[Deathpenalty] death penalty news----ARIZ., CALIF., USA

[Rick Halperin]

April 28



ARIZONA:

Court consideration challenge that Arizona's death penalty law too broad, 
applied arbitrarily



A judge has scheduled a May 8 hearing for arguments on a challenge that 
contends Arizona's death penalty law is unconstitutionally arbitrary.

The Arizona Republic (http://goo.gl/wf0EuA) reports that the challenge contends 
the law is unconstitutional because it lists numerous possible circumstances 
when the ultimate penalty could apply, giving prosecutors too much leeway.

The motion being considered in Maricopa County Superior Court cites a 1972 
ruling in which the U.S. Supreme Court said states' laws must distinguish 
between cases for which a death sentence can be sought and ones in which it 
can't.

Arizona's so-called "aggravated factors" that could make a defendant subject to 
a possible death sentence have gradually increased to 14. According to the 
defense motion, nearly all first-degree murder cases now fit under one factor 
or another.

(source: Associated Press)








CALIFORNIA:

After 13 years on death row, Redding man's sentence overturned; guilty verdict 
stays



After nearly 13 years on death row, a Redding man's sentence was overturned 
Monday by the California Supreme Court, which ruled that he was improperly 
barred from calling an expert witness.

The court upheld the 2002 murder conviction of Paul Gordon Smith Jr. but said 
his death penalty sentence was improper.

"Because we cannot say, beyond a reasonable doubt, that the penalty 
determination would have been the same had the jury heard from defendant's 
expert, we must reverse the penalty judgment," said the 7-member court in a 
unanimous 58-page opinion authored by Justice Carol A. Corrigan.

The Shasta County District Attorney's Office now has the option of retrying the 
trial's penalty phase or allowing Smith, now 37, to serve the rest of his life 
in state prison.

Smith, who has been on death row at San Quentin State Prison, was found guilty 
of the gruesome torture and prolonged beating death of 20-year-old Lora Sinner 
while they were camping in 1998 in the Trinity Alps. 3 others camping with 
Smith and Sinner were charged, but they confessed to the killing and testified 
against Smith at his 2002 trial.

Kathy Moreno, the Berkeley defense lawyer who argued for Smith before the high 
court, said Monday, "It is a really deserving case. Any court would have 
reversed that penalty based not only on the exclusion of evidence but the 
strong case in mitigation."

She was referring to the testimony of numerous witnesses who detailed Smith???s 
difficult life as a child, including prolonged molestation at a very young age 
by his father and his subsequent journey through multiple placements in the 
social services system, where he encountered further physical abuse and 
repeated disappointment in seeking a stable family environment.

At his trial, prosecutors argued that Smith should be executed, citing Smith's 
long history of brutal behavior, including the savage beating of a guard and 
escape attempt from Shasta County jail on the eve of his trial.

Smith "has shown himself to be violent and dangerous in every setting, and he 
will continue to be so now and into the future," a prosecutor stated in closing 
arguments.

Smith's lawyers in 2002 tried to rebut the argument by calling James Park, a 
former San Quentin associate warden, as an expert witness to testify that 
life-without-parole prisoners are watched at all times by an armed guard from a 
secure location, that no guard enters prisoner areas unless accompanied by 
another guard, and that prisoners who behave in a dangerous manner are placed 
in solitary confinement.

But Shasta Superior Court Judge James Ruggiero sustained the prosecution's 
objection to allowing Park to testify. The judge ruled that evidence of "what 
it's like to be in prison" was not admissible, including state prison security 
measures. Ruggiero reasoned that the evidence had no relevance to the issues of 
Smith's character and culpability or to any aggravating or mitigating 
circumstances.

However, the Supreme Court said Monday that evidence of prison life is 
admissible if offered for the purpose of rebutting the prosecution; it ruled 
that Park should have been allowed to testify. Keeping Park off the witness 
stand "significantly enhanced" the impact of the prosecution's evidence on 
Smith's future dangerousness. "Such an unfair advantage on the critical 
question of penalty offends the fundamental principles of due process," the 
justices declared.

(source: Sacramento Bee)

*****************

Prosecutors to seek death penalty against man accused in Suisun City girl's 
2013 slaying



Solano County prosecutors announced Monday they will seek the death penalty 
against a Fairfield man accused in the February 2013 slaying of a young Suisun 
City girl.

The announcement, made by prosecuting Deputy District Attorney Terry Ray, came 
during a brief hearing in Solano County Superior Court involving murder 
defendant Anthony Lemar Jones. Jones, 33, faces a murder charge carrying 
special circumstances in connection with the death of 13-year-old Genelle 
Conway-Allen, whose naked and lifeless body was found Feb. 1, 2013, in Allan 
Witt Park.

Defense attorneys for Jones asked for more time to set a trial date following 
the announcement and Jones was ordered back to court on June 30.

Jones is alleged to have followed Genelle in his vehicle as she walked home 
from school on Jan. 31, 2013, before stopping to ask her name. A student who 
was walking home with her that day testified during a November 2014 hearing 
that he saw Genelle get in Jones' car.

Genelle, according to testimony, did not return home that day, leading her 
foster mother to report her missing.

She was found dead the following morning.

Fairfield police detectives, using city owned surveillance camera footage near 
East Tabor Avenue led them to a suspect vehicle in the days following Genelle's 
death.

A surveillance camera owned by a local business near Allan Witt Park also 
provided detectives with a glimpse of a suspect vehicle entering the south 
entrance to the park, eventually stopping near the crime scene. Notably, the 
front passenger headlight appeared to be crooked, detectives testified.

Testimony during the November hearings indicated that Jones' vehicle had front 
end damage from hitting an object in a parking stall prior to the incident.

Police also testified to injuries Genelle was believed to have sustained. 
Further, it was noted that her neck had the impression of ligature marks, and 
her wrists had tape residue on them as if her hands had been bound.

The initial cause of death was homicide by strangulation, according to 
testimony.

A forensic neuropathologist for the Santa Clara County Medical 
Examiner-Coroner's Office performed a 2nd autopsy in the case and testified the 
body showed injuries consistent with sodomy, and 2 hemorrhages under her scalp 
could be consistent with blunt force trauma prior to her death.

A DNA expert testified that Jones' DNA was present on the swabs taken during 
Genelle's autopsy.

The special circumstance allegations prosecutors have included allege the 
murder was committed during the commission of a kidnapping, sodomy and lewd or 
lascivious act.

The announcement comes as Solano County prosecutors are in the midst of 
prosecuting another Fairfield man in a death penalty case.

This week, attorneys in the case of Henry Albert Smith Jr., are in the 
beginning stages of selecting a jury in what was, up until Monday, Solano 
County's only active death penalty case.

Smith, who prosecutors are seeking capital punishment against, is accused of 
the Nov. 17, 2011, gunshot slaying of Vallejo Police Officer Jim Capoot.

Both men have pleaded not guilty in their respective cases and remain in Solano 
County Jail custody without bail.

(source: The Reporter)








USA:

Tsarnaev defense: spare him the death penalty, put him in supermax prison; The 
legal team for convicted Boston Marathon bomber Dzhokhar Tsarnaev on Monday 
delivered its opening statement in the sentencing phase of the trial and also 
targeted the character of his older brother and co-bomber, Tamerlan.



The final act of the Dzhokhar Tsarnaev trial began Monday with his defense team 
laying out in its opening statement why its client should be spared the death 
penalty.

In front of a courtroom at almost full capacity, defense attorney David Bruck 
opened the morning session with a soft and measured plea to the jury to instead 
sentence Mr. Tsarnaev to life in prison for participating in 2 bombings near 
the Boston Marathon finish line in April 2013 that resulted in 3 deaths and 
more than 260 injuries.

About 3 weeks ago, a jury convicted him on all 30 charges related to the 
bombings, triggering a sentencing phase in the trial to determine his 
punishment: either death or life in prison without the possibility of release. 
Last week, after 3 days of testimony, the government rested its case in that 
phase, calling for Tsarnaev to receive the death penalty.

For the defense, the sentencing phase will allow it to address issues it's been 
able only to dance around so far in the trial. Since the 1st round of opening 
statements in early March - when defense lawyers essentially admitted 
Tsarnaev's guilt - their primary goal has been to spare his life.

In his almost hourlong opening statement, Mr. Bruck began by acknowledging the 
horror of the bombings and the suffering of the hundreds of victims that the 
jury has been hearing about throughout the trial.

But he also used that graphic testimony to make the point that the death 
penalty can never match or cancel out the suffering of the bombing victims.

"You've now seen more pain and more horror and more grief in this courtroom 
than any of you will have thought possible," Bruck said to the jury. "There is 
no evening the scales, there's no point hurting him the way others were hurt 
because it can't be done. All you can do is make the best choice."

The sentencing phase also enables the defense to dig into an argument it 
touched on but lightly in its initial defense - that is, the role of his older 
brother and co-bomber, Tamerlan. According to the defense, Tamerlan Tsarnaev 
was the radicalized mastermind of the bombings who pressured his younger 
brother into helping execute his own personal jihad.

"No one is going to claim that Tamerlan forced Dzhokhar to commit these 
terrible crimes," said Bruck. "But the evidence will show that if Tamerlan 
hadn't led the way, Dzhokhar never would have done any of these things."

"How do we know this?" he added. "Because Tamerlan's motivation to carry out 
this attack was so much stronger and had been building for so much longer."

The 1st slate of witnesses on Monday saw the defense aggressively pursue a 
strategy of portraying Tamerlan as an imperious, irascible man who grew 
increasingly radical over the years.

The 1st 3 witnesses were men who saw Tamerlan shout down an imam twice in the 
months before the bombings: Laith Albehacy, Abderazak Razak, and Loaf Assaf, 
the imam whom Tamerlan confronted.

In late January 2013, Mr. Assaf described Tamerlan interrupting a sermon he was 
giving comparing the prophet Muhammad to Martin Luther King Jr.

"He was fired up, very hot, and he was shouting, 'This is wrong,'" recalled 
Assaf. "He kept saying, 'This is not Islamic, this is not right, you are a 
hypocrite,' and people at the time were telling him to shut up and sit down."

Judith Russell - mother of Katherine Russell, Tamerlan's widow - testified 
later in the afternoon that he tried to talk to her about Islam and politics 
"every time I saw him."

"He always wanted to talk about how Islam was good, and over time it came to 
seem an obsession," Ms. Russell said. "Over the time I knew him, I saw a 
progression in the intensity of his beliefs."

In his opening statement, Bruck also outlined how the defense plans to show how 
the Tsarnaev brothers' turbulent and nomadic childhood - disrupted by decades 
of conflict and forced migration in their native Chechnya - helped contribute 
to their final decision to commit the bombings.

On the day the defense began to make its case that Tsarnaev should be spared 
the death penalty, another poll was released showing that less than 20 % of 
Massachusetts residents believe he should be put to death for this crime.

These results - which continue a trend among residents in the region favoring 
life in prison over death for Tsarnaev - also found that, despite these 
specific opinions on Tsarnaev, nearly 1/3 of respondents support the death 
penalty for the most egregious crimes.

"To voters, it would seem death is too easy an escape," said Frank Perullo, 
president of Sage Systems, which conducted the poll for The Boston Globe.

Near the end of his opening statement, Bruck tried to show just how punitive 
life in prison would be for Tsarnaev. He showed the court aerial pictures of 
the sprawling, snow-covered federal super maximum security prison in Florence, 
Colo. The prison - also known as ADX Florence or the "Alcatraz of the Rockies" 
- houses the male inmates in the federal prison system deemed most dangerous 
and in need of the tightest control.

"This is where the government keeps other terrorists who used to be famous but 
aren't anymore," he told the jury.

He then moved to another photo, a close-up of a small barred window staring up 
at the sky. The window, Bruck said, represents inmates' only contact with the 
outside world for the majority of their sentence. Communications would be 
strictly limited in the facility, he added, and a camera in his cell would 
watch him 24 hours a day.

"No matter what [Tsarnaev] does now, no matter what regrets he feels, no matter 
how he matures, no matter what amends he might want to make, his last choice 
came when he was 19, and he will never have the chance to make another choice 
again," said Bruck.

(source: Yahoo News)

*********

Boston Marathon bomber tries to avoid death penalty



Attorneys for Boston Marathon bomber Dzhokhar Tsarnaev on Monday told a jury 
deciding whether to put him to death that there is no punishment they can give 
him that will equal the pain he's caused his victims.

"There is no sense in trying to hurt him as he hurt them because it can't be 
done," attorney David Bruck said in explaining why the 21-year-old should be 
spared the death penalty.

Bruck presented the opening statement for the defense in the penalty phase of 
Tsarnaev's death penalty trial. The same 12 jurors who convicted him on all 30 
counts will soon decide whether he will be executed or sentenced to life in 
prison with no chance for parole.

Bruck told jurors that no one forced Tsarnaev to do what he did, but the jury 
should consider more than the crimes he committed.

"It's more complicated than just the crimes themselves," he said.

He said Tsarnaev was responsible for so much pain, horror and grief that no 
punishment could equal his crimes. It is impossible to try to avenge the 
victims to even the score, he told the jury.

He showed aerial photos of ADX Florence, a supermax facility in Colorado where 
Tsarnaev would spend the rest of his life. Sending him there would mean he 
could never hurt any one again, could not do media interviews and could not 
write an autobiography. He would also avoid heroic status among extremists.

"No martyr," Bruck said.

Bruck said the jury will hear how his muscular older brother, Tamerlan, had 
taken control of the family when their mentally ill father could no longer 
handle that traditional patriarchal role, a strong feature of their Chechen 
culture.

Tsarnaev never defied his brother, who couldn't hold a steady job and was 
obsessed with jihad to the point of almost thinking about nothing else.

Dzhokhar Tsarnaev "was a good kid," Bruck said. "Dzhokhar really was what he 
appeared to be - a lost teenager."

He said life in prison would be best for everyone as Tsarnaev would "be locked 
away and never be heard from again."

"His last chance happened when he was 19," Bruck said, "and he will never be 
given another."

Defense attorneys used their 1st witnesses Monday to paint a picture of an 
older brother who was quick to anger, bully and insist on conformity to a 
fundamentalist style of Islam.

Witnesses said Tamerlan was at one time an outgoing partier, but came to 
renounce alcohol and marijuana at the same time he started wearing traditional 
Islamic dress around 2011. Two witnesses recalled him standing up and 
interrupting Friday sermons at the Islamic Society of Boston mosque in 
Cambridge.

In one Jan. 2013 sermon, Loay Assaf tried to compare Martin Luther King Jr. to 
the prophet Mohammed. But Tamerlan angrily leapt to his feet, shouted and shook 
2 fingers in Assaf's direction. He objected to the comparison of the prophet to 
a kafir, or infidel.

"He was fired up, very hot - I could see his face was made to red," said Loay 
Assaf, an imam who gives monthly sermons at the Cambridge mosque. "Even his 
stance was fighting stance."

Abderrazak Razak said he'd Tamerlan get angry at the Cambridge store where he 
sells Middle Eastern foods and halal meat. When he was selling halal turkeys at 
Thanksgiving one year, Tamerlan grew angry and rebuked him.

"He yelled at me that this is haram, that it is not right to sell turkeys," 
Razak said. In the witness box, he stood and showed what Tamerlan did with his 
hands and arms, pointing a finger accusingly and waving his long, muscular 
arms.

Prosecutors pushed back by downplaying the testimony.

"All you can tell us is that in 2012 Tamerlan Tsarnaev told you that 
Thanksgiving is not an Islamic holiday, and you shouldn't sell turkeys," said 
Assistant U.S. Attorney William Weinreb in cross-examining Razak.

"Yes," Razak said.

Since Tsarnaev's trial began March 4, the defense has argued that Tsarnaev was 
the lesser of two perpetrators in the April 15, 2013, bombings that left three 
dead and more than 260 injured. But jurors have heard few details about his 
relationship with his older brother, alleged mastermind Tamerlan Tsarnaev, 
because discussion of family history was off limits n the guilt phase.

Now family history and other potentially mitigating factors are fair game for 
the defense to press. Relatives of Tsarnaev arrived in Boston from Russia last 
week and are expected to testify.

Defense attorneys face an uphill challenge, according to Chris Dearborn, a 
criminal defense attorney and professor at Suffolk University Law School.

"He's now been convicted," Deaborn said. "The only thing you can do to save his 
life from a defense perspective is to try to find some aspects of his 
character, his characteristics or his development that would mitigate" the acts 
he committed.

"They have to walk a fine line between humanizing the kid and not painting him 
as a normal kind of kid because he's clearly not," Dearborn said. "The better 
bet is to focus on how influenced he was and how things that happened 
historically in his life contributed to that influence."

Tsarnaev entered the courtroom at 9:55 a.m. wearing his usual black sport 
jacket. Under his jacket, he wore a blue, v-necked T-shirt. His wavy hair was a 
bit messy as usual. His face was clean-shaven around his goatee.

He did not look at the galley as he walked to his seat, even though he has 
family members in the United States who have come from Russia to support him. 
None of his family members were noticeably present in the galley.

The courtroom was packed to capacity. Members of the general public also 
gathered in a separate courtroom to watch proceedings on a monitor.

(source: USA Today)

******************

Tsarnaev's lawyer urges 'unrelenting punishment'



A lawyer for convicted Boston Marathon bomber Dzhokhar Tsarnaev called on a 
jury on Monday to sentence him to "a lifetime of unrelenting punishment" rather 
than death.

Convicted Boston Marathon bomber Dzhokhar Tsarnaev was adrift and following his 
obsessive older brother when he carried out the deadly 2013 attack, a defense 
lawyer said on Monday as he urged a jury to spare his client's life.

The defense sought to portray Tsarnaev as a member of a fractured family who 
easily fell under the spell of his 26-year-old brother, Tamerlan. Lawyers 
described Tamerlan as the mastermind of the April 15, 2013, attack that killed 
three people and injured 264.

It also echoed the recent words of the family members of some of the people 
killed by the 21-year-old ethnic Chechen in saying that sentencing Tsarnaev to 
prison for the rest of his life would both punish him and ensure he is removed 
from the intense media spotlight he has occupied for the past 2 years.

"No punishment could ever be equal to the terrible effects of these crimes on 
the innocent people who were killed and hurt or on their families," said 
defense attorney David Bruck. "There is no point in trying to hurt him as he 
hurt because it can't be done."

"When people who knew Tamerlan heard that he bombed the marathon, it kind of 
fit. But people who knew Dzhokhar were stunned," Bruck said. "The man who 
conceived, planned and led this crime is beyond our power to punish."

Tamerlan died following a gunfight with police early on April 19, 2013, hours 
after the brothers fatally shot a university police officer.

The Russell family disapproved of the relationship and did not attend the 
wedding, Russell testified.

"Over time, he became much more religious and talked about it much more 
frequently, like any time I saw him," Russell testified. She added Tamerlan 
often wanted to discuss "this country's influence and harm to Islamic 
countries."

SLIM SUPPORT FOR CAPITAL PUNISHMENT

The death penalty remains highly controversial in Massachusetts, where state 
law does not allow the punishment, although Tsarnaev could face it because he 
is on trial in federal court.

A Boston Globe survey released on Monday found that just 19 percent of 
Massachusetts residents support the idea of putting Tsarnaev to death, fewer 
than the 30 % who support the death penalty for "heinous" crimes. The poll of 
804 people conducted April 22 and 23 has a margin of error of 3.5 % points.

In sharp contrast to the last phase of the trial, when the defense took just 2 
days to call 4 witnesses, the court has scheduled about 2 weeks worth of 
testimony as Tsarnaev's lawyers make the case to spare his life. The defense 
called a half-dozen witnesses in the first few hours of testimony on Monday.

Defense attorneys plan to call some members of his family, who traveled to 
Boston from Russia, a computer forensics specialist who will testify to 
Tamerlan's "obsessive" reading of jihadist literature and an expert in brain 
development who will discuss the teenage mind.

It remains unclear whether Tsarnaev will speak in his own defense. He has shown 
no signs of emotion as the jury heard tearful testimony from survivors and 
viewed graphic, disturbing images of the bombs' detonation and aftermath.

Loay Assaf said he had been giving a sermon in January 2013 drawing parallels 
between slain U.S. civil rights leader Martin Luther King Jr. and the prophet 
Mohammed, when Tamerlan loudly interrupted the proceedings.

"He was shouting at me and so angry and fired up that this is not Islamic, this 
is wrong, you should not say that. And he would just keep repeating this," 
Assaf said. "I felt awkward honestly because people don't usually do this."

(source: World Bulletin)

*************

Boston Marathon bomber unlikely to be executed - even if jury votes for 
death----Nationwide shortage of lethal injection drugs has only made it less 
probable that the federal government - which has only executed 3 people since 
the late 60s - will put Dzhokhar Tsarnaev to death



Bill Richard has been watching the government seek death for his son's killer 
for months.

Since the beginning of the trial of Dzhokhar Tsarnaev, Richard, whose 
8-year-old son Martin was 1 of 3 people killed at the finish line of the 2013 
Boston Marathon and whose 6-year-old daughter Jane lost a leg, has sat in the 
courtroom almost every day. Often, his wife Denise, who was blinded in 1 eye by 
the bomb that killed her son, sat by his side.

When, in April, the jury returned a verdict of guilty on all 30 counts - 
including 17 that carry a possible death sentence - Richard was there.

Since January, federal prosecutors have called almost 100 witnesses, 
single-mindedly pushing for one simple goal: to put Tsarnaev to death. Now, as 
the defence opens its case for why Tsarnaev should avoid a death sentence on 
Monday, the trial is reaching its climax. Once the defence rests, in as soon as 
a week, the jury will be asked to decide whether the 21-year-old should live or 
die - the only real issue to be settled in a case in which his involvement in 
the bombings was never really in doubt.

But if the jury votes for death, their verdict may not be the end. Since the 
late 1960s, despite pursuing hundreds of capital cases, the federal government 
has executed only 3 people. And with a nationwide shortage of injection drugs 
caused by an international boycott by pharmaceutical companies - pushing the 
issue to the political fore - Tsarnaev's fate would likely remain uncertain. 
And even if execution drugs could be procured, the case could easily be tied up 
in appeals for decades.

The Richards have been integral to the government's case for death. When called 
to the stand, Bill Richard's testimony was among the most memorable, the most 
gut-wrenching, even among a litany of victims telling heartbreaking stories of 
the violence wreaked upon them.

And when the prosecution opened the sentencing phase - the part of the trial 
where the jury will decide whether to send Tsarnaev to his death - they did so 
in front of an easel displaying a picture of Martin Richard, dressed in green 
and wearing beads for St Patrick's day. On that day, too, Bill Richard was 
there.

But the Friday before the government began to lay out its case for death, the 
Richards used a front-page editorial in the Boston Globe to beg the government 
to abandon its push for execution, in part because the endless appeals that 
would likely ensue would give them and other victims little chance for closure.

"The continued pursuit of that punishment could bring years of appeals and 
prolong reliving the most painful day of our lives," they wrote. "We hope our 2 
remaining children do not have to grow up with the lingering, painful reminder 
of what the defendant took from them, which years of appeals would undoubtedly 
bring."

'The only thing that's certain is that he will never breathe free air'

Experts in the federal death penalty predict that complex and prolonged appeals 
lie ahead which, together with the crisis in the system of lethal injections, 
mean that it might be years before he enters a death chamber - if he gets there 
at all.

"The question is how will Tsarnaev die in prison. Will he die of a heart attack 
in his cell aged 60, of old age at 80, or will he be executed? The only thing 
that's certain is that he will never breathe free air again," said George 
Kendall, a New York lawyer who has been involved in capital cases for the past 
30 years.

According to the Federal Death Penalty Resource Counsel Project, between 1988 
and 2014 the federal government took 229 capital cases to trial. In only 1/3 of 
them did juries condemn the defendant to die.

In some of those cases, a plea deal was reached - such was the case for 
Unabomber Ted Kaczynski, whose lawyer, Judy Clarke, is also representing 
Tsarnaev. But no such plea deal was made available in the Boston case; the 
government has been implacable in seeking death.

A death sentence would make Tsarnaev the 62nd inmate of the federal death row 
hosted at the US penitentiary at Terre Haute, Indiana. He would take occupation 
of a cell besides other condemned men whose racial composition is 44% African 
American, 39% white, 13% Latino and 2% each Native American and Asian.

The longest-standing members of the group have already been awaiting execution 
for 22 years, an indication of the pressures facing the federal death penalty. 
Since 1963, the federal government has put only 3 civilians to death (most 
executions in the country having been carried out by individual states such as 
Texas, Florida and Missouri).

The most notorious of them, Timothy McVeigh, was executed in June 2001 for the 
Oklahoma City bombing that last week marked its 20th anniversary. The other 2 
were Juan Raul Garza, who was put to death 8 days after McVeigh for a triple 
drug murder; and Louis Jones, who was given a lethal injection in March 2003 
for the rape and murder of a US army private.

Most of the men on federal death row were put there for reasons that are only 
tangentially connected to the federal government. Marcivicci Barnette, for 
instance, was involved in a carjacking in which he killed his former girlfriend 
and another man - murder during carjacking being classified as a federal crime. 
Alfred Bourgeois killed his daughter, but it was only because he did so on a US 
naval base that earned him a federal trial.

Only a small percentage of cases involved what most people would think of as 
definitive federal issues such as terrorist attacks or, as in both the Oklahoma 
City bombing and the Boston Marathon attack, an outrage perpetrated on the 
American public. "The Tsarnaev case is an outlier - it's in the same category 
as McVeigh and Oklahoma City, but can???t be compared with almost everyone else 
on federal death row," Kendall said.

Richard Burr was a member of the legal team that defended McVeigh at his 1997 
capital trial. He has watched the Tsarnaev trial in Boston with great interest, 
seeing in it the same intense pressure for a result that he experienced with 
McVeigh 18 years ago.

Burr expects that the peculiar difficulties that Tsarnaev???s defense lawyers 
have had investigating their client's background in Kyrgyzstan, combined with 
Judge George O'Toole's insistence on pressing ahead with a trial date, will 
provide plenty of grounds for a robust appeal that could last 10 years or more.

"It's really critical to allow the defense time to do a thorough investigation 
into mitigation of their client. This judge seems to have felt pressure to get 
this case to trial - that's a dynamic often involved in these cases of public 
attacks."

Burr could not say what motivated O'Toole to push ahead with the trial despite 
the defense team's struggles. "But it seems to me unfortunate as it makes the 
entire process of defending someone much more difficult," he said. "Juries are 
entitled to hear the best mitigation if there is to be any integrity in the 
federal prosecution system."

In the McVeigh case, Burr said he and his co-counsel were given plenty of time 
to prepare, but shortly before the trial opened a confidential file in which 
the defendant described how he had committed the Oklahoma City bombing was 
obtained by a reporter and published, throwing the whole defense case into 
crisis. Burr pleaded with the judge to delay the trial to avoid a prejudiced 
jury, but to no avail.

That went on to become a priority issue raised in subsequent appeals, which 
despite being fast-tracked by the courts looked set to last several years until 
McVeigh himself decided to give up the fight. "He became reconciled to the fact 
that he was going to be executed. He sort of lost hope," Burr said.

Should a similar high-speed appeals process be introduced for Tsarnaev, the 
federal government would still have to contend with the ongoing chaos in the 
lethal injection system. The US government may be among the most powerful on 
earth, but that does not immunize it from the shortage of lethal drugs that has 
affected death penalty states as a result of a worldwide boycott.

A dearth of lethal injection medicines has propelled states such as Oklahoma 
and Arizona to take increasingly extreme measures in using experimental drug 
combinations - the subject of oral hearings at the US supreme court on 
Wednesday. Following a challenge from 3 inmates of federal death row, the US 
government has effectively put all executions on hold since 2006, and is 
currently involved in a lengthy review of its death penalty protocols. Some 
states have sought alternatives, like firing squads in Utah or nitrogen gas in 
Oklahoma.

Jennifer Moreno, a staff attorney at the Death Penalty Clinic at Berkeley Law, 
said in contrast to the unseemly scramble for quick solutions that had been 
seen in several death penalty states, the federal approach to finding an 
alternative method of execution appeared to be measured and appropriate.

"The states have engaged in questionable legal positions such as buying lethal 
drugs from overseas or using lightly regulated compounding pharmacies," Moreno 
said. "I don't think we are going to see the federal government do any of 
that."

But the dilemma of the drugs adds yet another layer of complexity in the 
Tsarnaev case. The US government is clear about its desire to strap Tsarnaev to 
a gurney and pump lethal poisons into his veins. Even if the government can 
convince the jury that this is what Tsarnaev deserves, getting there may not be 
easy.

All of this, the Richards claim, means that if the jury votes for death, their 
ordeal cannot be over. But while the jury are of course banned from reading 
media coverage of the trial - Judge O'Toole has repeatedly stressed that jurors 
cannot even discuss it with family members - the sense on the streets remains 
that it would be far better to lock him up and throw away the key, so that 
everyone can get on with their lives. A Boston Globe poll released Sunday found 
less than 20% of Massachusetts residents support the death penalty for 
Tsarnaev; in the city of Boston, that number was as low as 15%.

This is almost certainly going to be part of the defense's argument as they 
plead for his life. Clarke, who is herself an avowed opponent to the death 
penalty, is likely to make an impassioned plea for mitigating factors - that 
Tsarnaev was weak, that he was manipulated by his older brother. Throughout it 
all, the Richards will be watching and waiting.

Whether they will get their wish will rest in the hands of the jury.

(source: The Guardian)