[Deathpenalty] death penalty news----TEXAS, NEV., USA

[Rick Halperin]

May 18



TEXAS:

Biker Gang Accused Could Face Death Penalty



Some 170 bikers are facing murder charges - and potentially the death penalty - 
after 9 people were killed during a shootout between rival motorcycle gangs in 
Waco, Texas.

A fist fight broke out in the bathroom of the Twin Peaks restaurant before 
spilling into a car park as the bikers attacked each other with clubs, chains 
and knives before opening fire.

8 of the bikers died at the scene on Sunday, with another dying in hospital.

18 others were taken to hospitals with injuries including stab and gunshot 
wounds.

Police say the arrested bikers, who come from 5 different gangs, face charges 
of engaging in organised crime for capital murder.

The blanket murder charge is possible given the number of those killed in a 
single incident, Sgt Swanton said.

A capital murder conviction is punishable by death in Texas.

Police initially said 192 people were taken into custody but revised that 
number downward on Monday.

Sgt Swanton said: "This is probably one of the most gruesome scenes I've ever 
seen in my 34 years of law enforcement.

"I was amazed that we didn't have innocent civilians killed or injured.

"This is not something we're playing around with. This is a major crime 
scene... it is a pretty gruesome scene."

He added that the interior of the restaurant was littered with bullet casings, 
knives, clubs, bodies and pools of blood. Up to 100 weapons are also thought to 
have been recovered.

Snipers stood watch from the restaurant's roof on Monday because of fears of a 
potential attack on police by the gangs.

Many of the people arrested were detained arriving at the scene with weapons to 
try and continue the fight.

Sgt Swanton told reporters that off-duty officers had put themselves in "harm's 
way" and ran from nearby shops to help.

Authorities in Waco have increased security to prevent outbreaks of further 
violence. Parts of downtown were placed on lockdown on Monday, including the 
bridges crossing the Brazos River.

The rival biker gangs gathered at the Twin Peaks restaurant for a meeting about 
turf and recruitment, Sgt Swanton said. The location, off Interstate 35, also 
holds a shopping centre.

There were up to 200 gang members inside the restaurant when the violence 
erupted.

McLennan County Sheriff Parnell McNamara said all 9 people killed were members 
of the Bandidos or Cossacks gangs.

Police were aware of the meeting in advance and at least 18 Waco SWAT officers, 
as well as state troopers, were positioned outside the restaurant before the 
chaos began.

Sgt Swanton said some bikers turned their guns on the officers as the shootout 
spilled into the car park.

"Officers took fire and responded appropriately by returning fire," he said.

It was not immediately known if any of the 9 killed were shot by police.

Meanwhile, Twin Peaks has revoked the franchise rights to the Waco restaurant, 
company spokesman Rick Van Warner said on Monday.

Sgt Swanton told reporters the venue had become a regular meeting site for 
bikers since its opening last August, and that the restaurant's managers did 
not cooperate when authorities expressed concern.

The chain, a so-called "breastaurant", is known for its scantily clad 
waitresses.

Mr Van Warner said in a statement that the management team chose to ignore 
warnings and advice from the company, and did not establish the "high security 
standards" that the company requires.

(source: Sky news)

***********

Death penalty support has taken big drop in Houston, but why?



Support for the death penalty in metro Houston is at the lowest level since an 
annual survey by Rice University began asking the question in 1993. The finding 
is in the annual Kinder Survey, which polled 809 people in February and March 
of this year.

It found that support for capital punishment has declined to 56 percent this 
year, from a high of 75 % in 1993.

We've had a few interesting death penalty items in our paper the past few 
weeks. I'm thinking about the Points essay yesterday about the "demise" of the 
death penalty, and Steve Blow's recent column specifically about Texas.

My fascination is with Harris County, home to Houston, which has sent more 
people to death row than any other county. You could look it up on this here 
TDCJ link.

Or I could break it down for you in this list of inmates sent to death row 
since reinstatement in 1976:

Harris - 293

Dallas - 108

Bexar - 75

Tarrant - 72

Jefferson - 24

Nueces - 24

Smith - 23

Travis - 20

El Paso - 20

Lubbock - 20

Of the subset of those executed, Harris County is responsible for more deaths 
in Huntsville - 123 - than any other county or state in the union.

All of that makes changing Houston-area attitudes something to behold, and 
understand better.

The death-row numbers out of Harris County were driven largely by two things: 
1) Legendary DA Johnny Holmes, and 2) the high-crime 1990s.

Remember the '90s. National publications were writing about blood-splattered 
cities across the U.S. Texas was no different. Murders reached 500 on the nose 
one year in Dallas. Compare that to 116 in murders in Dallas last year.

Remember the crack wars of the 1990s - the Crips and Bloods and Jamaican gangs. 
Remember how Congress dealt with it by enhancing penalties for crack and for 
federalizing the crime of carjacking. Talk about trying to calm white people!

In Harris County, add the crime picture to the state's hardest-nose lawman, and 
it was a bonanza for death row.

Now, it appears, Harris County's support for capital punishment is nearly 20 
points below the state's, though that's hard to know, since it doesn't appear 
the same question is asked by the Rice survey and the UT/Texas Tribune survey. 
(I have other ideas on the discrepancy, but keep reading.)

Why the big drop in 20-plus years in Houston? (To be clear, the Kinder Survey 
says it polled across Harris County.)

My theory is one of encroaching doubt. Houston has had more than its share of 
high-publicity cases that raised different questions.

One was the execution of Gary Graham in 2000, with celebrities adding their 
names to a long list of people who warned about faulty eyewitness ID. The 
public has heard more and more about the proven fallibility of eyewitness ID, 
so much so that you wonder if Graham would have died on the gurney today.

Then think of Karla Faye Tucker out of Houston, she who put a pretty, white 
repentant face on things. She went to her death for a ghastly drug murder 
excited to see the Lord. Did the case cause people to doubt the value of 
retributitive justice?

Tucker's last words:

Yes sir, I would like to say to all of you - the Thornton family and Jerry 
Dean's family that I am so sorry. I hope God will give you peace with this. 
Baby, I love you. Ron, give Peggy a hug for me. Everybody has been so good to 
me. I love all of you very much. I am going to be face to face with Jesus now. 
Warden Baggett, thank all of you so much. You have been so good to me. I love 
all of you very much. I will see you all when you get there. I will wait for 
you.

Another big case was mentally ill mother Andrea Yates, who killed her 5 
children while in the grips of a post-partum break with reality. Johnny Holmes' 
successor, DA Chuck Rosenthal, sought the death penalty. A jury convicted her 
and sentenced her to life in prison.

Then the verdict was set aside on a technicality, and the state tried her a 
second time, and oops - the jury found her not guilty by reason of insanity. 
Did the Yates case make the public wonder about the flip-flopping? Did it make 
the DA's office seem particularly bloodthirsty in asking for the insane 
mother's life?

There are other things in Houston - like the scandalously shoddy work that had 
to be cleaned up in the Houston police crime lab - that cast doubt on the 
justice system.

One thing I wonder about: Where the strongholds are for capital punishment 
support in Texas. That led me to the cross tabs in the UT/Texas Tribune poll 
results, and I found this, when adding both strongly support and somewhat 
support the death penalty:

Metro Houston - 74 %

Dallas-Forth Worth area - 72 %

San Antonio area - 77 %

Austin area - 62%

Another part of Texas - 82%

Draw your own conclusions about why the UT/TT poll shows higher Houston-area 
support for the death penalty than the Kinder Survey does. One obvious place to 
start would be addition of responses from suburban counties. The UT/TT cross 
tabs show stronger support in suburban over urban areas.

(source: Rodger Jones, Opinion blog, Dallas Morning News)








NEVADA:

Lawmakers split on funding new execution chamber in Ely



Nevada lawmakers are split on whether to spend $860,000 to build a new 
execution chamber at Ely State Prison.

A joint Assembly and Senate budget subcommittee split a vote 5-5 on Monday on 
whether to recommend the construction project. The issue may be resolved at a 
Wednesday meeting.

The state's existing death chamber at the shuttered Nevada State Prison in 
Carson City is not in compliance with the Americans With Disabilities Act. 
State officials have said for about 4 years that they wouldn't be able to carry 
out an execution there.

Executions remain rare in Nevada, which has only carried out the death penalty 
12 times since 1977.

Department of Corrections officials say there are about 80 inmates on Nevada's 
death row, but the state hasn't executed anyone since 2006.

(source: Associated Press)








USA:

Unabomber's Brother Spreads Anti-Death Penalty Message in Troy After Boston 
Marathon Sentence



An outspoken critic of the death penalty visited the Capital Region area just 
days after Boston Marathon bomber Dzhokar Tsarnaev was sentenced to death.

David Kaczynski, the younger brother of the Unabomber, Ted Kaczynski, spoke at 
the La Salle Institute in Troy Monday.

Kaczynski has been an anti-death penalty activist since being named director of 
New Yorkers Against the Death Penalty in 2001.

He says he was struck because Tsarnaev's story was also a brother story, and 
while he understands the anger and the outrage, he does not think the death 
penalty is the answer.

"Life without parole as I said is a very tough sentence, it gives a person a 
lot of time to think about what they've done, perhaps experience remorse. At 
the same time it saves lots and lots of money, it relieves the victims the 
endless reliving through years of appeals," Kaczynski said.

Kaczynski spoke with the students about making ethical choices, like the one he 
says he made when he turned his brother in to authorities.

(source: Time Warner Cable News)

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

Death Penalty for Dzhokhar Tsarnaev in Anti-Execution State Brings 
Complications, Not Closure



James Rooney, president of Massachusetts Citizens Against the Death Penalty. In 
March, he helped organize a symposium on "The Tsarnaev Trial: The Federal Death 
Penalty in Abolitionist Massachusetts."

Eric Freedman, professor of constitutional law at Hofstra Law School. He has 
worked on many death penalty cases and has written extensively on capital 
punishment.

Denny LeBoeuf, director of the ACLU???s John Adams Project and former director 
of its Capital Punishment Project. She has 26 years of experience as a capital 
defense attorney.

A federal jury has sentenced 21-year-old Dzhokhar Tsarnaev to death by lethal 
injection for setting off bombs at the 2013 Boston Marathon that killed 3 and 
injured more than 260. The sentence was issued in Massachusetts, a state which 
has banned the death penalty since 1987 and has not carried out an execution 
since 1947. Polls show 85 % of Bostonians oppose the death penalty for 
Tsarnaev, as well as 80 % of Massachusetts residents. The jury in the case was 
"death-qualified," meaning each member had to be open to considering the death 
penalty, and anyone who opposed it could not serve. Tsarnaev's lawyers are now 
expected to appeal. The process could take more than a decade to finish. Since 
the federal death penalty was reinstated, just 3 federal prisoners have been 
executed, none since 2003. We host a roundtable with 3 guests: James Rooney, 
president of Massachusetts Citizens Against the Death Penalty; Eric Freedman, 
professor of constitutional law at Hofstra Law School, who has worked on many 
death penalty cases; and Denny LeBoeuf, director of the ACLU's John Adams 
Project, who has 26 years of experience as a capital defense attorney.

Transcript

AMY GOODMAN: We begin today's show in Boston, where on Friday a federal [jury] 
sentenced 21-year-old Dzhokhar Tsarnaev to death by lethal injection for 
setting off bombs at the 2013 Boston Marathon that killed 3 and injured more 
than 260. The sentence was issued in Massachusetts, a state which has banned 
the death penalty since 1987 and has not carried out an execution since 1947. 
Polls show 85 % of Bostonians oppose the death penalty for Dzhokhar Tsarnaev, 
as well as 80 % of Massachusetts residents. But the death penalty was allowed 
because it was a federal trial. In a statement, the ACLU of Massachusetts said, 
quote, "Today's verdict does not reflect the values of the majority of people 
in our Commonwealth. ... [It] is an outlier, and does not change the fact that 
Americans increasingly reject capital punishment," unquote.

During the sentencing phase of the trial, Tsarnaev's lawyers focused on 
presenting witnesses who could convince jurors he should be sentenced to life 
without parole instead of death. They argued Dzhokhar Tsarnaev was a, quote, 
"good kid" who fell under the influence of his radical older brother, Tamerlan, 
and that he is now remorseful. One of the witnesses called was Sister Helen 
Prejean, a Catholic nun whose story was told in the 1995 movie Dead Man 
Walking. She met with Tsarnaev 5 times, said he told her of the bombing 
victims: quote, "No one deserves to suffer like they did," unquote.

Ultimately, prosecutors prevailed in convincing jurors Tsarnaev should be put 
to death. After the jury deliberated for more than 15 hours and announced its 
verdict Friday, U.S. Attorney Carmen Ortiz addressed the media.

CARMEN ORTIZ: Our goal in trying this case was to ensure that the jury had all 
of the information that they needed to reach a fair and just verdict. We 
believe we accomplished that goal and that the trial of this case has shown the 
world what a fair and impartial jury trial is like. Even in the wake of horror 
and tragedy, we are not intimidated by acts of terror or radical ideals. On the 
contrary, the trial of this case has showcased an important American ideal, 
that even the worst of the worst deserve a fair trial and due process of law. 
Today, the jury has spoken, and Dzhokhar Tsarnaev will pay with his life for 
his crimes. Make no mistake: The defendant claimed to be acting on behalf of 
all Muslims; this was not a religious crime, and it certainly does not reflect 
true Muslims beliefs. It was a political crime designed to intimidate and to 
coerce the United States.

AMY GOODMAN: At least 1 of the federal jurors was reportedly in tears when the 
verdict was read. The jury was "death-qualified," meaning each member had to be 
open to considering the death penalty; anyone who opposed it could not serve. 
Tsarnaev's lawyers are now expected to appeal. The process could take more than 
a decade to finish. Since the federal death penalty was reinstated, just 3 
federal prisoners have been executed, none since 2003.

[Tsarnaev's defense attorney, Judy Clarke, has previously negotiated plea 
agreements that spared the life of her high-profile clients facing the death 
penalty in federal cases, including Jared Loughner, who killed 6 people when he 
tried to assassinate Congresswoman Gabrielle Giffords; Ted Kaczynski, known as 
the Unabomber; Eric Rudolph, charged in the Centennial Olympic Park bombing; 
and 9/11 suspect Zacarias Moussaoui.]

For more, we're joined by 3 guests. In Boston, James Rooney is with us, 
president of Massachusetts Citizens Against the Death Penalty. In March, he 
helped organize a symposium called "The Tsarnaev Trial: The Federal Death 
Penalty in Abolitionist Massachusetts." Here in New York, Eric Freedman is with 
us, professor of constitutional law at Hofstra Law School. He has worked on 
many death penalty cases. And in New Orleans, Denny LeBoeuf is with us, 
director of the ACLU's John Adams Project, former director of the Capital 
Punishment Project. She has 26 years' experience as a capital defense attorney.

We welcome you all to Democracy Now! I wanted to begin in Massachusetts, where 
the Boston Marathon was. James Rooney, you're with Massachusetts Citizens 
Against the Death Penalty, but can you explain - I think there's a lot of 
confusion around the country right now - why if in Massachusetts, where there 
is no death penalty, the death penalty was considered, and the response this 
weekend in Boston, and Massachusetts overall, to Dzhokhar Tsarnaev getting the 
death penalty?

JAMES ROONEY: Well, as you explained earlier, Amy, the - this is a federal 
case, and the federal government, because it's its own sovereign, gets to have 
its rules applied in any state, even states that don't have the death penalty, 
so that here, with a death-qualified jury, as you mentioned, you had 12 people 
from the community who said they were willing to impose the death penalty if 
the prosecution showed it.

In terms of the reaction here, I think it's somewhat of a surprise, given the 
poll numbers that you mentioned showing that so many people in this state 
oppose the death penalty, not simply generally, but in this case. So, it 
doesn't reflect community sentiment here. And it also - the jury appears to 
have acted without knowing that the family of the young boy, 8-year-old Martin 
Richard, who was killed in the bombing and whom - seems to have been the focus 
of a number of people I talked to who thought that if there was a reason to 
sentence Dzhokhar Tsarnaev to death, it was because of the killing of a young 
child. The Richard family, after the guilt version - portion of the case had 
ended, wrote a letter, which was published in The Boston Globe on the front 
page, saying that they preferred a life sentence in this case. The prosecution 
in this case emphasized its view that the victims of this crime deserved to 
have Dzhokhar Tsarnaev put to death, including the - particularly for the 
killing of this young child. And so the jury acted with that in mind, but 
without knowing that the Richard family opposed a capital sentence.

AMY GOODMAN: So, in fact, Denny LeBoeuf, the pool that was chosen, of jurors, 
can you explain how that took place? Because you're talking about choosing from 
a true minority of people in Massachusetts, if 85 % of Bostonians are against 
giving the death penalty. How many jurors came out, and what was the pool that 
was chosen from?

DENNY LEBOEUF: It's part of the unfairness of this system and the sort of 
convoluted position that the prosecutors have to put this jury in and how this 
process occurs. You have to asked the jury - it's a process called death 
qualification. You have to ask the jury, "Can you consider a death sentence?" 
And they're told, "Don't tell us how you're going to vote, but tell us that you 
can seriously make a death penalty a possibility if at the end of this process 
you've convicted him of a death-eligible offense." And having picked some 
death-qualified juries in a very Catholic city, New Orleans, you watch as you 
lose a lot of Catholics, most of your African-American and other people of 
color - you lose all the people who, even for non-religious reasons, don't have 
a strong sense that the authorities, that the government, is always right and 
always tells the truth and always gives you the straight angle on what's going 
on and what the facts are. And you're instead picking a jury from a very small, 
unrepresentative, very conservative, conviction-prone pool. And it's the 
central unfairness of this process, that couldn't be more dramatic in this 
case.

AMY GOODMAN: Is this grounds for appeal? DENNY LEBOEUF: No. I mean, it's 
certainly - I answered too fast. It's not grounds under current Eighth 
Amendment jurisprudence. It should be. It's a basic unfairness. And I think, as 
the numbers get stronger, as the United States moves closer and closer to 
abolition of the death penalty, which we will get, there may be revisiting of 
some of the decisions. We've certainly seen that in the process of fighting 
this penalty for many, many years. The court has looked at a lot of issues and 
come away with a need.

AMY GOODMAN: We're going to break and then come back to this discussion. We're 
speaking with Denny LeBoeuf in New Orleans. She is with the ACLU. In Boston, 
Massachusetts, James Rooney is with us, with Massachusetts Citizens Against the 
Death Penalty. And we'll be speaking with Eric Freedman, professor at Hofstra 
Law School, about the conviction and sentencing to death of Dzhokhar Tsarnaev, 
the 21-year-old convicted in the deaths of 3 people and the injury of over 260 
in the 2013 Boston Marathon. Stay with us.

[break]

AMY GOODMAN: We are hosting a roundtable discussion on the federal jury's 
decision in Boston to sentence Dzhokhar Tsarnaev to death by lethal injection. 
In Boston, James Rooney is with us, president of Massachusetts Citizens Against 
the Death Penalty. In March, he helped organize a symposium on "The Tsarnaev 
Trial: The Federal Death Penalty in Abolitionist Massachusetts." Here in New 
York, Eric Freedman is with us, professor of constitutional law at Hofstra Law 
School. He has worked on many death penalty cases. And in New Orleans, Denny 
LeBoeuf, who is director of the ACLU's John Adams Project, former director of 
the Capital Punishment Project. We welcome you all to Democracy Now!

Some of the survivors of the Boston Marathon bombing expressed relief at the 
verdict. This is Karen Brassard.

KAREN BRASSARD: If feels like we can take a breath and kind of actually breathe 
again. You know, without even realizing it, you're holding your breath. And 
once the verdict came in, it was like, OK, now we can start from here and go 
forward and really feel like it's behind us.

REPORTER: Are you happy with the verdict?

KAREN BRASSARD: "Happy" is not the word I would use. There is nothing happy 
about having to take somebody's life. I'm satisfied. I'm grateful that they - 
that they came to that conclusion, because, for me, I think it was the just 
conclusion. But there's nothing happy about any single bit of this situation.

AMY GOODMAN: The youngest victim of the Boston Marathon bombings was 
eight-year-old Martin Richard. His parents wrote a front-page opinion column 
for The Boston Globe last month in which they urged the federal government to 
drop its pursuit of the death penalty for Tsarnaev on the grounds that the 
appeals process would prolong their mourning. Bill and Denise Richard wrote, 
quote, "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." They conclude by saying, "We believe that 
now is the time to turn the page, end the anguish, and look toward a better 
future - for us, for Boston, and for the country." Eric Freedman, you're a 
constitutional lawyer of Hofstra Law School. Can you talk about the 
instructions to the jury?

ERIC FREEDMAN: Yes. That's not a technical problem. It builds on what Denny 
LeBoeuf was saying about the very unrepresentative nature of the jury in this 
case. In light of that, it's incredibly important for the jury to know that a 
single holdout juror can block the imposition of a death sentence and make it 
be that there will be life without any further proceedings on penalty. The 
judge was asked to instruct the jury specifically that, so that they would know 
the rules that apply, and refused. And -

AMY GOODMAN: Explain - say it again.

ERIC FREEDMAN: The rule is different at guilt and at penalty. At guilt, if 
there's a hung jury, you can, if the prosecutor wants to, retry the defendant 
on guilt and go through the whole thing all over again. And Etan Patz in New 
York has been a recent visible example. Penalty is not like that in a death 
case. If a single juror insists on life, and therefore the jury cannot 
unanimously come to death, then it's life - period, done, end of story. And 
that gives a huge incentive to a juror who's being overwhelmed by her fellows 
to hang tight, as opposed to thinking, "This is useless, because, after all, 
it's only going to be retried again, and they'll probably sentence him to death 
again. Who needs it?" If the juror knows, "I can stand firm, and there will be 
life," the juror has a lot of incentive to do that. And yet, although that is 
the rule, the judge refused to tell the jury that it was the rule, which takes 
an unrepresentative jury and has it make its decision in the dark.

AMY GOODMAN: Well, explain exactly what the judge said.

ERIC FREEDMAN: He just didn't tell them what would happen if they failed to 
agree. He said, "You need to agree," period, and left them to speculate that, 
"Oh, well, if we don't agree, eventually they'll just have to do this again." 
He just refused to give them the correct and true answer as to what would 
happen if they didn't agree, leaving them to speculate.

AMY GOODMAN: Denny LeBoeuf, can you talk more about the significance of this, 
instructing the jury what happens if they vote for the death penalty, what 
happens if they vote for life in prison, and what it means if there is a 
holdout?

DENNY LEBOEUF: [inaudible] typically tell the jury, look, the United States 
Supreme Court has said that the decision and the penalty of a capital case is a 
reasoned, moral judgment. It calls on an individual juror to examine the whole 
life - short though it's been - of the offender, as well as the circumstances 
of the crime, and to make a moral judgment based on their own morality, on 
their own perception of what is the appropriate punishment. Is this person, as 
young as he is, the worst of the worst? And what the instruction that Professor 
Freedman is talking about tells the jury is just simply the state of affairs. 
That is that if one juror, for reasons that are good to her, good, important to 
her, meaningful to her, says, "No, life in prison without probation, without 
parole, without release," that is the appropriate punishment, and if I simply 
tell, respectfully, my other jurors, "Fellow jurors, I disagree," that will be 
the sentence. And that is a matter of law, and jury instructions are supposed 
to tell the jury here's the law.

AMY GOODMAN: Was that raised with the judge? And explain how much of this trial 
was public and how much of it was sidebar. How much do you know what happened?

DENNY LEBOEUF: I really can't comment on that. I don't [inaudible] -

AMY GOODMAN: Eric Freedman, can you comment on that?

ERIC FREEDMAN: Yes. This particular issue was so important that defense lawyer 
David Bruck went out of his way in open court to repeat to the judge this 
instruction - said, "Your Honor, we reiterate our demand for this instruction," 
and he read it, in a vain effort to catch the attention of the mainstream 
press, which failed to pick up on this point. And the judge said, "I've already 
ruled on that, in chambers." We had long arguments about that, as we now know, 
away from the press and out of the public eye, in which he refused to give the 
instruction. And - but we do know, from the transcript, that - and from what 
was said in court - that the defense explicitly asked for this, and it was 
explicitly refused by the judge, on the basis of considerations which he didn't 
tell us. He just said, "What I told you in chambers."

AMY GOODMAN: Is this grounds for appeal?

ERIC FREEDMAN: Oh, there's no question that the failure to give that 
instruction, in a situation where it has been given 71 times in federal death 
penalty cases, including the only 2 others ever tried in Massachusetts, will 
certainly be made prominent in the appeal.

AMY GOODMAN: And that appeal would be of the sentence, not of the verdict?

ERIC FREEDMAN: Well, that particular aspect of the appeal will go to the 
sentence.

AMY GOODMAN: The age of Dhzokhar Tsarnaev, 21 years old now, if you, Denny 
LeBoeuf, can talk about the significance of his age when he committed this act?

DENNY LEBOEUF: Yeah, he was 19 years old. He was - he was a kid. It was a 
terrible act. But the United States Supreme Court has recognized, recently, 
when we belatedly joined the world in saying you can't execute or death 
sentence people under the age of 18 - they recognized that we've advanced in 
the neuroscience of understanding what every parent who's raised a teenager 
knows, that at some point you look at the best kids in the world and say, "What 
were you thinking?" We now know that the answer to that is "What was he 
thinking with?" And what he was thinking with was a 19-year-old brain. It is an 
undeveloped brain. It is not fully - we are not fully developed at that age. 
And you look at these actions, and you look at the horror of them and the 
terrible consequences of his act, but that's precisely one of the problems that 
kids have, is they can't gauge consequences of their act. They're not equipped 
to do that yet.

The other point about his youth is that it's very hard for those of us who have 
lived some decades on this planet to ever say that somebody as young as this 
has no redemptive possibilities, that there is no way that this person could 
never redeem himself and have a life that's worth living, even though that life 
will always be behind bars. And the Supreme Court recognized that in fairly 
recent decisions. The universal understanding of the neuroscience is that this 
kid's brain - I always look at it this way: If you compare a kid at 19 with me, 
he's got better eyes, better reflexes, better hearing, better - you know, 
everything is better about his physical being, but he can't rent a car for 
another 6 years, and I can rent one anywhere I want to, because my judgment is 
better.

AMY GOODMAN: The issue of the SAMs, if you could explain what SAMs are - 
special administrative measures - and how we come to know who Dzhokhar Tsarnaev 
is? I mean, there were a number of people who spoke in the sentencing phase - 
his teachers, people talking about his life. But for most people in this 
country, I think there's very little understanding of what was allowed to be 
said in court. The major issue in the sentencing part of this trial was whether 
he was remorseful. We only know this from 1 person, from Sister Helen Prejean, 
who said that Tsarnaev - she had met with Tsarnaev 5 times. She said they spoke 
about his crimes, as well as his victims, and that he said, quote, "No one 
deserves to suffer like they did." She said Tsarnaev lowered his eyes, his 
voice sounded pained. She said she could see the emotion in his face, and says 
she came away believing that he's, quote, "genuinely sorry for what he did." 
Talk about the significance of what was allowed to be said in open court.

DENNY LEBOEUF: Well, I think my friend Eric may be better equipped to talk 
about the legal effect of the SAMs on this trial, but I do say that, to some 
extent, the characterization of him as a terrorist and that extra designation 
is a - it's a bit of a red herring. It is not - we're very familiar, those of 
us who have been looking at capital cases for many years, with seeing our 
clients, the defendants, portrayed as some sort of monster, because you can 
kill monsters, you can kill the non-human. And terrorism is another - another 
description to throw at somebody you want to say is a monster. He's an 
extra-bad person, an extra-terrible murderer, the worst of the worst, because 
he's a terrorist. As far as the legal effects of the SAMs on this case, 
Professor Freedman may know more than I do.

AMY GOODMAN: Professor Freedman?

ERIC FREEDMAN: It is more psychological than legal. The special administrative 
measures, the SAMs, was something that was invented out of whole cloth by the 
U.S. government in the few days after 9/11, when they suddenly decided that if 
you are suspected of a terrorist offense, then attorney-client privilege is not 
for you. And as you know, subsequently, we decided, you know, 
self-incrimination rights are not for you, and many other things, if you pose a 
threat to the United States. Good old due process, which got us through the 
Revolutionary War, isn't going to make it in the new age. And that thereby 
insidiously expanded to anything that could be plausibly called terrorism, 
which is just, as Denny LeBoeuf said, another epithet to hurl at people so that 
the kabuki drama sort of reinforces itself. You produce all these guards with 
machine guns, and you make the world think the guy is very dangerous. In terms 
of what could be said at the - this, in the penalty phase of this trial, that 
is something which is now buried deep in the record on appeal. We talk about, 
well, there will be an appeal about the failure to change venue, there will be 
an appeal about the failure to give this instruction. All the other stuff that 
is buried in this record, that's going to result in a brief of over a thousand 
pages on appeal, we don't know about yet. Many of the things that the defense 
may have been complaining about that they weren't given access to put together 
that mitigation case, because they couldn't get a visa to Russia, 
hypothetically, or because other efforts were made to block evidence, almost by 
definition, we don't know about yet. We don't know because, in many cases, the 
lawyers haven't been allowed to say. And 2nd of all, it just hasn't come out 
yet. And so -

AMY GOODMAN: But - ERIC FREEDMAN: And so, it's - AMY GOODMAN: Explain the 
logic. I mean, you - the way it is argued, these special administrative 
measures, is you don't want a, quote, "terrorist" sending a message out to his 
followers. But when you're talking about the issue of whether he was remorseful 
or not, if he expressed great remorse in the defense team, were they allowed to 
convey this? And who was setting the rules? The defense team is versus the 
prosecution. Is the prosecution the ones that are trying to show that he has no 
remorse, the very ones who are setting the SAMs, saying that he cannot say 
this?

ERIC FREEDMAN: I believe, from what's now public, that the attempt to keep 
Sister Helen off the stand was maybe on a completely different set of grounds. 
We know that there was passionate, closed-door argument as to whether she could 
testify or not, but I don???t think it had anything to do with national 
security. I think the - I mean, I don't know. But it would appear that the 
judge decided, as a matter of death penalty law, that it's much more risky to 
keep the defense from putting on some testimony that they want to put on about 
remorse than to give in to whatever the prosecutor was arguing. Whether the 
prosecutor was arguing national security or whether the prosecutor was arguing 
irrelevance or hearsay, we don't know. But on that small point -

AMY GOODMAN: Which wasn't a small point. This presumably was the point the jury 
was weighing, is how much remorse he had.

ERIC FREEDMAN: Yes, OK. On that, the defense won that point, right? The defense 
- I mean, Sister Helen got to testify.

AMY GOODMAN: So - and the prosecution are the ones who were setting the rules 
on what can be said about this - ERIC FREEDMAN: No, that's really not quite 
right. The SAMs relate to access to the prison and to the prisoner and - but 
not to presentation in court -

AMY GOODMAN: And what can be conveyed.

ERIC FREEDMAN: No, in court, that's the judge's ruling. And you saw the judge 
had the final word on that.

AMY GOODMAN: Venue, finally - let's put this question to Denny LeBoeuf - the 
issue of Boston, the scene of the crime, being the venue for this trial, the 
attempt to move it out of Boston. Other venues were put forward. What about 
this? And is this grounds for appeal?

DENNY LEBOEUF: It certainly is grounds for appeal. The defense took a fairly 
extraordinary action of trying to use the mandamus process to get this in front 
of the appellate court ahead of time. It was a - observed from the outside, it 
just was an inexplicable ruling. When you combine that with sort of saying, if 
the community that suffered the greatest harm is supposed to be the community, 
for some reason, that they are going to suffer the fear of prejudice to the 
defense and to a fair trial by having it in this community, where no one was 
unaffected by the hunt for the bombers and for the ensuing lockdown of the 
whole city or by the horror of the consequences of the bombing - if you're 
going to do that, and then you turn and take a totally unrepresentative 
proportion of that community to weigh in on the conviction and the penalty, it 
stands fairness on its head. So, the people who have religious opposition to 
the death penalty - 2 million Bostonians identify themselves as Roman Catholics 
- then you should say to those people, "You get to say - we're going to have 
this trial here. You get to say whether or not you think he was guilty." And if 
the prosecution can't find 12 jurors who can examine guilt and innocence, but 
cannot consider the death penalty, then I guess they can't get a death penalty 
in this community, because this community doesn't have a death penalty. 
Massachusetts hasn't had one. So, I think that saying we're going to do it in 
Massachusetts, we're going to do it in Boston, but we're going to pick a jury 
from Boston that doesn't represent this city in any - in a very important way, 
is unfair, clearly unfair.

AMY GOODMAN: Well, we're going to leave it there. We're going to continue, as 
information comes out from what the jurors thought and what happens next, of 
course, continue to follow this case. Denny LeBoeuf, I want to thank you for 
being with us, of the ACLU John Adams Project. Thank you very much to James 
Rooney of Massachusetts Citizens Against the Death Penalty and Eric Freedman, 
professor at Hofstra Law School here in New York.

(source: Democracy Now!)