A Tale of Two Terrorists: Both Convicted, One Condemned to Die

05/18/2015 05:16 pm ET | Updated May 18, 2016

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On Friday afternoon, after deliberating for a total of 14 hours over parts of three days, a jury of 12 Boston-area residents answered the question that I raised in my last Truthdig column about the 21-year-old convicted Boston Marathon bomber: Should we kill Dzhokhar Tsarnaev?

The jury's answer, delivered in a 24-page verdict, was a unanimous "yes." Tsarnaev, sayeth the jury, should pay the ultimate price. The reading of the verdict completed the penalty-phase of the high-profile federal trial.

The horrific acts for which Tsarnaev was convicted last month -- by the very same jury -- included killing three people near the finish line of the 2013 marathon, maiming and injuring 260 others and fatally shooting a Massachusetts Institute of Technology campus police officer as he and his older brother, Tamerlan, attempted to elude authorities. His 30-count indictment also listed charges of using weapons of mass destruction (specifically, pressure-cooker explosives) resulting in death; bombing a public place; conspiracy; and carjacking.

In January 2014, former Attorney General Eric Holder announced that the Department of Justice would seek the death penalty, which is legally authorized for 17 of the charges. Tsarnaev was convicted on all counts after being called a terrorist more than 30 times in the lead prosecutor's closing argument.

When I learned via an iPhone alert that a verdict had been reached, I hastily tuned to "CNN Newsroom," anchored by Brooke Baldwin.

It took a good five to 10 minutes, maybe more -- it seemed a short eternity -- for the first reports of the multipart verdict to appear on the crawl at the bottom of the screen. Baldwin filled the delay with reflections on the carnage wrought by the Tsarnaev siblings, discussion of the allegedly unrepentant defiance of authority that Dzhokhar showed by flipping his middle finger at a jail-cell camera and standard platitudes about how the death penalty is reserved for "the worst of the worst" crimes.

Baldwin returned to the same themes after the verdict was announced, emphasizing the last point -- that under our legal system, only the most egregious offenders who have committed the most heinous offenses receive a death sentence. The message was unambiguous: A fair trial had resulted in a rational outcome.

Except that it hadn't.

Imposing the death penalty on Tsarnaev isn't rational, not because his jury didn't pay attention to the evidence or didn't listen carefully to the judge's instructions on the law, but because the penalty itself isn't rational.

I turned off the TV and, with Baldwin's comments in mind, thought of Zacarias Moussaoui, the Moroccan-born French national and self-declared al-Qaida zealot who pleaded guilty in 2005 to six charges of conspiracy in the attacks of September 11, 2o01.

The following year, a federal jury not unlike Tsarnaev's was faced with the same option of sentencing Moussaoui to death or to life in prison without the possibility of parole. Despite specifically and unanimously finding in its own lengthy verdict that the government had proved beyond a reasonable doubt that Moussaoui's actions were "intended to cause and, in fact did cause tremendous disruption" to New York City, including the killing of 343 members of the New York City Fire Department, Moussaoui's jury declined to impose capital punishment.

Today, Moussaoui is housed in solitary confinement at the ADX Supermax prison in Florence, Colo., along with other terrorists such as the Unabomber, Ted Kaczynski and the Atlanta Olympics bomber, Eric Rudolph. Unlike Tsarnaev, however, Moussaoui and his fellow inmates at ADX have been shown mercy.

Because I have served as an attorney of record in six death penalty cases, I know full well that every prosecution is different. Kaczynski and Rudolph, who like Tsarnaev were represented by attorney Judy Clarke, pleaded guilty and never went to trial or came before a jury. By contrast, federal prosecutors refused to negotiate a plea bargain for Tsarnaev. He was forced to stand trial, although Clarke and her colleagues acknowledged from the outset that he had committed the Boston Marathon attacks.

Moussaoui, for his part, wasn't aboard the two hijacked airplanes that crashed into the twin towers on 9/11 and thus lacked the kind of hands-on involvement in those crimes that Tsarnaev had in his own. But the events of 9/11 caused far more death and destruction than Tsarnaev did, and Moussaoui was far more defiant than Tsarnaev, and was often verbally offensive in court.

Timothy McVeigh, on the other hand, was convicted, sentenced to death and executed for the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people and injured more than 800 others. McVeigh is one of only three condemned federal prisoners who have been killed since the restoration of the federal death penalty. Of the 230 cases, including Tsarnaev's, tried under the Federal Death Penalty Act of 1994 and its 1988 predecessor, juries have handed down just 80 death sentences, the vast majority of which remain on appeal.

All of these cases involved different facts, different perpetrators and different victims, but all were deemed morally equivalent by government lawyers who argued passionately for capital punishment.

How then can we reconcile the wildly disparate and seemingly arbitrary outcomes in such cases? How can we be sure that the ultimate punishment is reserved only for the "worst of the worst?"

Under the rules of "guided discretion" -- the name given to the version of capital punishment that the Supreme Court's 1976 decision in Gregg v. Georgia ruled constitutional -- juries in capital murder cases are given the task of balancing and weighing aggravating and mitigating factors relating to the charged offense, as well as the defendant's background and character, to determine who among those convicted defendants should be given a prison term and who should be condemned to die. The system is designed to be rational and fair and to minimize the impact of emotion and bias in sentencing. It's also supposed to further the aims of retribution and deterrence of other would-be malefactors.

Except that the system isn't rational; it isn't fair; and no one except tough-talking politicians claims the death penalty has any significant deterrent effects.

Had Tsarnaev's jury returned a verdict of life in prison, he would be on his way to perpetual obscurity at ADX. Instead, he's looking at decades of appeals at public expense that will challenge rulings made by the trial judge on issues ranging from the denial of defense motions for a change of venue out of Boston to the way his jury was selected. Each of Tsarnaev's juror's had been deemed during voir dire to be "death-qualified," meaning that unlike the general Boston population, which is strongly opposed to capital punishment, the jurors were willing to impose it.

And even after his appeals are exhausted, a new set of lawyers are likely to pursue writs of habeas corpus on his behalf, calling into question the competence of tactical decisions made by his trial attorneys, or perhaps offering newly discovered mitigating evidence about his family history from Chechnya or Kyrgyzstan.

Through it all, Tsarnaev will remain in the limelight. The surviving victims of his crimes will find little closure as death penalty opponents track the progress of his appeals, rail against the barbarity of capital punishment and writers like Yours truly pound away on their keyboards to tell and retell his story.