The Penalty Phase: What Happens Next In The Tsarnaev Trial

"It was him." That's what Dzhokhar Tsarnaev's defense said during opening statements in the Boston Marathon bombing trial. The admission cut straight to what this case has really been about — the penalty phase, where a jury will decide if the 21-year-old deserves to die for the attack.

Now that the jury has found Tsarnaev guilty of 17 death penalty-eligible charges, this second phase will begin. Judge George O'Toole granted a request by Tsarnaev's defense to delay the trial, so the penalty phase will begin April 21. This means the trial will not take place during the anniversary of the bombing or on Marathon Monday.

So what happens in the trial's penalty phase?

We reached out to David Hoose, a criminal defense attorney in Northampton with experience handling federal death penalty cases, for insight into the penalty phase. Hoose represented Kristen Gilbert, a Northampton nurse convicted of killing four patients in 2001 and sentenced to life in prison. Here's what he had to say about the next steps in the Tsarnaev trial and what may be presented in court (edited):

Now that the jury has reached a verdict, what happens next?

The judge will then begin the penalty phase of the trial. So, there’s a guilt phase and if there’s a finding of guilty on a death-eligible offense, there is a penalty phase.

What’s going to happen is it will be just like starting the guilt/innocence part of the trial. The prosecutor will stand up and make an opening statement. The defense may and probably will make an opening statement. Then the prosecution will call witnesses in support of its aggravating circumstances. The aggravating circumstances have been outlined in the notice of intent to seek the death penalty and it's the equivalent of the indictment. Just like in the guilt phase they produce evidence to support the allegations in the indictment, in the penalty phase they produce evidence to support what’s contained in the notice of intent to seek the death penalty.

[NOTE: Hoose said the defense could ask to bifurcate the penalty phase, which Judge George O'Toole would have to approve. A bifurcation splits the penalty phase into two parts — an eligibility phase and a selection phase, according to Hoose. In the eligibility phase the jury is asked to decide whether the government has established one the factors outlined in their notice of intent to seek the death penalty and at least one of the aggravating factors beyond a reasonable doubt. There would be opening arguments, evidence presented and closing arguments in both phases, Hoose said. The bulk of evidence, though, would be provided in the selection phase and after that the jury would decide on the death penalty.]

How long will the penalty phase last?

I think it’s more likely going to be measured in weeks as opposed to days. You got to remember that this is not a typical case. I don’t know that there’s any such thing as typical. It really depends.

Will there be more witnesses called in the penalty phase?

Yes there will be. How many is going to be largely up to the judge. For the defense it’s really hard to say. I think you will probably see a mixture of friends, family members and expert witnesses.

Will there be new witnesses called or will some of them be people who already testified?

On the government side it's certainly possible that there will be some that have already testified. I think they are probably going to avoid that to the greatest extent possible. For the defense, I think you’re going to see essentially all new people. I would not expect any of the few [four] witnesses that the defense called to be put on again at the penalty phase.

Can the defense and prosecution enter in more evidence?

They can and they will. The evidentiary rules are lessened for the penalty phase. Just how much they’re lessened is something that there’s going to be a lot of legal jockeying over with the judge and between the government, defense and the judge. Essentially, the courts have held in the penalty phase that we're not restricting to the strict rules of evidence as they might apply in a guilt phase of a trial.

What is important about this phase for the prosecution?

I think that the prosecutors are going to be looking to essentially make the case that the defendant’s actions and the results of his actions are so extreme that the only proper societal response is a sentence of death. That’s basically what the prosecution is going to be trying to show.

What can we expect to see from the prosecution in this phase?

The biggest part of the government’s penalty phase is usually what we call victim impact evidence. The government has the right to show how the victims of the crime were impacted by the crime. I can’t imagine that Judge O'Toole is going to allow every single person that was injured to testify, it would go on for the rest of the year. I do suspect that he is going to put some limitations on what the victim impact evidence will look like.

A big part of what [prosecutors are] going to be offering can be summarized in two things. First of all the jury will be told that they can consider everything that was brought out in the guilt phase. So, for example, when they have an aggravating circumstance that alleges weapons of mass destruction they can say well we already showed that in the guilt phase.

A second part — a big part — in the government’s case on aggravation will be victim impacts. The Supreme Court has held that the impact of a crime on victims is a valid consideration as to whether the death penalty is appropriate but they have put restrictions on it. The judge is likely to be issuing rulings in terms of how many witnesses can testify and what specifically they’re going to be allowed to say. So, that’s the government side of the penalty phase in a nutshell.

What is important about this phase for the defense?

This is what the case has been about right from day one. No one has ever suggested that he didn't do this. It’s always been about what is the appropriate response. Is it a sentence of death? Is death the only way to deal with this? Or is a sentence of life in prison without any possibility of him ever getting out, is that a sufficient and appropriate penalty?

I think you’re gonna hear a lot of evidence as to why Mr. Tsarnaev should not be sentenced to death focusing on his age, the influences of his brother, the ability of our prison system to handle people like Mr. Tsarnaev and the question of whether or not we are not creating a recruiting tool for a-Qaida, ISIS or whoever by executing and making people like Mr. Tsarnaev in effect a martyr.

What can we expect to see from the defense in this phase?

I think that what you will see from the defense is essentially a four-pronged case for mitigation. Starting with the young age of Mr. Tsarnaev, followed by what we've already heard about the influence that his older brother had on him and I think there is also likely to be some testimony or argument raising the issue of: Are we not just furthering terrorism by executing people like this? Is death really the appropriate response?

And lastly, I think you will likely hear from somebody who will explain to the jury what would happen to Mr. Tsarnaev if they choose to give him life, that being he will, at least for the foreseeable future, end up at the Bureau of Prisons facility in Florence, Colorado, which we refer to as ADX. It is the most strict security place in the country and you may even hear from Bureau of Prisons officials who will basically tell you we can handle a guy like this.

What happens after both sides present their arguments?

The judge will instruct the jury on what they have to find to impose a sentence of death. The jury will deliberate. All 12 jurors have to be convinced beyond a reasonable doubt that death is the only appropriate punishment. Any one juror that refuses to go along can in effect save Mr. Tsarnaev’s life.

What happens next if the jury votes for the death penalty?

He would still probably not be sentenced to death that day. The sentencing would probably be put off for three to four months while post-trial motions are filed, while a report is prepared by the probation department, and he would come back and be sentenced. He would be sentenced to death at some point because the judge has no ability to override the jury’s sentence.

How long could it possibly take for post-trial motions? Is this also when there might be an appeal filed?

The post-trial motions may take three to four months. There would likely be a notice of appeal filed the date the sentence is imposed.

How long could the appeals take?

Appeals can take quite a long time. This is a long complicated case. I think you’re talking years.

If the juror votes for life in prison, what happens next?

In that case, the judge would formally impose the sentence after the probation department does a pre-sentence report and that’s likely to take three to four months. [Tsarnaev] would be brought back in and the sentenced would be formally imposed at that time.

Is there anything else that is important to know about the penalty phase of this trial?

I think you are probably going to see more evidence about the kinds of things that Mr. Tsarnaev was involved in. [Prosecutors'] notice of intent alleges a couple of things as non-statutory aggravators. For example, encouraging others to commit acts of violence and terrorism. They’re alleging that the selection of the site itself is an aggravating circumstance. So, I think you’re probably going to hear more from the government in terms of what they know about the Tsarnaev brothers and what they were up to in terms of terrorism. I think that's probably the other major thing that you’re going to hear at the penalty phase.