Death penalty decision imminent in Boston bombing

WASHINGTON — The top lawyer for the U.S. this week will make the most high-profile death penalty decision of his career: 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 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.

Holder has emphasized that his opposition to the death penalty is due in part to 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 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 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 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.

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.

There have been just three federal executions since the death penalty was reinstituted in 1976.

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.

"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 the U.S. attorney in Washington in 1993, Holder recommended to Attorney General Janet Reno that she not seek the death penalty in the case of a killed 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."