Just one day after the verdict in the Boston Bombing Case, I was interviewed on Fox and Friends First (@FOXFriendsFirst) with Ainsley Earhardt (@AinsleyEarhardt). I discussed the guilty verdict and the upcoming penalty phase which was to follow. During that interview, I predicted that the jury would sentence Dzhokhar Tsarnaev to death. That prediction was correct. Last week, the same jury unanimously concluded and recommended a sentence of death to Judge George A. O’Toole Jr. of the Federal District Court.

So what is next? Will Dzhokhar Tsanaev appeal?

In this video on America’s News HQ (@ANHQDC) with Eric Shawn (@EricShawnonFox) on Fox News, I discussed the upcoming sentencing proceeding, the appeal, the decision by the Department of Justice to seek the death penalty, and whether Tsarnaev should be viewed as a martyr.

Following the guilty phase, the next proceeding will be the sentencing hearing at which time some of the victims, as well as the defendant, will have an opportunity to speak. The defendant is not required to speak, but he certainly has a Constitutional Right to speak if he chooses. The proceeding is unlike most sentencing hearings because, here, the Judge does not have discretion on the sentence, but rather must follow the jury’s “recommendation” of death.

Next, the defendant has 10 days after the Judge’s sentence to file an appeal of the conviction. He has a constitutional right to appeal his sentence, however, this is not a mandatory appeal because it is a federal case. While some states require a mandatory appeal of a state death sentence, the federal rules of appeals does not. The appeal is required to be filed at the direction of the defendant.

As I discussed during the appearance, why doesn’t Tsarnaev just waive his appeal rights? This would certainly speed up the process. Additionally, isn’t it clear that Dzhokhar Tsarnaev wants to die? Based on the writings from the boat, Tsarnaev said he was jealous of his brother because he died and he asked Allah to allow him to return to him. If Tsarnaev made his decision based on these thoughts, he would surely waive his right to appeal which would speed up the appeals process of the Federal System that historically takes more than 15 years to exhaust.

Can this be done? Yes. It was done by Oklahoma City Bomber, Timothy McVeigh, in 2000. McVeigh filed an affidavit, against the advice of counsel, stating that he wished to waive his right to appeal and felt ”fully competent to make the decision” not to appeal. McVeigh also offered to submit to a psychological evaluation if the judge thought it necessary.

As an experienced criminal trial attorney, I would recommend that Tsarnaev appeal the sentence. However, the decision to appeal rests solely on the discretion of the defendant so long as he is competent to make that decision.

The attorneys at The Bianchi Law Group are specialists in Criminal Prosecution and Criminal Defense Cases and have tried numerous murder cases. In addition, as a former homicide prosecutor, I have had the ability to try numerous high-profile and horrific murder cases in the State of New Jersey.