By Richard A. Serrano and Alana Semuels
9:57 PM EST, January 30, 2014
WASHINGTON — Federal prosecutors will seek the death penalty for Dzhokhar Tsarnaev in last year's Boston Marathon bombing, saying in court papers that the deadly plot was committed in an "especially heinous, cruel and depraved manner."
Atty. Gen. Eric H. Holder Jr.'s decision, announced Thursday, marks the first time the Obama administration will attempt to execute an accused terrorist in a federal court case. But whether the 20-year-old immigrant will be sentenced to death will be subject to an intense legal fight.
Tsarnaev's defense attorneys will argue for leniency, portraying him as a confused young man under the spell of his more militant older brother, who was killed in a police shootout. The case is being handled in Massachusetts, where capital punishment is unpopular and no one has been put to death in more than 65 years. A plea agreement could be reached in exchange for dropping the death penalty, as has occurred in past cases.
But citing Tsarnaev's "lack of remorse," the Justice Department said it planned to proceed on behalf of the three people killed and 264 others injured on April 15 by a pair of pipe bombs hidden in backpacks near the marathon finish line.
"The nature of the conduct at issue and the resultant harm compel this decision," Holder said in a short statement.
Boston U.S. Atty. Carmen M. Ortiz expressed support for the decision in a court filing. She cited the "substantial planning and premeditation" in the attacks and multiple deaths, including 8-year-old Martin Richard, a particularly "vulnerable victim."
Further, prosecutors said Tsarnaev, a Kyrgyzstan native who was largely raised in the Boston area, carried out a "betrayal of the United States."
"Dzhokhar Tsarnaev received asylum from the United States," the government said, "obtained citizenship and enjoyed the freedoms of a United States citizen, and then betrayed his allegiance to the United States by killing and maiming people."
The decision could be risky: Boston is a largely liberal community and Massachusetts' last execution came in 1947, when two gangsters went to the electric chair for killing a former U.S. Marine. Just this month, the Boston Bar Assn. issued a statement opposing the death penalty in all future federal cases.
One of Tsarnaev's defense attorneys, Judy Clarke of San Diego, has maneuvered several high-profile death penalty cases into guilty pleas that spared her clients' lives. Her clients have included the "Unabomber," Ted Kaczynski, and the 1996 Atlanta Olympics bomber, Eric Rudolph.
She also helped represent Zacarias Moussaoui, a self-styled would-be 20th hijacker who tried to join the Sept. 11 plot. A federal jury in Alexandria, Va., gave him life with no parole in 2006 after a defense expert testified that a death sentence would make him a martyr and encourage others to embrace terrorism.
The last terrorist to be executed in the U.S. was Timothy J. McVeigh, the 1995 Oklahoma City bomber, who was put to death exactly three months before the Sept. 11 attacks.
Stephen Jones, the Oklahoma attorney who defended McVeigh, said in an interview that in Tsarnaev's attempt to avoid the death penalty, "the advantage stands with the defense." In addition to the Boston sentiments against capital punishment, lethal executions are decreasing around the country. He noted that in the 2002 case of the Washington, D.C., snipers, the older man was executed while his much younger accomplice drew life in prison.
"The circumstances of that family are not much different than the Tsarnaevs," Jones said, noting that the elder brother, Tamerlan Tsarnaev, 26, appeared to be the driving force behind the Boston plot. "You can work some significant advantage with that. The defense has some cards to play."
Mark Pearlstein, a former assistant U.S. attorney in Boston, conceded that a death conviction "will be a challenge for prosecutors." Jury selection will be key, he said, because a single holdout among the 12-member panel could nix a death sentence, which must be unanimous.
But, Pearlstein said in an interview, "there will be a very significant focus on the victims and the fact that they are truly innocents."
Holder's announcement drew mixed reaction from victims.
Both of Liz Norden's adult sons lost a leg, and they do not speak much about the Tsarnaev brothers. But she is glad Holder is seeking a death penalty. "I'm all for it," said Norden of Stoneham, Mass. "If other people see that the death penalty is on it, maybe this won't happen again."
Jarrod Clowery of Stoneham, who was hospitalized with shrapnel in his legs after the attack, said he was relieved he would not have to decide Tsarnaev's fate. "Those guys were tried and convicted by a power higher than all of us," he said.
Gov. Deval Patrick of Massachusetts, a former high-ranking Justice Department official, expressed confidence that Tsarnaev would face justice: "One way or another, based on the evidence, Tsarnaev will die in prison."
Serrano reported from Washington and Semuels from New York.
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