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A Jury Is Now Deciding Whether the Boston Bomber Should be Put to Death

Over the course of several days, 12 jurors will fill out a 24-page questionnaire that helps them determine whether Dzhokhar Tsarnaev lives or dies.

by Allie Conti
May 13 2015, 10:00pm

The John Joseph Moakley United States Courthouse in Boston. Photo by the author

"Can I live?" It's the name of a Jay-Z song from his debut album Reasonable Doubt, a tweet that Boston Bomber Dzhokhar Tsarnaev wrote in 2012, and the essence of what 12 jurors are now deliberating in Massachusetts. This afternoon, both the government and the defense delivered closing statements in a trial that will ultimately decide whether the 21-year-old will be executed or sentenced to life without parole in the federal supermax prison in Colorado.

In March, the trial opened with superstar attorney Judy Clarke admitting her client was the bomber. Ever since, the proceedings have been about determining the appropriate punishment, rather than guilt or innocence. The trial had several dramatic turns, including the unveiling of a photo showing Tsarnaev flicking-off a security camera, the time he (might have) cried in court, and the testimony of a famous nun who said the bomber was remorseful.

Now, over the course of several days, the jurors will fill out a 24-page questionnaire designed to help them determine whether the Chechen national (and US citizen) lives or dies. (In 1972, the US Supreme Court ruled the death penalty cruel and unusual because there was no objective way to impose it, but four years later, in a separate decision, they reinstated it with the checklist. That's how it's been done ever since.)

For Tsarnaev to be put to death, the jury must decide the government proved each of the 12 aggravating factors they alleged, including that he targeted children, that he showed no remorse, and that the attack was premeditated.

Conversely, the defense set out to prove 21 mitigating factors, which include obvious facts like "Dzhokhar Tsarnaev was 19 years old at the time of the offenses," and statements that are less objective, such as "Dzhokhar was under the influence of his older brother." Others include that his "teachers and friends still care for him" and his "aunts and cousins love and care for him." There's also emphasis placed on Tsarnaev's disordered homelife and mentally ill father.

Then the arithmetic begins—aggravating factors minus mitigating ones, for all 17 capital counts of which Tsarnaev was convicted. But the judge presiding over the case has told the jurors to have a "reasoned, moral response" rather than a robotic one. The checklist, then, is only supposed to be a tool rather than the ultimate arbiter. (You can see the checklist for yourself at the bottom of this post.)

Throughout the proceedings Tsarnaev never took the stand. It would have been a risky move for the defense, because a bad impression would mean almost certain death for their client. But they needed to find a way to convey remorse on Tsarnaev's behalf. To that end, they had Sister Helen Prejean of Dead Man Walking fame take the stand after she met with him several times in prison.

"He said it emphatically, he said no one deserves to suffer like they did," she said Monday, describing Tsarnaev as "absolutely sincere."

On Wednesday, Tsarnaev's attorney Judy Clarke—who's never had a client get executed—echoed that sentiment, suggesting this is "not the same angry young man the prosecution has described to you.

"We're asking you to choose life," Clarke said. "Yes, even for the Boston Marathon bomber."

Tsarnaev Penalty Phase Verdict Form

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