I think that even people that are pro-death penalty want to make sure that all the i’s have been dotted and t’s have been crossed and that this has been a truly fair process and deserving of the level of due process that’s required when you’re going to take someone’s life.
When will Tsarnaev actually be sentenced to death?
That’s not likely to happen until the sentence is formally imposed, which is going to be no sooner than the end of August [or] beginning of September. If the verdict is death the judge has no choice, the sentence would not be formally imposed on that day.
How long does it usually take for the death penalty to be administered in federal death penalty cases?
We only have three cases where it’s been imposed. In these cases it was certainly a number of years. [Timothy] McVeigh, I think abandoned his appeals at some point, which expedited things. The other people that are waiting on the row, it’s a very time consuming process to say the least.
Note: Since 1988 (and as of April 28), the U.S. attorney general has authorized the government to seek the death penalty against 498 defendants, according to the Federal Death Penalty Resource Counsel. Of those, 234 resulted in guilty verdicts. In those cases, jurors imposed 154 life sentences and 80 death sentences. Of the 80 death sentences, only three people have been executed.
(Of the remainder of the 498 defendants, 232 avoided trial due to plea deals or because the judge barred the death penalty. Fourteen were acquitted, 14 are awaiting or currently on trial and others had the charges dropped.)
There hasn't been a federal execution in 12 years. Louis Jones Jr., a Gulf War veteran, was the last person to be executed by the federal government. He was executed on March 18, 2003, for the 1995 kidnapping, rape and murder of an Army recruit in Texas. He was sentenced in 1995.
Timothy McVeigh was executed on June 11, 2001, for the 1995 Oklahoma City bombing. He was sentenced to death in 1997. And Juan Raul Garza, a former drug kingpin, was executed on June 19, 2001, for three murders. He was sentenced in 1993.
In the other cases where a defendant was sentenced to death, 59 are pending on appeal, one was granted clemency and the other defendants either had their sentences vacated or died; some died by suicide.
How is the death penalty administered in federal cases?
It is by lethal injection but there is a stay right now because of questions about the lethal injection protocols, specifically what chemicals are appropriate to be used. There is no alternate method at this point and it is likely going to be resolved through litigation as to whether or not the court finds that the current lethal injection protocol is constitutional.
Note: In April, the U.S. Supreme Court began hearing three death penalty cases about whether certain drug combinations constitute cruel and unusual punishment when used to execute a convicted murderer by lethal injection.
Is there anything post-trial that could change the death penalty sentence?
Well sure. We saw this firsthand in Boston in the Sampson case where Gary Sampson was sentenced to death and then a couple years later as a result of some information that came to light about juror misconduct, Judge [Mark] Wolf granted a new trial on the issue of penalty.
So, sure that could happen. The conviction could be ultimately reversed and sent back for a new trial by the First Circuit.
There could be challenges to one or more of the persons that are allowed to sit on the jury. Certainly also the venue issue is going to be raised yet again on appeal and I think that’s ultimately an issue that may well find its way to the Supreme Court.
Venue cases that are out there basically give tremendous discretion to the trial judge, which is what the First Circuit [Court of Appeals] has already found. But, as Judge [Juan] Torruella famously said in his dissent on the ruling on the venue cases, “If you’re not going to grant a change of venue in this case, when would you ever grant one.” So it seems to be an issue that may well merit review by the highest court.
When will Tsarnaev go to death row?
Death row in the federal system is at Terra Haute, Indiana, and the [U.S.] Marshals Service has a great deal of discretion as to when they move him there. I do not think he will be moved there until he has been formally sentenced. Whether he will continue to be held where he has been held, it’s really something that I think the court is going to defer to the marshal service to wherever they feel he is in the best place for security reasons and his own safety.
So, it could be several months before he is on death row?