Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A BOSTON CRIMINAL LAWYER PREPARES FOR THE FEDERAL DEATH PENALTY VERDICT

Juries are often criticized in this country when folks don’t like the verdict they deliver. In my experience, though, jurors are not some ignorant bundle of jello-wobbling mindlessly from side to side during the trial, just waiting to pop out a verdict for the side with more money. In my experience, jurors try quite hard to deliver the verdict which rings true to them.

There is not much more we can expect from them.

The jurors in the federal multi-murder matter of convicted Boston Marathon Bomber Dzhokhar Tsarnaev (hereinafter, the “Defendant”) are now struggling with grappling a verdict which may be the most difficult of all. It is literally a life or death decision.

They had it kind of easy on the first trial…even the defense, from the start, took the position that “he did it”.

The jurors have been given 24-page verdict slip meant to guide their decision-making during deliberations. Thus far, they have already asked for clarification from the court as to legal issues twice.

Now they must make their grave decision…devoid of anger, sympathy or any of the other emotion that both sides have tried mightily to etch into their souls.

The prosecutors argue that the Defendant, at 21-years-0ld, is a remorseless terrorist who participated in the April 2013 bombing to make a political statement. The defense attorneys portrayed him as the troubled follower of an older brother who brainwashed him into joining his violent plan.

Both sides, perhaps to ensure the jury was not influenced by emotion, also reminded the jurors of the tear-filled testimony, the photographs of carnage and stories of death and disability.

The prosecution is said to have taken a “military”-type of stance, explaining that the Defendant is a remorseless terrorist who participated in the April 2013 bombing to make a political statement. They argued that the Defendant should be sentenced to death because he is, or was, a coldblooded, unrepentant killer who had terrorized Boston and, in turn, the entire country by bombing innocent people, including children.

“This is what terrorism looks like,” a prosecutor, told the jury in his hour-long closing. “It’s Martin Richard bleeding on the ground in agony while his mother bends over him and begs him to stay alive, saying, ‘Please, Martin,’ ” he said, referring to the 8-year-old boy killed by a bomb planted by the Defendant.

On the other hand, the defense opined that the Defendant was simply a young and troubled follower of an older brother who brainwashed him into joining his violent plan. The lead defense lawyer, told the jury in her 75-minute closing that while [the Defendant’s] crimes were “senseless and catastrophic,” he, himself, was not the “worst of the worst,” for whom the death penalty is reserved.

“We ask you to choose life, yes, even for the Boston Marathon bomber,” counsel argued. She added that a sentence of life does not dishonor the victims or minimize [the Defendant’s] crimes. “The sentence of life allows for hope, for redemption, for healing for everyone involved,” she said. “It’s a sentence that reflects justice and mercy.”

As one can see, there were no attempts to insert any emotion, thoughts of vengeance or sympathy into the murder proceedings.

The jurors now are studying a lengthy and complex verdict slip that asks them to decide whether the government has met the test for the so-called aggravating factors that would argue for the death penalty for each of the 17 charges. The aggravating factors include the depravity of the crime, the intent to kill children, the indifference to human suffering and the apparent lack of remorse.

At the same time, the jurors must consider whether the defense has met the test for the so-called mitigating factors that would argue for life in prison. These include the Defendant’s youth as well as the unstable home life created by his mentally ill father, emotionally volatile mother and violent older brother.

The purpose of the detailed verdict slip is to keep the jurors focused on relevant, legal factors and to try to lessen the influence of emotional factors. However, as the court has instructed the jurors, the process of weighing these factors “is by no means a mathematical or mechanical process.” He told the jury to consider the significance of each and allow for a reasoned, moral response.

“No juror is ever required to impose a sentence of death,” he said. Jurors must be unanimous if their decision is that the Defendant be put to death. Otherwise, the judge said, “I will impose a mandatory sentence of life in prison without the possibility of parole.”

    Attorney Sam’s Take On Emotion And Justice

As mentioned in my last posting, WBZ radio has requested to interview me after the Defendant’s sentencing. So, I have looked at various media postings at the New York Times and, of course, the Boston Globe .

What occurs to me is something that I have long argues in these pages.

Emotion does live in our criminal justice system. Good, bad and indifferent. We do what we can to keep it out…try to simply be logical. But we are ignoring the reality aren’t we when we do that?

“It sounds like our system is pretty inconsistent.”

It is…but you already knew that.

“Is it based on hypocrisy?”

Not necessarily based on it…but there is hypocrisy in it. We have discussed this fact many times. It is nothing new.

But, then, shouldn’t there be hypocrisy in the system?

“What?”

Well, let’s finish this subject on Monday. I am getting a call that the verdict is about to come down.

See you next on the radio or, in any case, on Monday.

In the meantime, have a great, safe and law-abiding weekend!

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