This is “D-week” for Dzhokhar Tsarnaev, the convicted Marathon bomber. This has brought up a new discussion about the death penalty. That new discussion has brought up some facts which should frighten you a great deal.

We will get to them.

Presently, there is no death penalty in Massachusetts state court…even in cases of Murder in the First Degree the sentence is life in prison without parole. It is the Federal Criminal Justice System which still employs the use of death as a punishment for certain crimes by the government.

Before I discuss further the new discussion referenced above, I want to point out that death can be the result of criminal prosecution in more than one way.

A “war story” if you will.

    Attorney Sam’s Take: A War Story

His real name is not important. I will hereinafter referred to him as the “Defendant”.

He was finally coming to trial in a sexual sassault case. The case had not been indicted. He had not been held on high bail. I had spoken to him the prior week and he had seemed confident and in good spirits.

That is, as good as one’s spirits can be when facing such an accusation.

The case had been pending for over one year. It had almost gone to trial a couple of months prior, but the Commonwealth had needed a continuance to secure the presence of a necessary witness who had, until then at least, been unwilling to testify for the prosecution.

Ian and I had been recently retained to replace prior counsel just prior to that supposed trial date. We were quite confident, especially given the absence of the witness, as was our client. Nevertheless, as indicated, the matter was continued.

The case looked good for us. We were all cautiously optimistic. That’s about as trial counsel can afford to be starting trial.

Our client believed in us and we believed in his innocence.

Of course, I had not been there during the events at issue. However, the Defendant’s version made much more sense then the complainant’s story. Further, it was already indisputable that the complainant had previously lied to the police as to what had happened to her in very significant ways.

 Although he had had a few minor squeamishes with the criminal justice system years ago, the Defendant seemed to be pulling it together. He had family support. He had a girlfriend. He had a job. Through my preparation of him for trial, it was clear he would probably make a good witness because he made a good impression and was clear with what he said had happened.

It also helped that he did not have prior convictions about which we had to worry about. He could take the stand in his own defense without concern of prior cases coming back to haunt him.

Although he was going to clearly do his job, the assistant district attorney handling the case seemed to be a reasonable guy and did not seem to be out to “bury” the Defendant.

Further, the judge seemed reasonable as well.

All signs looked good.

The case was now scheduled to begin trial in June. We were now scheduled to argue motions in limine. Such motions, as you may know, are motions that are made by either side at the beginning of the trial in order to set “ground rules” about certain legal issues. They are extremely common. Both sides usually bring some. In this case, both sides had, indeed, prepared some.

I had spoken to the client about a week prior. preparing him for this date. We discussed the motions. We were both fairly upbeat and confident.

So it seemed.

At 9:00 AM sharp, the judge took the bench. My client, like several other clients of other attorneys, had not arrived yet.

This was unusual. This particular Defendant was always in court on time during this matter.

The judge was ordering, as each case was called, that the missing defendants be put into custody when they arrived because of the apparent default.

This not terribly unusual, by the way. Court begins at 9:00 a.m. and if a criminal defendant is not in court at that time, a default warrant may be ordered and the defendant arrested on said warrant.

We were getting closer to the Defendant’s case being called.

Ian went out to the hallway to call our client while I stayed to try and prevent the default order.

The case was called and, after a short argument, the judge ordered that our client be taken into custody when he arrived.

I went out to alert Ian…and the client if he was there.

Ian informed me that our client would not be going into custody.

He was, in fact, dead. He had been found mysteriously dead a couple of days prior.

I do not know for sure what killed my client. I know the police version. I know the families version.

Suffice to say that the Defendant’s death had not been at someone else’s hand. Whether it had been accidental or on purpose I cannot say for sure. What I can say is that the activity in which he was engaged at the time was something he had not done for quite awhile.

On other hand, it is something I have seen other accused persons do to help them “smoothe the edges” off the tremendous stress and fear which accompanies criminal allegations.

Especially if they are not “regulars”, which the Defendant, 18 years of age, was not. The overall result of awaiting trial for a criminal charge which could destroy his life.

It was a case in which he had ample reason to believe he would win at trial. But the living with the criminal justice cloud proved too much.

So much for the feeling on the part of most prosecutors that there is “no harm, no foul” to a defendant just being charged. Only when a defendant goes to jail.

There is harm. There is foul. And there can even be death.

This is not the first time I have seen it happen.

Speaking of death, let’s turn our attention to Boston’s Federal District Court as the infamous “Boston Bomber”faces the question of his own death.

See my next posting

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