Penalty phase begins in Marathon bombing trial

Patricia Wen, Milton J. Valencia, Kevin Cullen and Martin Finucane Boston Globe

Boston Marathon terror bomber Dzhokhar Tsarnaev is an unrepentant killer who attacked the world-renowned race to make a political statement, committing “unbearable, indescribable” murders, a federal prosecutor said Tuesday in opening statements in the second phase of Tsarnaev’s trial.

“His destiny was determined by his actions. And he was destined and determined to be America’s worst nightmare,” Assistant US Attorney Nadine Pellegrini told a federal jury in Boston, arguing that Tsarnaev should receive the death penalty.

Unveiling portraits of the three people killed in the bombing and the MIT police officer killed several days later by Tsarnaev, 21, and his brother, Pellegrini said, “Dzhokhar Tsarnaev took them all away. They are all beautiful and now they are all gone.”

“They had time to feel pain,” she said. “They had time to feel scared and frightened. They had no time to say goodbye.”

Tsarnaev, a self-radicalized Muslim, was convicted earlier this month in the first phase of the trial of 30 counts, including 17 that carry the possibility of the death penalty. The two blasts near the race’s finish line on April 15, 2013, also wounded more than 260 other people, including 17 people who lost limbs.

The jury in US District Court in Boston must now decide in the second phase whether he should be executed. The prosecution will seek to prove aggravating factors that argue for the death penalty, while the defense will seek to prove mitigating factors that argue for him to be spared. The jury will then have to weigh the factors against each other. If he doesn’t get the death penalty, he will get life without parole.

Unveiling a fifth photo, which showed Tsarnaev in the unsuspecting Marathon crowd, about to plant one of the two bombs in the attack near a group of children, Pellegrini said Tsarnaev’s methods had been “heinous, cruel and depraved.”

“He twisted the Marathon into something cruel and ugly for his own purposes … to a political statement,” she said.

The first witness for the prosecution Monday was Celeste Corcoran, who lost both legs in the bombing. Her daughter, Sydney, was also seriously injured in the attack. Corcoran described the moment of the explosion that changed her life.

“I unfortunately remember every single detail. I didn’t pass out. I remember being thrown up in the air … landing hard,” she testified. “I was choking. Trying to spit stuff out of my mouth Completely confused as to what had happened. There was this deafening silence.

Earlier, Pellegrini, in anticipation of defense claims that Tsarnaev was influenced by his late older brother, Tamerlan, said Tamerlan was “an easy target.”

“You may hear about family dysfunction,” she said. “Millions of people face trouble … few of them murder.”

Dzhokhar Tsarnaev’s “personal characteristics are what set him apart and it’s his character that makes the death penalty appropriate and just,” she said.

She said Tsarnaev was “unrepentant, uncaring and untouched by the havoc and sorrow that he created,” noting how he had gone to buy milk in Cambridge shortly after the attack.

She said that, no matter the origin of his radical Islamic beliefs, “terrorism sang to him.”

“He believed. He acted. He killed. He shared his belief in terrorism and he shared it with his brother and others,” she said.

In a final flourish at the end of her statement, Pellegrini showed a photo of Tsarnaev, who was in the federal courthouse for his arraignment on July 10, 2013, giving the middle finger to a security camera.

“This is Dzhokhar Tsarnaev — unconcerned, unrepentant, and unchanged,” Pellegrini said.

Before Pellegrini began her opening statement, US District Judge George A. O’Toole Jr. told the jury that prosecutors must prove at least one aggravating factor beyond a reasonable doubt, while mitigating factors must be found only by a preponderance of the evidence.

He said the process of weighing the factors against each other is “not arithmetic” and “not a mechanical process.”

“A single mitigating factor can outweigh several aggravating factors,” he said. “You are never required to return a verdict of death. … It’s an individual judgment that the law leaves up to each of you.”

He said the jury should not speculate on what punishment the victims’ families want. “It is for you to decide … the appropriate sentence in this case,” he said.

The defense is expected to give its opening statement next Monday, before it presents its mitigation evidence.

The opening statements of the trial’s penalty phase, which was expected to last four weeks, come at a time of heightened emotions in Boston, just a day after the running of the Marathon and within a week of the anniversary of the 2013 bombings.

In the past week, some high-profile victims have also called on the government to halt its pursuit of the death penalty, even as some other victims have expressed support for capital punishment.

Bill Richard, father of 8-year-old Martin Richard of Dorchester, who was killed in the blast, was in the courtroom for Tuesday’s proceedings. Richard and his wife, Denise, wrote an open letter, published on the front page of the Globe, that called for life in prison for Tsarnaev, rather than the death penalty. The Richards said a death penalty verdict “could bring years of appeals and prolong reliving the most painful day of our lives.”

Also killed in the bombing were: Lingzi Lu, a 23-year-old Boston University graduate student from China; and Krystle Marie Campbell, 29, who grew up in Medford and was a well-known restaurant and event caterer. MIT Police Officer Sean Collier was killed several days later as the Tsarnaev brothers sought to flee the area.

Massachusetts has a long tradition of opposing the death penalty. No execution has taken place in the state for nearly 70 years, and the state death penalty was abolished nearly three decades ago.

There have been two federal death penalty cases, however, in the state other than Tsarnaev’s.

In 2001, a federal jury in Springfield refused to hand out a death sentence for Kristen Gilbert, a veterans’ nurse who killed patients with lethal injection. Two years later, in 2003, a jury handed out a death sentence for Gary Lee Sampson, a drifter who carjacked and killed three people. That verdict was overturned after an appeal, and Sampson is slated to go before a jury again in September.

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 second phase of the trial is expected to last about four weeks.

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