Plan B Forum

Posted: **Tue Apr 07, 2015 8:58 pm**

Juries in both the Boston bombing case and the Aaron Hernandez murder case were given the matters for deliberation earlier today. Both juries began deliberations and neither reached a verdict tonight, so they will be back at it again tomorrow.

It's been an interesting time for those of us who watch these events, and to have both juries working at the same time is quite amazing.

In both instances the prosecution put on many witnesses, the defense put on few, and neither defendant testified.

If there is a guilty verdict in the Tsarnaev case, it moves on to the penalty phase to determine if he will face life in prison or the death penalty. The defense is expected to put on much more evidence in that phase, focusing on the role his brother (Tamerlan) had as the mastermind, and in controlling Dzohkhar's actions. Hernandez does not face the death penalty, but will go on trial again for a Boston double murder, once this case is resolved.

The Hernandez case is certainly shakier than the Tsarnaev case, but I don't know if its think enough to end up with an acquittal. I'd be shocked if Tsarnaev wasn't convicted, but don't think he will end up with the death penalty.

Posted: **Wed Apr 08, 2015 1:03 am**

I'm betting that Tsarnaev is convicted and gets the DP. That jury was carefully vetted to exclude people who are in principle opposed to the DP. I can't see anyone who thinks it is sometimes justified finding some reason not to apply it here.

yrs,
rubato

Posted: **Wed Apr 08, 2015 1:21 am**

I can't see anyone who thinks it is sometimes justified finding some reason not to apply it here.

I can easily see that happening in a case like this, and I agree with Guin; I'll be surprised if he gets the death penalty...

All the defense needs is one single juror who will buy the Lee Boyd Malvo-type "victim of a Svengali" defense (that his lawyers have quite understandably crafted) to the extent that they believe Dry Dock's culpability is sufficiently lessened to justify life in prison rather than the DP...

It's not a really high bar if they are skillful about it...

Malvo (The younger of the "Beltway Snipers") was tried in front of a death penalty qualified jury in Virginia, and got life rather than the DP...

It's far from as easy an argument as it was in that case, (Dry Dock lived much more independently of his brother than Malvo did of John Allen Muhammad) but I think the odds are pretty good, given the skill and experience of his legal team, which is lead by Judy Clarke (if I was in his shoes I can't think of anyone I'd more want in charge of my defense):

Judy Clare Clarke (is an American criminal defense attorney who has represented several high-profile defendants. She has negotiated plea agreements that spare her clients the death penalty, as was the case for Eric Rudolph, Ted Kaczynski, and Jared Lee Loughner. In the case of Susan Smith, Clarke argued to the jury that ultimately voted against imposing the death penalty.

http://en.wikipedia.org/wiki/Judy_Clarke

Posted: **Wed Apr 08, 2015 4:04 am**

The situation of Malvo was very different. There is no real parallel here.

Yrs,
Rubato

Posted: **Wed Apr 08, 2015 8:36 am**

Excellent analysis of the Hernandez closing and jury instructions by my friend Michael McCann - who I note declines to make any prediction. This is going to be the tough one.

http://www.si.com/nfl/2015/04/07/aaron- ... rdict-jury

Posted: **Wed Apr 08, 2015 8:39 am**

rubato wrote:I'm betting that Tsarnaev is convicted and gets the DP. That jury was carefully vetted to exclude people who are in principle opposed to the DP. I can't see anyone who thinks it is sometimes justified finding some reason not to apply it here.

yrs,
rubato

That isn't how the jury was vetted - it excluded people who are both categorically opposed to the death penalty and those who believe it's always appropriate in murder cases. According to the notes I read, most of the jurors were open minded on the issue or didn't have an overriding belief.

This is still Massachusetts. I don't think he is going to die. After reading a bit about the testimony and evidence, I still don't think he should die. LWOP is perfectly appropriate.

Posted: **Wed Apr 08, 2015 1:47 pm**

Guinevere wrote:
rubato wrote:I'm betting that Tsarnaev is convicted and gets the DP. That jury was carefully vetted to exclude people who are in principle opposed to the DP. I can't see anyone who thinks it is sometimes justified finding some reason not to apply it here.

yrs,
rubato

That isn't how the jury was vetted - it excluded people who are both categorically opposed to the death penalty and those who believe it's always appropriate in murder cases. According to the notes I read, most of the jurors were open minded on the issue or didn't have an overriding belief.

This is still Massachusetts. I don't think he is going to die. After reading a bit about the testimony and evidence, I still don't think he should die. LWOP is perfectly appropriate.

" ... it excluded people who are both categorically opposed to the death penalty ... "

Right, that is what I said. Unless you are categorically against the DP the facts of this case are very clear: Long planning and deliberate action leading to multiple deaths and a huge number of horrific injuries. All of the outcome was planned and desired and the scale of harm was as great as they could make it. There just aren't the kind of practical barriers which might mitigate the degree of evil. They didn't set a fire and have it go out of control, they weren't just angry or afraid in the moment, there was no evidence of special domination, he was not mentally defective.

There is none of the type of evidence of mental domination which there was in the Malvo case (25 year age difference, Muhammad had acted as a 'father' to him since he was 14, Malvo was homeless and destitute, an illegal alien whose mother had been deported, Malvo was still a teenager).

Personally I would prefer LWOP (and would have in the McVeigh case as well) but I'd call it 90:10 they ring him up for it.

yrs,
rubato

Posted: **Wed Apr 08, 2015 4:49 pm**

LWOP is to be preferred always. Aside from the questionable morality of killing under any circumstance, it's a lot cheaper for the state to just bang him up until he dies anyway. Death sentence appeals are far costlier.

Posted: **Wed Apr 08, 2015 5:37 pm**

Verdict in the Tsarnaev case -- court will reconvene at 1:45 PM EDT.

30 counts, 17 of which are death penalty eligible.

ETA: Family and lawyers and public still filing into courtroom, then defendant, judge, jury. No cameras allowed in federal courts, so we won't get to hear it being read.

Posted: **Wed Apr 08, 2015 6:19 pm**

Count 1 - conspiracy to use a weapon of mass destruction, and causal connection to deaths of all 4 victims -- guilty/ 4 yesses.

Count 2 - use of a weapon of mass destruction/causal connection to 4 deaths - guilty/4 yesses.

Count 3 - use of a firearm, in crime, resulting in violence and death, aiding and abetting - guilty

Count 4 -Use of a weapon of mass destruction resulting in death, aiding and abetting - guilty

Count 5 - Use of a firearm during use of weapon of mass destruction - guilty

Count 6 - Conspiracy to bomb a place of public use resulting in death - guilty

Count 7 - Bombing of a place of public use resulting in death, aiding and abetting - guilty

Count 8 - Use of a firearm during bombing of public place - guilty

Count 9 - Bombing of place of public use resulting in death, aidingand abetting - guilty

Count 10 -Possession and use of a firearm during and in relation to crim of violence resulting in death, aiding and abetting - guilty

More later . . .

Posted: **Wed Apr 08, 2015 6:38 pm**

Guilty on all 30 counts, yes to all questions within the counts, so he is found responsible for all deaths and injuries specified in the counts.

Judge instructing the jury now about how to conduct themselves as the penalty phase begins - which will begin next week.

Posted: **Wed Apr 08, 2015 6:50 pm**

The system, when it works.

Posted: **Thu Apr 09, 2015 12:26 am**

17 death penalty counts, 17 chances to win the big prize!

yrs,
rubato

Posted: **Thu Apr 09, 2015 12:50 pm**

Yes, but he only needs one out of 12 to avoid it...

I will say though that I believe the odds on him getting the DP have gone up, (though I still believe it the less likely outcome) particularly with his conviction on the conspiracy charges. That seems to indicates that the jury sees him as a participant in the planning which goes to the defense argument that he was just a dominated and manipulated follower. Ms. Clarke has her work cut out for in the sentencing phase, to try and somehow mitigate his role but she still only needs to convince one juror....

The other reason I think the the odds of a DP decision have gone up, (which is fine with me; personally I certainly believe he deserves and should receive the DP) is that I assumed that Dry Dock would cut a fairly sympathetic figure in the court room, but all the reports have been that this has not been the case.

Posted: **Thu Apr 09, 2015 1:23 pm**

He needs 1 who can resist the social pressure to conform with 11 others, 17 times. And 1 who is not dead-set opposed to the DP in all cases (which were screened out). 1 who can explain why the circumstances in this particular case are -not- sufficiently damning and heinous to require a penalty they admit is required for justice in some cases. I don't think 1 can do it. If the jury hangs on the DP and applies it in no cases I think it has to be more than 1 and they'll have to come up with a reason which is not obvious.

And what argument will they make? Only serial killers should get it? Only mass killers who kill more than 30? Only people kill with their hands?

Mind you, I'd be happier if they don't execute him because state-killing is barbaric and of no benefit, but I think the odds are against my preferred outcome.

yrs,
rubato

Posted: **Thu Apr 09, 2015 2:56 pm**

Generally, "death juries" only actually sentence a defendant to death one out of three times. That gives Tsarnaev decent odds -- although it seems clear this jury isn't all that enamored of him. They also have only seen a glimpse of the mitigation case. There will be lots and lots more evidence put on (an estimates 2 additional weeks of testimony, so for this case, where everything has taken longer, add 50% to that), and as stated above, only has to convince one juror to get LWOP.

Posted: **Thu Apr 09, 2015 5:19 pm**

Rubato--I can check Massachusetts law (or Guin you can weigh in), but my understanding is that the verdict of death must be the unanimous verdict of all the jurors. If one holds out all he has to do is vote "No"; (s)he will not be required to explain to anyone (including his/her fellow jurors if that is what (s)he chooses) why the DP is inappropriate here--only that (s)he does not believe that it is. Indeed, I don't find it hard to believe one person could well do that.

Yes, the jury was screened for those who identified themselves as absolutely opposed to the DP, as it should be (indeed, I would never want to serve on a DP case for just that reason), but among those left there is likely to be a big spread of belief when it is appropriate, and some might well see a crime like this, while heinous, is not sufficiently heinous to demand the ultimate penalty. Some might believe it only appropriate give it to killers of young children who also torture them, others to serial killers, etc. It is quite possible only a single person could prevent the DP from being applied.

Posted: **Fri Apr 10, 2015 1:22 pm**

Big RR wrote:Rubato--I can check Massachusetts law (or Guin you can weigh in), but my understanding is that the verdict of death must be the unanimous verdict of all the jurors. If one holds out all he has to do is vote "No"; (s)he will not be required to explain to anyone (including his/her fellow jurors if that is what (s)he chooses) why the DP is inappropriate here--only that (s)he does not believe that it is. Indeed, I don't find it hard to believe one person could well do that.

Yes, the jury was screened for those who identified themselves as absolutely opposed to the DP, as it should be (indeed, I would never want to serve on a DP case for just that reason), but among those left there is likely to be a big spread of belief when it is appropriate, and some might well see a crime like this, while heinous, is not sufficiently heinous to demand the ultimate penalty. Some might believe it only appropriate give it to killers of young children who also torture them, others to serial killers, etc. It is quite possible only a single person could prevent the DP from being applied.

When the jury votes and fails to find agreement they continue to discuss, the dissenters will be asked to explain themselves. Even if they use a secret ballot the jury will have to continue to deliberate.

yrs,
rubato

Posted: **Fri Apr 10, 2015 1:25 pm**

Guinevere wrote:Generally, "death juries" only actually sentence a defendant to death one out of three times. That gives Tsarnaev decent odds -- ... " .

A statistical estimate makes sense only if it is reasonable to equate this with the number of individual murders committed while drunk, angry &c.

yrs,
rubato

Posted: **Fri Apr 10, 2015 3:08 pm**

I have to agree with rube about applying statistical probability here; the nature of the facts in this case make it such an outlier vis-à-vis typical DP cases that I wouldn't make much of that...

With 12 jurors and so many DP charges to decide on, this case has an enormous number of possible scenarios involved. Here's the list of DP eligible charges he was convicted of:

COUNT 1 — GUILTY
Conspiracy to use a weapon of mass destruction, resulting in death
*Death penalty charge

COUNT 2 — GUILTY
Use of a weapon of mass destruction (Pressure Cooker Bomb #1), resulting in death; and aiding and abetting
*Death penalty charge

COUNT 3 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #1) during and in relation to a crime of violence, resulting in death; and aiding and abetting
*Death penalty charge

COUNT 4 — GUILTY
Use of a weapon of mass destruction (Pressure Cooker Bomb #2), resulting in death; and aiding and abetting
*Death penalty charge

COUNT 5 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #2) during and in relation to a crime of violence, resulting in death; and aiding and abetting
*Death penalty charge

COUNT 6 — GUILTY
Conspiracy to bomb a place of public use, resulting in death
*Death penalty charge

COUNT 7 — GUILTY
Bombing of a place of public use (Pressure Cooker Bomb #1), resulting in death; aiding and abetting
*Death penalty charge

COUNT 8 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #1) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 9 — GUILTY
Bombing of a place of public use (Pressure Cooker Bomb #2), resulting in death; aiding and abetting
*Death penalty charge

COUNT 10 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #2) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 12 — GUILTY
Malicious destruction of property by means of an explosive (Pressure Cooker Bomb #1), resulting in death; aiding and abetting
*Death penalty charge

COUNT 13 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #1) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 14 — GUILTY
Malicious destruction of property by means of an explosive (Pressure Cooker Bomb #2), resulting in death; aiding and abetting
*Death penalty charge

COUNT 15 — GUILTY
Possession and use of a firearm (Pressure Cooker Bomb #2) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 16 — GUILTY
Possession and use of a firearm (Ruger P95 9mm semiautomatic handgun) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 17 — GUILTY
Possession and use of a firearm (Ruger P95 9mm semiautomatic handgun) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

COUNT 18 — GUILTY
Possession and use of a firearm (Ruger P95 9mm semiautomatic handgun) during and in relation to a crime of violence, resulting in death; aiding and abetting
*Death penalty charge

https://www.wbur.org/2015/01/05/dzhokha ... ev-charges

To give just one example:

One highly plausible scenario is that you could have a juror or jurors who after the penalty phase felt the defense had done a good enough job mitigating Dry Dock's role in the planning of the attack that they vote against the DP for counts 1 and 6.

And then maybe additionally they decide that they don't think he should get the DP for the charges related to the bomb he didn't personally place. (that eliminates almost half of the remaining counts, because the charges basically duplicate for each bomb)

And then maybe they also decide to vote against the DP on the charges related to the gun because he didn't actually use it.

That same juror could then turn around and vote in favor of imposing the DP for the deaths caused by the bomb he did place.

That would be one (of many) perfectly logical and morally consistent decisions a juror could reach.

It's also possible with so many charges, that every juror could vote for the DP for at least one charge, but that there is no single charge that all 12 voted for. (Though I strongly suspect that if the jury found itself in that situation, they would deliberate further to see if they could find at least one charge that they could all agree on.)

There are many logical scenarios one can envision; it will be interesting to see how it turns out. (And I'm sure after the trial there will be more than one juror going public with how they reached their final decisions.)

Plan B Forum

With all deliberate speed

With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed

Re: With all deliberate speed