WBOB Original Reads

Death

1/31/2014

Michael J. Gardiner

In tarot the death card it is said, symbolizes purification, change and a new beginning. But in a criminal prosecution, it is a motivational tool. The United State Department of Justice, U. S. Attorney General Eric Holder,has filed with the court and for defense counsel a notice of intent to seek the death penalty in the Boston Marathon Bombing case.

The prospect of the death penalty may motivate Dzokhar Tsarnaev to enter into a plea bargain that saves his life and keeps him in prison for the rest of it. By showing the death card, the Justice Department is not invoking some retributive avenging fury. Instead, it is doing its job of bringing the accused to justice. There is no moral dilemma created by confronting the accused with the prospect of the death penalty. It is simply a matter of law.

If Tsarnaev stands trial, and prosecutors argue for the death penalty, a conviction of the offenses charged will not empower the government to take a life. Rather by a Federal jury of 12 selected with the defendant’s participation will decide his fate in a sober process of deliberation. The Defendant while having the right to remain silent throughout all proceedings will nevertheless also have the right to get on the stand and to defend himself and to “win”his acquittal, and/or to try to convince the jury not to impose the death penalty.

Killing the accused bomber, murderer, car jacker, kidnapper offers no satisfaction. If Dzokhar Tsarnaev is executed for the alleged crimes it will not bring back bombing victims, 8 year old Martin Richard, Krystle Campbell, Lingzi Lu and shooting victim, Security officer Sean Collier. We all know that the execution will not make amends for the maiming and injury of hundreds of others, or the crime against peace. An execution will not deter all future terrorists. But we also know that execution for such alleged crimes is richly deserved and the law of the land, decided by our elected representatives and supervised by our courts, allows it and legitimizes it. The depth and rigor of our process imbues a legitimacy that is stronger than the “conscience of one righteous man or woman,” those many who will elevate their personal moral beliefs and subjective “feelings” above the law with which we govern.

An execution will not be ordered or performed flippantly or haphazardly or in hot blooded anger and grief. If the accused is convicted and a jury decides he should receive the ultimate sanction, the entire trial and the penalty will be review-able and all while he has the assistance of counsel.

I do not support the extension of execution and requirements for execution must be stringent. I respect the opinions of those who oppose it because they feel they must. Our system of justice is not perfect and judicial review is so important because errors are made. Injustices do occur.

There are some criminal cases where the evidence is so dependent upon on the drawing of inferences, from eyewitnesses of limited or challenge-able perception that the death penalty should not be considered. There are circumstances where prosecutors should not seek a death penalty and where the court should neither consider it nor allow a death penalty question to go to a jury, even though the a statute might permit it. But this Boston Bombing case, with its extensive reliance on recorded imagery gathered from multiple third party sources is not such a case. The evidence is photographic, and then also supported by direct eyewitness testimony and documentation of other circumstance is extensive. If there be a conviction in this case, the danger of an execution of the “wrong man” seems to be almost non-existent.

Some would argue that “life” in prison us a superior punishment to martyrdom while still young and pretty. But I do not hold with that. If the accused, Tsarnaev, is convicted, his life will have little purpose remaining. He will find some hope or purpose as a survival instinct, and this may well turn to tasking the prison system to fulfill his whims or glorifying himself in either self-celebration or martyred humility or self-serving pious religiosity. We should not strain for an opportunity to indulge such a life. We as a society do not need to hear his repeated pleas for forgiveness and claims of his “newness” over the years. Its really not just about him. It’s about us, as a society. We are better off without him. We don’t need him continuing to leave a wake, even from prison.

Our decency has lead us into to the folly taking on a duty to guarantee the happiness of prisoners with “who they are.“ inside, male or female. We are tasked by their dietary preferences and other whims aggrandized by their own religiosity and cultural identification. I see no reason to tarry with the self-serving manipulative forays of our prisoners.Where the law and the sentence imposed contemplates restored freedom for a convict, then the convict is entitled be fed and sheltered in such conditions that the convict might attain it without undue wear and tear. It even serves us to prepare convicts to re-enter society. But here, the accused, if convicted, is likely to have no prospect of re-entering society. It would be a mistake to allow him to simmer at our expense and to task us with his maintenance and his hopes for release.

Tsarnaev, with a right to speak in his defense and plea for his life has more rights than his sudden victims. He might hope that sympathy for his youth might rescue him. But compared to 8 year old Martin,whose sweet face haunts me being so like my own son’s, the accused has already led a long and full life. What weight can be given the Boston Bomber’s worries and discomforts versus the sufferings and enduring injuries of all the victims, what weight against the affects upon their families and friends? Finally, what weight should even reservations about the death penalty in general have against our peace and our society? No regretful weeping, pleas of sorrow, confessions of youth, mistake and confusion and the like should move us.

Let us remember the accused Boston Bomber for his mercy. On top of all the terrible charges, he allegedly administered a coup de grace to his own brother Tamerlan, who was lying in the road with gunshot wounds, running him over with an SUV while avoiding capture.
In the decision of the U. S. Attorney General to seek the death penalty, some may feel compelled to debate the death penalty on practical, ethical and philosophical grounds. But If Tsarnaev is convicted the jury will not be tasked with any such grand moral responsibility to answer the big question. There will only a question of law and duty. If Tsarnaev is convicted, I say death.

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Michael Gardiner is a practicing attorney and host of the popular Mic Gardiner show Live Saturdays 11am

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Death

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