Why the Jury Chose Death for Tsarnaev, Despite Massachusetts’ Desire for Mercy

The looks on the jurors’ faces told me they wanted Dzhokhar Tsarnaev to die. One juror, her eyes red, shook her head slowly, in anger. Another, fighting tears, exhaled as if to purge her feelings. One juror touched another on the shoulder to comfort her.

They’d just heard prosecutor Nadine Pellegrini’s opening arguments in the penalty phase of the Boston Marathon bombing trial—an account of beloved young people blown apart and their families’ never-ending grief, versus a portrayal of Tsarnaev as a petulant, remorseless killer. The juror who’d shaken her head looked straight at me, sitting in the press box, as if I represented the world awaiting her life-or-death decision. She seemed almost overwhelmed, fully aware of the gravity, but determined.

Today, three weeks later, she and 11 other jurors sent Tsarnaev to face a lethal injection. The marathon bomber’s defense failed. Only three jurors agreed that Tsarnaev wouldn’t have killed if not for his older brother. Only two found him remorseful, despite Sister Helen Prejean’s testimony this week.

Tsarnaev’s death sentence comes against the wishes of most of Massachusetts. Less than half of the state supports the death penalty for Tsarnaev or anyone else, polls show—and opposition to executing him actually grew during the trial. Many Bostonians felt the city could heal and move on with a simple guilty verdict and eternity in prison. Bill and Denise Richard, parents of Tsarnaev’s 8-year-old victim, Martin Richard, felt that way (a fact the jurors didn’t know).

But because terrorism—killing with a weapon of mass destruction—is a federal crime, Massachusetts did not get to say, “don’t kill for me.” A capital-punishment jury has to be “death-qualified,” so all the jurors came from the minority in Eastern Massachusetts who are open to the death penalty.

Once the jurors said they’d consider death in some cases, the trial made it very hard for them to say they wouldn’t support it in this case. Nothing in the two weeks of defense witness’ testimony came close to the emotional impact of the testimony about the bombing itself. The jury heard from mourning family members and survivors who’d feared death, and saw photos of bleeding victims, including a man with a bare bone where his leg had been.

Some commentators will be shocked that Judy Clarke, America’s most renowned anti-death-penalty lawyer, didn’t convince a single juror to spare Tsarnaev. Clarke had developed such a mystique, many seemed to think she could talk any jury into sparing any killer. Her record was overhyped. Few of her victories for famous clients (the Unabomber, the Atlanta Olympics bomber) have come before juries. Usually, she convinces prosecutors to accept plea deals. This time, the government refused.

But Clarke also didn’t have much to work with this time. Dzhokhar Tsarnaev’s very normalcy made him hard to defend. The 21-year-old, just 19 when he bombed the marathon, had no criminal record, but he also had no history of abuse or mental illness. That made it harder to generate sympathy for him than, say, for a killer who was tortured as a kid. Clarke’s arguments were eloquent appeals to conscience, but the defense witnesses were underwhelming.

The usual death-penalty mitigation strategy of telling the defendant’s life story and family history may have backfired. Testimony from Tsarnaev’s loving teachers and female friends about his gentle ways as a teen, meant to humanize him, may have offended the jury, as it offended some reporters covering the trial. Really, all the defense could offer to try to explain why a sweet kid became a terrorist killer were Tsarnaev’s crazy parents and domineering older brother. The prosecution’s simple argument that Tsarnaev was responsible for his own decisions may have been enough to counter that.

Even Sister Helen Prejean’s late-breaking testimony didn’t save Tsarnaev, because the regret she elicited from him, that “no one deserves to suffer like they did,” was just vague enough to be open to interpretation. Does he regret the bombing? Or might he see his victims as collateral damage in his retaliation against America’s wars? The judge told jurors they couldn’t consider the defendant’s appearance or demeanor—but doing so may have just been human nature. For two and a half months, he sat in their line of sight, refusing to look at his victims as they testified a few feet away.

Death-penalty supporters will say that after all the jurors heard, we should defer to their judgment. Opponents will say their ordeal wasn’t necessary, that a plea agreement sparing Tsarnaev’s life would’ve given Boston a more lasting, peaceful closure. Instead, Americans’ support for the death penalty, and the nation’s politics of crime and the war on terror, trumped most Bostonians’ desire to end the story of the bombings without more death. But whether Tsarnaev is executed in prison years from now or he’s spared on appeal, the trial’s end means Boston can finally move on without him.