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Policy: Law

Death penalty for Boston Marathon bomber unlikely

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Opinion,Diane Dimond,Columnists,National Security,Law,Death Penalty,Boston Marathon Bombing

If I were a betting woman, I'd plunk down $10 right now and bet that suspected Boston Marathon bomber Dzhokhar Tsarnaev will die in prison and not in an execution chamber.

Yes, Attorney General Eric Holder recently announced the feds will seek the death penalty for Tsarnaev, but chances are the 19-year-old may never face the possibility of being put to death by the U.S. government.

Why do I say that? First, let's review some facts.

Tsarnaev and his older brother Tamerlan, 26, are accused of planting powerful bombs at the Boston Marathon's finish line, causing the deaths of three people and the wounding of more than 260 others. One of the dead was a police officer who was shot and killed during the ensuing manhunt for the brothers.

The older Tsarnaev was shot four days later during a final street confrontation with police. His death was hastened, according to the official indictment, after his wounded little brother ran over him while fleeing the scene in a stolen car.

Young Dzhokhar was found the next day hiding in a covered boat in the residential neighborhood of Watertown, Mass., not far from the bombing site. Inside the boat he had scrawled a handwritten message saying in part, "The U.S. Government is killing our innocent civilians. ... I can't stand to see such evil go unpunished. We Muslims are one body — you hurt one, you hurt us all." The message ends with the line, "Stop killing our innocent people and we will stop."

As the evidence against the surviving brother has mounted — and been widely reported — it doesn't seem that any jury would ever find him not guilty. But history shows Dzhokhar Tsarnaev might never face a jury.

According to the Federal Death Penalty Resource Counsel, in almost half of federal death penalty cases over the last 25 years, prosecutors ultimately withdrew the threat of death before trial. Instead, they agreed to plea agreements that resulted in life in prison with no possibility of early release.

Further, since the death penalty was reinstated for some federal crimes in 1988, seventy defendants have been sentenced to the death chamber, but only three have actually been executed: Oklahoma City bomber Timothy McVeigh in June 2001, Juan Raul Garza eight days later and Louis Jones Jr., who received a lethal injection courtesy of Uncle Sam in March 2003. (For the record, the three convicted murderers were — in chronological order — white, hispanic and black.)

But let's say prosecutors stick to their guns on the Boston bombing case, refuse to offer Tsarnaev a plea bargain and he actually goes on trial. I'm still not convinced he will get the death penalty.

Tsarnaev's lead defense lawyer is none other than Judy Clark, who has been called "a master strategist in death penalty cases" and has an unmatched track record of humanizing high-profile murder clients and keeping them off death row. Among those for whom she won life sentences instead of a date with the executioner: The Unabomber, Ted Kaczynski; the Atlanta Olympics bomber, Eric Rudolph; a Sept. 11 co-conspirator, Zacarias Moussaoui; and the young man who shot Arizona Rep. Gabrielle Giffords and killed six others, Jared Loughner.

Jurors don't relish condemning to death defendants who were teenagers at the time of their crimes because everyone knows teens often do stupid, impulsive things. Clark is sure to use both Tsarnaev's age and his culturally different and turbulent upbringing to appeal for mercy.

The Tsarnaev family emigrated from Russia in 2002. Dzhokhar is the youngest of four children born to a patriarchal and religious family whose Muslim faith considers elders to be important authority figures who are followed without question. Using one of the oldest tricks in a criminal defense attorney's briefcase, Clark will likely play on jurors' sympathies by emphasizing that Dzhokhar's actions were heavily influenced by his fractured family and his controlling, more radicalized older brother. She will probably stress how Dzhokhar felt abandoned after being left virtually alone in the wake of his parents' divorce. Both his father and mother moved back to Russia. The only one he had left to rely on was his older brother. Sob stories like these have actually been known to work when it comes time to sentence a defendant.

Another reason I doubt this young man will be condemned to execution has to do with the current public perception of capital punishment.

Nationally, the latest Gallup poll indicates that public support for the death penalty continues to decline. Only about 60 percent of Americans support the idea these days. But in the state of Massachusetts -- where any Tsarnaev trial is likely to be held -- a Boston Globe poll conducted last fall revealed only 33 percent of Bostonians want Tsarnaev to get the death penalty. Fifty-seven percent said he should be sentenced to life in prison with no possibility of parole.

It is a fact that federal prosecutors don't like to bring cases to court that aren't a slam-dunk win. Another fact: It will be difficult to seat a death-penalty-qualified jury in a state like Massachusetts. Once a potential juror says he or she cannot vote for capital punishment, he or she is disqualified.

Look, I may be all wet. The marathon attack was the most significant anti-American terrorist act on American soil since the tragedy on Sept. 11, a fact that is hard to dismiss. If there is a trial, and if it is actually held in Boston and not moved to another jurisdiction, disfigured victims of the bombing may attend the proceedings to show the jury, firsthand, the damage done to them. The anti-death penalty trend of the past decade may snap at that point and Tsarnaev may, indeed, face the executioner's needle.

But as I said at the outset, if I were a gambler, I wouldn't bet on that.

DIANE DIMOND, a Washington Examiner columnist, is nationally syndicated by Creators Syndicate.
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