During my interview on Fox and Friends First (@FOXFriendsFirst) with Ainsley Earhardt (@AinsleyEarhardt), I discussed the guilty verdict in the Boston Bombing trial and the penalty phase which will follow. Watch the video to hear how the jury will be instructed on the law and whether I believe they will sentence Dzhokhar Tsarnaev to death.

On Tuesday, April 7, 2015, Dzhokhar Tsarnaev was found guilty of all 30 counts brought against him by the Federal Government. This does not come as a surprise! As a practicing New Jersey Criminal Defense attorney and former Homicide Prosecutor, it became evident that Tsarnaev’s attorney was conceding the guilty phase of the case and trying to set up her arguments to save her client’s life in the penalty phase.

IMG_2605So what’s next? Because the federal government brought these charges in Federal Court (as opposed to the Superior Court of Massachusetts which does not have the death penalty), the case will move to the sentencing phase where the jury will decide if Tsarnaev should be sentenced to death.

Tsarnaev faces the death penalty because 17 charges (out of the 30 charges that he was convicted of) are death penalty eligible.

Additionally, the United States Attorney has elected to request the death penalty by alleging aggravating factors, which the jury will have to consider to determine if the death penalty is the appropriate sentence. The United State Attorney has alleged the following aggravating factors related to the homicide charges against Dzhokhar Tsarnaev:

1. The grave risk of death to additional persons, other than the murder victims;
2. Heinous, cruel or depraved manner of the murders;
3. Substantial planning and premeditation;
4. Vulnerability of a victim due to age;
5. Death during the commission of another crime (use of a weapon mass destruction).

In order for this jury to sentence Dzhokhar Tsarnaev to death, the jury must unanimously find one or more of these aggravating factors beyond a reasonable doubt. They must also unanimously find that the aggravating factors outweigh the mitigating factors.IMG_2608

How will Tsarnaev’s attorney try to save his life? The jury will also be instructed that they must consider mitigating factors. The mitigating factors the Defense will likely argue in an attempt to save Tsarnaev’s life are the following:

1. Duress – The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

2. Minor participation – The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.

3. No prior criminal record – The defendant did not have a significant prior history of other criminal conduct.

4. Other factors – Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence

As I discussed with Ainsley, as a former homicide prosecutor and criminal defense attorney, I believe that the aggravating factors outweigh the mitigating factors, resulting in a death sentence. Even assuming there are mitigating factors, the weight I would give the mitigating factors would be minimal. Conversely, I believe that the five aggravating factors can all be proved beyond a reasonable doubt and they outweigh (possibly even substantially outweigh, although not required) the mitigating factors.

In my opinion, one of the most substantial aggravating factors weighing in favor of the death penalty is that the planning and premeditation was substantial over the course of time. Specifically, the research of bomb making procedures and terrorism propaganda. Additionally, the heinous, cruel and depraved manner of the killing of the victims was horrible. Finally, there was a grave risk to others, which resulted in gruesome injuries to innocent bystanders that were not killed in the blast.

Importantly, as discussed in the video, the 12 deliberating jurors must unanimously find that one or more of the aggravating factors were proved beyond a reasonable doubt and that those aggravating factors outweigh any mitigating factors that a juror found.

If all 12 jurors are not unanimous, the defendant will be sentenced to life in prison without parole.
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. Based on my extensive experience, I believe this jury will return a sentence of death.