Editor’s note: This article, originally published on February, 12, 2015, was updated Wednesday, April 8, after Dzhokhar Tsarnaev was found guilty on all 30 charges related to the Boston Marathon bombing and its aftermath.
Dzhokhar Tsarnaev faced 30 charges related to the Boston Marathon bombing, the killing of MIT police officer Sean Collier, and the ensuing Watertown firefight in April 2013. Where did all these charges come from? How will the death penalty be decided? And why no murder charges?
What were the charges against him?
There were essentially two large groupings within those 30 charges: those that carry the death penalty and those that don’t.
Which charges carry the possiblity of the death penalty?
In the indictment, 17 charges — counts 1 through 10 and 12 through 18 — include the possibility of the death penalty. These are all related to the planning and execution of the explosions at the Boston Marathon on April 15 and the fatal shooting of MIT police officer Sean Collier.
• Conspiracy to use a weapon of mass destruction resulting in death. The indictment states several actions taken by Tsarnaev and his brother Tamerlan prove they planned the attack ahead of time. Those actions include downloading articles from Inspire, an English-language al-Qaida magazine that explained in detail how to build pressure cooker bombs. In addition, prosecutors said the Tsarnaevs went to a gun range to practice shooting and purchased materials online that could be used to make Improvised Explosive Devices (IEDs).
• Use of a weapon of mass destruction resulting in death. Tsarnaev faced two counts of this charge, one for the bomb placed at 671 Boylston Street and one charge for the bomb placed at 755 Boylston Street.
• Possession and use of firearm during and in relation to a crime of violence resulting in death. Tsarnaev faced nine total counts of this charge. Each of the two pressure cooker explosives detonated at the Boston Marathon had three charges associated with it. In addition, Tsarnaev faced three more charges for the fatal shooting of MIT police officer Sean Collier.
It’s important to note that “firearm’’ statutes include a “variety of different escalating weaponry,’’ said Martin Weinberg, a Boston-based criminal defense lawyer. That’s why six of Tsarnaev’s firearm charges involved pressure cooker bombs while three others involved a gun.
• Conspiracy to bomb a place of public use resulting in death. This charge was based on the planning of the bombing as well as the public nature of the Boston Marathon.
• Bombing of a place of public use resulting in death. Two counts, one for each bomb detonated on Boylston Street.
• Malicious destruction of property resulting in personal injury and death. Two counts, one for each bomb. This charge specifically addressed whether or not the bombing damaged Boston Marathon property, which is used in “interstate and foreign commerce,’’ a necessary part of federal charges.
What were the other, non-death penalty charges?
Several charges involved crimes committed during the carjacking of “Danny,’’ a Chinese immigrant and entrepreneur who was held at gunpoint in his Mercedes SUV by the Tsarnaev brothers on the evening of April 18th. Other charges related to the shootout in Watertown, during which Tamerlan Tsarnaev was killed, and one police officer, Richard Donohue, was shot and injured.
Here were the 13 charges that did not have the potential of the death penalty:
• Conspiracy to maliciously destroy property resulting in personal injury and death. This was related to the planning of the bombing at the Boston Marathon.
• Carjacking resulting in serious bodily injury. Prosecutors said the Tsarnaev brothers carjacked “Danny’’ in his Mercedes SUV on Brighton Avenue and forced him at gunpoint to drive through Brighton, Watertown, and Cambridge. After a harrowing ride over 90 minutes, Danny was able to safely escape and alert police.
Authorities then tracked the SUV, which the Tsarnaevs drove through Watertown in an attempt to escape. During the ensuing car chase and shootout through Watertown, Richard Donohue was hit by a stray bullet.
The Boston Globe reported that Donohue was shot by a fellow officer during the chaos of the firefight. Still, prosecutors charged Tsarnaev with the crime because they say it occurred during the chase to subdue the Tsarnaevs.
“Even if it was friendly fire, that type of injury can be attributable to the defendant,’’ said Gerry T. Leone Jr., a former state prosecutor now working at Nixon Peabody. The defendant can be liable for injuries to others as long as the injury is part of the foreseeable “chain of events’’ of the crime, he said.
• Possession and use of a firearm during and in relation to a crime of violence. Two counts. Prosecutors said Tamerlan and Dzhokhar Tsarnaev carjacked Danny by threatening him with a gun.
• Interference with commerce by threats and violence. During the carjacking, the Tsarnaev brothers forced Danny to give them his credit card and PIN code, prosecutors said. Using that information, they withdrew $800 dollars in cash. Because these were federal charges, prosecutors argued that the credit card withdrawal interfered with interstate commerce.
• Use of a weapon of mass destruction. Four counts. Prosecutors said that during the car chase in Watertown, the Tsarnaev brothers used four IEDs in their attempt to evade police. The IEDs were three pipe bombs and one pressure cooker bomb.
• Possession and use of a firearm during and in relation to a crime of violence. Four counts, one for each of the explosives used in Watertown.
Why don’t these charges include the possibility of the death penalty?
“If it didn’t trigger death penalty, it’s usually because it’s not attributable to a death,’’ Leone said. For example, Richard Reid, the man convicted of attempting to blow up a plane with explosives hidden in his shoes, did not face the possibility of the death penalty because no one was killed.
Wait, Tsarnaev did not face a murder charge?
Not during this trial, no. Murder is a common state or local charge, but is rarely used in federal charges.
“Murder is your classic state court offense,’’ Weinberg said. “In general, you don’t have crimes of violence such as murder that are subject to federal criminal prosecution.’’
He may stand trial for murder afterward, though. Middlesex County prosecutors have filed murder charges against Tsarnaev and have said that they intend to bring him to state court after his federal trial.
Why wasn’t there a plea deal?
It’s unclear, though there are two possible explanations. One is that prosecutors did not offer a plea deal, because they believed they have a no-lose case. Another possible explanation is that Tsarnaev did not authorize his defense attorneys to seek a plea deal.
“We can’t and likely won’t know,’’ Leone said.
What happens now that Tsarnaev has been found guilty of all the death-penalty charges?
The trial now moves to what is called the death penalty phase. The same jurors stay on.
How does the death penalty phase of the trial work?
The penalty phase is essentially its own trial, with another series of arguments from prosecutors and rebuttals from the defense. The prosecution begins by presenting any “aggravating factors’’ that attempt to justify the use of the death penalty. The defense rebuts with its own “mitigating factors’’ that argue the death penalty is not justified.
What aggravating factors will the prosecution argue?
In the Justice Department’s notice that it would seek capital punishment, prosecutors listed and explained the aggravating factors that they would attempt to prove during the death penalty phase. These factors, which are detailed in U.S. Code Chapter 228, revolve around a few key points:
• The damage and harm of the bombings: “Death during commission of another crime,’’ “grave risk of death to additional persons,’’ and “multiple killings’’ are all potential aggravating factors, according to U.S. code.
• The victims’ status: Martin Richard’s young age and MIT officer Sean Collier’s law enforcement job make their deaths more relevant to a death penalty justification.
• The nature of the crimes and Tsarnaev’s response: “Heinous, cruel and depraved manner,’’ “lack of remorse,’’ the Boston Marathon’s “iconic’’ status, and “betrayal of the U.S.’’ all can be argued as aggravating factors, according to U.S. code.
What mitigating factors will the defense argue?
The defense doesn’t have to provide a public notice of what it will argue, but here are some possibilities:
• Family background: Defense attorney Judy Clarke is widely known for defending high-profile criminals by digging into their troubled family history. Tsarnaev’s attorneys appear to be deeply looking into Tsarnaev’s family, including the negative influence of his older brother Tamerlan, who has often been described as the brains of the operation. They could argue Dzhokhar acted out of duress under threats from his older brother.
• Impaired capacity: Dzhokhar Tsarnaev was a heavy marijuana user and also sold drugs as a student at UMass-Dartmouth, according to The Boston Globe.
• Criminal record: Or lack thereof. Tsarnaev had no criminal record.
• Age: Tsarnaev was 19 years old at the time he committed these crimes. Attorneys could attempt to argue that his teenage brain was not fully aware of, or able to, understand the potential consequences of his actions.
Mitigating factors only need to be proved by a preponerance of the evidence, a lower standard of proof than the prosecution’s requirement of “beyond a reasonable doubt.’’
How does the jury weigh aggravating factors against mitigating factors?
The decision does not come down to counting the number of aggravating factors versus the number of mitigating factors. “It’s a qualitative assessment, so that it’s not a formulaic scorecard,’’ Leone said.
Victim impact statements come next.
This is the part of the trial that is likely to be the most emotional. Victims of the crimes would come to court and read messages or present testimony about the impact crime has had on their lives. In this case, that could include amputees, those suffering psychological injuries from the bombings, and the families of the deceased.
How does the jury decide?
For Tsarnaev to receive the death penalty, the jury must be unanimous in its decision. If they are not unanimous in their support of the death penalty, the Tsarnaev will receive life in prison.
The Dzhokhar Tsarnaev trial in courtroom sketches