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Should we still use the death penalty anywhere in the US?

Even the family of one of the Boston Bomber’s victims, an 8 year old boy, asked that the death penalty not be used.  Usually, the conservative elements in American support the death penalty.  Here’s an interesting argument against the death penalty from a famous conservative, columnist George Will.  http://www.startribune.com/watch-the-death-penalty-wither-away/304492391/

After working almost 40 years in the criminal justice system, I agree (Minnesota doesn’t have a death penalty) with George Will because:

1.  It represents government intrusion into our lives (I hadn’t thought about this) that conservatives don’t like.

2.  The death penalty can’t be reversed.  We all know how government can screw-up things, plus our justice system is not perfect.  Think of how horrible you’d feel if you were innocent but had been wrongly convicted—and now faced the death penalty.

3.  The death penalty isn’t a deterrent to crime.  George Will’s point is that after years of appeals, when the execution finally occurs, it’s too late to deter anyone.  I’d add that, from my years working with criminals, the penalty is seldom a deterrent to many crimes.

Why?  Most violent crimes are committed under the influence of alcohol and/or are crimes of passion—drunk man gets furious with wife and kills her.  In none of these instances do the criminals consider the possible penalty.

4.  But what about horrible crimes like the Boston Bomber where he and his brother planned this for weeks?  Wouldn’t the death penalty deter these types of crimes?  No.  Because these kinds of criminals either think they’re too smart to get caught or they don’t care if they’re caught and executed.

5.  What about the victims?  I worked with many victims when I was a prosecutor.  Of course, they want justice—but that can take many forms.  Some would like the death penalty and some want to forgive the criminals.  The problem with the death penalty is that it takes so long to carry out that the benefits of swift punishment and justice are lost.  Consequently, victims must re-live the events for years, waiting for closure.

What do you think?  I know many of you have strong opinions—what are they???

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Why would she do this?  What does it mean and what will happen during the trial?

After over 30 years in courtrooms, I can tell you: here are 4 things to watch for as the trial unfolds.

1.  Mr. Tsarnaev is guilty.  The evidence as reported by the media is overwhelming.  Why would the defense lawyer admit this without forcing the government to bring evidence to prove her client guilty?  Since there is no defense to his guilt about committing the crime, the only chance he has would be if the government made a technical mistake or a critical witness died—even then the prosecutor may be allowed to introduce statements by the witnesses anyway.  You will see Tsarnaev’s lawyer, instead, asking questions about his older brother and the control the older brother had over Dzhokhar in order to get him to go along with the bombing.

2.  How can Dzhokhar Tsarnaev be charged with the crime?  I don’t think there’s any evidence that he blew up the bomb—instead his older brother did that.  So, how can Dzhokhar be charged?  Because of a statute that almost all jurisdictions use: the “aiding and abetting” statute.  Fancy words that mean if a person participates with another to commit a crime, both can be found guilty of being the Boston Bomber—even if Dzhokhar played a small or minor role.  This is kind of like being a kid accused of stealing the cookies with his sister.  If the sister did everything wrong but you helped her reach the cookie jar on the top shelf, you’re both guilty of the same thing.  You’ll see the prosecution hammer away at this point.  Even if the brother master-minded everything, Dzhokhar participated and is, therefore, guilty of murder.

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3.  Then, why is the defense lawyer trying to get into evidence about the older bother’s influence?  She’s probably trying to get the jury to make a distinction between the two bothers—in the hopes they will not decide on the death penalty.  Instead, they would give her client life imprisonment for being one of the Boston Bombers who played a minor role, essentially “forced” by the older brother.

4.  Will the judge allow this process?  It’s going to be tough for Ms. Clarke.  Technically, any evidence of the bother’s influence would be left for a sentencing hearing.  The purpose of the trial is to determine if Dzhokhar is proven guilty beyond a reasonable doubt—which his lawyer’s already admitted.  The judge may restrict the defense from any evidence about the older brother.

Do you think the defense strategy is wise?

The post 4 Things to Watch for in the Boston Bomber Trial appeared first on Colin T. Nelson.

Here is a peek at the possible defense:

1.  How can the prosecutors distinguish exactly what Dzhokhar Tsarnaev did instead of what the brother did?  What if the older brother (Dzhokhar was 19 and Tamerlin was 26) masterminded everything and actually set-off the bomb?  How could Dzhokhar be held responsible?  Under both federal and state law there’s a legal principle called “aiding and abetting,” or liability for the crimes of another person.  Dzhokhar can be charged with the crimes even it his brother was the Boston Bomber and did the dirty work.

2.  How can the prosecutors prove that Dzhokhar Tsarnaev liable for the crimes of his brother?  The laws generally read something like this:

Liability for crimes of another.  A person is criminally liable for a crime committed by another if the person intentionally

aids, advises, hires, counsels, or conspires with the other to commit the crime.

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The prosecutors have to prove two things:  The crime of blowing up the bomb and injuring/killing people happened and that Dzhokhar Tsarnaev participated or helped do that in some fashion.  The courts have interpreted this participation to be any degree—even a very small bit of help.  Even if Dzhokhar drove the get-away SUV and nothing else, he could be convicted of the full crimes.

3.  What’s the defense going to be?  Dzhokhar’s lawyers have not revealed much, but they’ve asked the court for more time to have a defense expert study the control and influence Dzhokhar’s older brother, Tamerlin, exerted over Dzhokhar.  What would this mean?

It’s possible the defense team is going to rely on something called “duress.”  Federal law says: duress excuses criminal conduct when the actor is under unlawful threat of imminent death or great bodily harm, which threat caused him to act.

4.  How would that work in the trial?  The defense would have to prove that Dzhokhar was so much under the influence of his older brother that Dzhokhar acted.  But it has to be a threat from Tamerlin against Dzhokhar or another family member that’s immediate and deadly.  They must show that Dzhokhar had no other choices but to go along with the brother.

5.  How about a defense like “brainwashing??”  The defense has said the “family dynamic” is the key to the defense.  I don’t know what this means because there’s no defense of “brainwashing.”  Many of you know about the “Stockholm syndrome” where kidnapped people commit crimes because they’ve fallen under the control of the kidnappers—but that’s not the case here.

As the trial unfolds, we’ll see what the defense comes up with and I’ll comment more.

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