Faculty Notes Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights

Published on April 21, 2015 | by LawNews

Prof. Eric M. Freedman Comments in Boston Globe Story on Penalty Phase of Marathon Bombing Case

With Tsarnaev penalty phase set, outcome uncertain
Capital sentences rarely imposed in US cases, but terrorism sets Marathon bombings apart
By Milton J. Valencia and Patricia Wen
The Boston Globe
April 20, 2015


In Tsarnaev’s case, his lawyers have acknowledged that he participated in the bombings as well as the fatal shooting of an MIT police officer, but they called his older brother, Tamerlan, the mastermind. Tamerlan was killed during a violent confrontation with police in Watertown while attempting to flee.

The lawyers’ focused on Tamerlan Tsarnaev’s guilt and influence throughout Dzhokhar Tsarnaev’s trial, and they plan to argue during the sentencing phase that the younger brother’s life should be spared because of his difficult childhood and submission to his older brother, among other reasons. The sentencing phase is expected to last about four weeks.

A jury would have to be unanimous in choosing death, and a judge would hand out a life sentence if the jury were unable to reach a unanimous decision.

Eric M. Freedman, a law professor at Hofstra University School of Law who studies capital punishment cases, said there is no winning formula, for prosecutors or defense lawyers, in succeeding in a capital case, noting the inconsistency of jury verdicts nationwide.

But, he said, a review of hundreds of cases decided by state and federal juries shows that lawyers have been successful when they are able to present a consistent storyline to make their case, no matter the storyline or the crime. “What the defense lawyers want to do is make sure they present the life story of the person, rather than isolating any particular event, particularly the crime itself,” Freedman said, adding that jurors need a “framework.”

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