Dzhokhar Tsarnaev sentenced to death: What are his chances of appeal?

Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death this afternoon, concluding a three-month trial that has captivated the country.

The trial was one of the most high-profile death penalty cases in more than 20 years. As he listened to the verdict, Mr. Tsarnaev was expressionless, his hands folded in front of him, according to accounts from the courtroom.

The same 12-member jury that convicted Tsarnaev of all 30 charges against him in early April decided his final sentence, which ultimately disregarded the defense team's arguments that Tsarnaev was a teenager swept up into violence by his radicalized older brother, Tamerlan, which it painted as the mastermind of the bombings. A death sentence required unanimous agreement among the jury.

After spending 11 hours deciding whether to convict Tsarnaev, the jury spent 14 hours over three days deciding his sentence — exceeding the time it took for a jury to decide a sentence for Oklahoma City bomber Timothy McVeigh.

The decision ran counter to the general sentiment in the Boston area, according polls from the Boston Globe and WBUR that found the majority of Bostonians favored a sentence of life in prison without parole. The jury in the case was "death qualified," which meant only those people who said that they could sentence Tsarnaev to death if they thought his crimes warranted it were eligible to serve.

After a more than month-long jury selection process, the trial proper began with opening statements on March 4, where Tsarnaev’s lawyers essentially admitted his guilt.

The jury spent almost half an hour reading through the verdict form Friday before announcing the death sentence. The parents of eight year-old victim Martin Richard watched from the gallery, along with the sister of Sean Collier, a Massachusetts Institute of Technology police officer.

Tsarnaev carried out the bombings with his older brother Tamerlan on April 15, 2013. The attacks resulted in the deaths of Krystle Campbell, Lingzi Lu, and Martin Richard. The brothers also killed Officer Collier days later in an aborted attempt to steal his gun as they tried to escape the city.

The brothers engaged in a shootout with law enforcement the night of April 19 in Watertown. Tamerlan was killed in the altercation and Dzhokhar was later found hiding in a dry-docked boat, where he scrawled notes on the inside walls saying the bombings were in retaliation for US wars in Muslim countries.

“Stop killing our innocent people and we will stop,” he wrote.

Seventeen people also lost limbs in the attack. Overall more than 260 people were injured. Liz Norden and Karen Brassard, among other victims of the bombings, were also in the courtroom today.

The jurors appeared to agree overwhelmingly with some of the mitigating factors introduced by the defense, including that his teachers said he was kind and considerate, and that his friends say he is “thoughtful, caring and respectful," but ultimately they didn’t appear to be swayed by the central argument of the defense: that Tamerlan was the self-radicalized mastermind of the bombings and pressured Dzhokhar into helping him carry them out.

Five jurors found that Tamerlan became radicalized first and encouraged Dzhokhar to follow him, another mitigating factor, but only two agreed with the mitigating factor that he has expressed sorrow and remorse, however, a telling and perhaps critical factor in their decision. Tsarnaev’s inscrutable nature was a persistent storyline throughout the trial.

Rosanna Cavallaro, a law professor at Suffolk University, says the only thing Tsarnaev’s defense team could have done differently was put him on the stand and let him speak for himself.

“They did everything they could do to put a more human face on their defendant,” says Ms. Cavallaro.

This included asking his relatives from Russia to describe what he was like as a child – testimony that did provoke a tear from him – and testimony from Sister Helen Prejean, a Catholic nun and anti-death penalty advocate, who said he was “genuinely sorry” for his crimes.

“Putting him on the stand probably wasn’t going to be helpful if he didn’t express authentic remorse,” Cavallaro adds.

The case is now likely to go through years of appeals, however. 

Of the 80 people sentenced to death by the federal government since 1988, only three have been executed including McVeigh, according to the Death Penalty Information Center.

Each death penalty sentence triggers a mandatory direct appeal in federal court, though arguments would be restricted to issues from the trial. If that fails, Tsarnaev's defense would then be able to follow the federal habeas corpus process, which allows him to petition the US District Court for a post-conviction review. If the petition is dismissed, Tsarnaev could appeal to the US Court of Appeals and possibly even the Supreme Court.

Cavallaro says that Tsarnaev’s best argument in an appeal is that the trial should have been moved out of Boston. His lawyers appealed three times to relocate the trial, arguing that Boston-area residents were too affected by the bombings to judge the case impartially.

“Even there it's so tricky, because it’s hard to say any community, that after it's been death qualified, is more hospitable to the defendant than Massachusetts,” says Cavallaro. “They have nothing, honestly.”

“I don’t think the defense would say the aggravating factors weren’t proven. They would say they should have been weighed differently, and that doesn’t really hold up well in appellate court,” she adds.

But even if Tsarnaev loses his appeals, the process is still going to take years, she says.

“It’ll still take just as long to go through all the [court] transcripts and ultimately make an argument that’s not a winner,” she says.

Death row inmates typically spend more than a decade waiting for execution, according to the DPIC. The parents of Martin Richard even urged prosecutors, after Tsarnaev was convicted, to take the death penalty off the table in an open letter to the Justice Department.

“As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours,” they wrote.

After the verdict was announced, Judge George O’Toole thanked the jurors for their service, saying they "stand as a model" for future juries. Tsarnaev's defense team left the courtroom without talking to the media.

US Attorney General Loretta Lynch issued a statement saying Tsarnaev “coldly and callously perpetrated a terrorist attack that injured hundreds of Americans and ultimately took the lives of three individuals.”

“We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries,” she added. “But the ultimate penalty is a fitting punishment for this horrific crime.”

Boston Mayor Marty Walsh said he hoped that, now that the trial had reached a conclusion, the city would continue to heal.

"I hope this verdict provides a small amount of closure to the survivors, families and all impacted by the violent and tragic events surrounding the 2013 Boston Marathon," Mayor Walsh said in a statement. "We will forever remember and honor those who lost their lives and were affected by those senseless acts of violence on our City. Today, more than ever, we know that Boston is a city of hope, strength and resilience, that can overcome any challenge."