Death penalty decision imminent in Boston bombing

As attorney general, Eric Holder has approved pursuing the death penalty in at least 34 criminal cases, upholding a long-ago pledge to Congress that he would vigorously enforce federal law even though he's not a proponent of capital punishment.

In the next day or two, Holder will make the most high-profile death penalty decision of his career in law enforcement: whether to seek capital punishment in the case of Dzhokhar Tsarnaev, the defendant in the Boston Marathon bombings last April that killed three people and injured 260.

As the U.S. attorney in Washington, D.C. in 1993, Holder recommended to Attorney General Janet Reno that she not seek the death penalty in the case of a slain police officer because of legal obstacles that made conviction unlikely. Reno overruled him but in the end, the government cut a deal that put the killer away for life imprisonment, a frequent outcome in capital punishment prosecutions.

"The case had problems ... and when we had the ability to get a plea from the defendant that put him in jail without any chance of parole for the rest of his life, we decided to accept the plea," Holder explained later to the Senate Judiciary Committee.

At the same hearing, Holder assured the Senate panel that "I will enforce the law that has been passed, and any statute that contains a death penalty provision will be looked at as any other statute. I will enforce the law as this Congress gives it to us."

In recent death penalty cases brought by Holder's Justice Department, one defendant was sentenced to death and six received life sentences, either through a plea or a trial.

Even when there's a conviction, the odds against death sentences being imposed are such that "from the Justice Department's point of view the question about the death penalty often comes down to `If we seek it, how likely are we to get it?"' said David Schertler, who was chief of the homicide section when Holder ran the U.S. Attorney's office in Washington, D.C.

Holder has had "a lot of experience with the death penalty and he has always been extremely thoughtful, deliberate and concerned about being consistent on the subject," Schertler said.

As recently as last week, Holder emphasized that his opposition to the death penalty is due in part to practical concerns -- what he sees as failures in the legal system.

"The problem is that in too many places, lawyers who are defending poor people don't have adequate resources to do a good job," Holder said in an appearance at the University of Virginia last Thursday. "You end up with these miscarriages of justice."

"It's really one of the reasons why I am personally opposed to the death penalty," Holder added. "As good as our system is, it's ultimately a system that is filled with men and women who are well intentioned but who make mistakes. And as horrible as it is for somebody to be put in jail for crimes that they did not commit, it is obviously not as bad as a situation where somebody is executed for a crime that he or she did not commit."

But Holder's description of a flawed legal system with inadequate resources doesn't apply to the Boston case.

One of the finest death penalty attorneys in the country, Judy Clarke, is leading the legal team defending Tsarnaev. That legal team may be able to mount a strong defense by arguing that the defendant, just 19 at the time of the bombings, was under the influence of his older brother, Tamerlan, who was killed in a shootout with police four days after the blasts.

Another factor could complicate the government's case if it seeks the death penalty. Massachusetts hasn't had a state death penalty law since 1984. History suggests that it can be extremely difficult for federal prosecutors to win capital punishment cases in states that don't have a capital punishment law of their own.

On the other hand, a jury of Massachusetts residents handed up a death sentence in the only federal capital case now pending in the state. A judge tossed out the jury's death sentence against Gary Lee Sampson, a drifter who pleaded guilty in the July 2001 slayings of two men who had picked Sampson up hitchhiking. The U.S. Attorney in Boston, Carmen Ortiz, says prosecutors will again seek the death penalty instead of allowing Sampson to serve a life sentence.

The numbers seem to suggest an uphill battle for a death penalty prosecution.

From 1993 to 2012, the Justice Department brought 88 capital punishment cases in states that didn't have a death penalty. Just seven of the defendants wound up on death row, according to data compiled by the Federal Death Penalty Resource Counsel Project.

Larry Mackey, a former Justice Department prosecutor, said that if Tsarnaev goes to trial, jury selection will delve into whether the jurors really hold the same view as Massachusetts law. In the end, he said, any risk that the prosecution can seat 12 jurors prepared to vote for death -- even in Massachusetts -- will propel negotiations for a guilty plea with life imprisonment. In this case, both parties have a reason to be at the negotiating table, he said.

There have been just three federal executions since the death penalty was reinstituted in 1976, and Mackey prosecuted one of them -- Timothy McVeigh, in the Oklahoma City bombing case. The other defendant in the Oklahoma City bombing case, Terry Nichols, is serving a term of life imprisonment without possibility of parole.