What Are Death Penalty Trials Like?

Now that Dzhokhar Tsarnaev has been found guilty on 30 charges — 17 of which carry the death penalty — for his role in the bombing of the Boston Marathon, the process moves into the death penalty phase. The same jury that gave guilty verdicts on all of the charges against Tsarnaev must now unanimously decide whether or not to sentence him to death. Now that the "guilt phase" is over, the trial moves into a "penalty phase." This new phase could begin at any time, but what are death penalty trials like? It will likely be a somewhat long and extremely emotional process.

Although the death penalty was abolished in Massachusetts, because Tsarnaev's case is a federal one, it still applies. According to a September 2013 poll by The Boston Globe, the majority of Boston residents would rather see Tsarnaev in prison for life than be sentenced to death. The jury of seven women and five men that convicted Tsarnaev will go through this new process, but there's no way to guess how they might decide. According to, the death penalty phase and sentencing have three main aspects to it: the prosecution gives aggravating factors, the defense presents mitigating factors, and, sometimes, victims give impact statements.

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Aggravating factors are what prosecutors cite when explaining why the death penalty would be justified in this particular case. The jury then decides whether that factor exists, the Cornell University Law School states. According to The Boston Globe, there are several factors that prosecutors, led by lead prosecutor William Weinreb, in Tsarnaev's case might use, including:

  • the intentional killing and infliction of injuries
  • the grave risk of death to multiple people
  • the planning and premeditation
  • the “heinous, cruel and depraved manner” in which the crimes were carried out
  • his encouragement of others to carry out similar crimes
  • the extent of the impact on victims
  • his lack of remorse

Jurors must decide that prosecutors proved at least one aggravating factor beyond a reasonable doubt, though the last three on the above list they are not legally required to prove.

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The defense is then given the chance to present mitigating factors that might provide the jury with information that would prevent them from handing out the death penalty. Judy Clarke, Tsarnaev's lawyer, is skilled in this area. She's had previous success in getting several high profile death penalty defendants life in prison rather than the death penalty. Among the mitigating factors the defense team might cite, according to The Boston Globe, are:

  • he has no prior criminal record
  • he was a lesser participant compared to his brother, Tamerlan
  • he was the youngest child in an immigrant family facing a difficult adjustment

Jurors must only find that mitigating factors have a preponderance of evidence, which is a lesser requirement than the beyond reasonable doubt required for aggravating factors.

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There were more than 90 witnesses who testified throughout the guilty phase process of Tsarnaev's trial. Jurors heard testimony from participants and spectators of the Marathon, including Sydney Corcoran, who described how it felt to nearly die; Rebekah Gregory, who lost her leg in the bombing; and Shane O'Hara, who depicted a scene of chaos as he struggled to decide which victim might need help more. But the victim impact statements during the penalty phase will be different.

According to the Department of Justice, a written or oral victim impact statement is a chance for those affected to not just describe what happened, like they do in a testimony, but to speak out about how the crime has affected them emotionally, physically, and even financially. Giving such personal statements can give victims closure and will also assist the jury in deciding what sentence to give the defendant. So, during the death penalty part of Tsarnaev's trial, the jury might again hear from Corcoran, Gregory, and O'Hara, but this time they might speak more personally about how the bombing has changed their lives.

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Family members of those who were victims of the crime are also given a chance to give a victim impact statement. In this case the families of Martin Richard, 8; Krystle Campbell, 29; Lingzi Lu, 23; and MIT police Officer Sean Collier, might speak. Martin's father, Bill Richard, testified during the guilt phase of the trial. In an incredibly emotional and painful testimony, Bill described the moment he realized Martin wasn't going to make it, so he had to focus on helping Jane, his 6-year-old daughter, who lost a leg. “I saw a little boy who had his body severely damaged by an explosion,” he said, “and I just knew from what I saw that there was no chance, the color of his skin, and so on.” If Bill decides to give a victim impact statement, one can only imagine the emotions that would arise as he describes how losing his son to the bombing changed his life.

In deliberation, the jurors must weigh the proven aggravating factors with the proven mitigating factors, though it's important to note though at least one aggravating factor has to be proven for each juror, that factor can be different for jurors, as long as there's one at all. Then the jury deliberates on whether or not to give a life in prison sentence or the death sentence. The decision must be unanimous, and if they can't agree, a life in prison sentence is automatically handed out by the judge.

The sentencing phase for Tsarnaev likely won't begin until next week at the earliest, though the exact timing is still unclear, Judge George O'Toole said. And there's really no guess as to how the trial might turn out. Although it's been said that many Bostonians don't want to see Tsarnaev die, the penalty process of factors and victim impact statements will surely be a difficult time for all.

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