We all chose death for Dzhokhar Tsarnaev

The Boston Globe

By Nancy Gertner

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We all chose death for Dzhokhar Tsarnaev. Make no mistake about it. The death penalty law was passed in our name. Attorney General Holder and US Attorney Carmen Ortiz are employed by the government we elected. They sought death for Tsarnaev for the victims, including the Richard family, whose tragedy they highlighted, even though the Richards were opposed to Tsarnaev’s death. The government sought it for Boston — also a victim — even though the majority of the citizens of the city opposed it. The verdict in the United States v. Tsarnaev was literally brought in our name.

The result — a death verdict — was not compelled by the evidence. It never is. The option of death was chosen by the prosecutors. They could have decided not to seek the death penalty. And even after they made that choice, they could have agreed to let the defendant plead guilty to a life without parole. The option of death was chosen by a jury who had the power to be merciful. The jury is supposed to consider mitigating factors, vaguely defined. The process of weighing aggravating and mitigating factors is entirely up to these 12, and these 12 alone.

These jurors were “death-qualified,” not representative of all of Boston, not a fair cross-section of our community. Rather, they were a fair cross-section of those who believe in the death penalty, and assured the court that they could impose it.

But death qualification is part and parcel of a death penalty system, which continues in our name. One can no more serve on a jury in a drug case if you don’t believe in the drug laws than you can serve on a jury in a death-eligible case when you could never impose death.

I was death-qualified when I applied to be a judge. I have been opposed to the death penalty all of my life. But before I could take the judge’s oath I agreed — without equivocation— that if the death penalty were required in a case before me, I would impose it. While I hoped it would never happen, I was assigned a death-eligible case. That same oath obliged me to do everything I could to make sure that the process was as fair as it possibly could be. If the jury decided that the death penalty were appropriate, I would impose it. It never came to that.

There will be appeals; there must be. Why did the trial have to be in Boston? Why did it have to take place during the second anniversary of the Boston Marathon? Did the court correctly balance the prejudicial gory pictures against their probative value? Did it unfairly limit the defense case? Good lawyers — and these are the best — must raise every single issue they can to save Tsarnaev’s life.

Some have criticized the cost to taxpayers of bringing Tsarnaev’s family from Russia to testify. That was the cost of a death penalty prosecution, just like the cost of the government’s investigation, its witnesses, its evidence. We have chosen to pay it.

When Clarence Darrow defended two murderers, Nathan Leopold and Richard Loeb, he waived the jury, and argued to the judge. (That option is no longer legally available.) He feared that ordinary citizens would not have empathy for his clients, who were wealthy young men, who savagely killed an innocent man without provocation. He argued that the imposition of the death penalty made citizens no better than the killers on trial. And the judge agreed, sentencing them to life imprisonment.

What a message it would have sent — in our name — if the jury or the prosecutors had chosen life — that we are not Russia, or Saudi Arabia, or China, that we don’t kill no matter how fair the trial, that our government cannot kill in our name. Not in this case. Not ever.