Remorseless Dzhokhar Tsarnaev will not be executed for his role in the horrific Boston Marathon bombings — even though "if ever a crime deserved the death penalty, it's this one," famed civil-rights lawyer Alan Dershowitz tells
Newsmax TV.
"Tsarnaev is going to spend the rest of his life in prison and will die in prison, not as a result of execution," Dershowitz said Thursday on the "Steve Malzberg Show."
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"To get the death penalty, you have to convince 12 Massachusetts jurors, all 12 of them. If one of them holds out, there's no death penalty, there's life without possibility of parole."
On Wednesday, a jury convicted Tsarnaev, 21, on all 30 counts related to the April 15, 2013, bombings that killed three and wounded 264, including 17 who lost limbs. The defense argued Tsarnaev was influenced by his older brother who also participated in the bombings and was killed.
The Muslim immigrant of Chechen descent now faces the death penalty or life in prison when sentenced by the same jury in phase two of the trial.
"Even if [the prosecutors] manage to convince 12, they have to then get past three judges in the Court of Appeals, then an en banc Court of Appeals, then the U.S. Supreme Court, and then the possibility of a presidential commutation," Dershowitz said.
"The likelihood that he will actually be executed is fairly slight. In fact, some of the victims … who were thrilled at the conviction, when pressed, will say they have no opinion on whether he should be executed or were opposed to execution."
Dershowitz, a Harvard Law professor emeritus and Newsmax contributor, said the commonwealth of Massachusetts has a long history of opposition to capital punishment.
"[There is Sen.] Ted Kennedy's famous letter when his brother [Robert Kennedy] was killed, not seeking the death penalty in that case, so there's a strong feeling about the death penalty in Massachusetts," he said.
"The archbishop, the cardinal of Massachusetts, a great man, has come out against the death penalty, and many in Massachusetts abide by religious convictions of the Catholic Church or other churches and religions which are opposed to the death penalty."
Despite the sentiment, Dershowitz said the heinous nature of the crime means there is still a small chance death could be imposed. If it were, it would be the first execution in Massachusetts in 68 years.
"It's a long shot, but it's possible. This is the most gruesome, grievous crime. If ever a crime deserved the death penalty, it's this one, and I have no sympathy [for] this defendant," he said.
"I don't buy his notion that he was influenced by his brother. He's an adult and he has to take responsibility for his own conduct — but there may be other mitigating circumstances that we're not aware of and the jury will hear."
Dershowitz — author of
"Terror Tunnels: The Case for Israel's Just War Against Hamas," published by Rosetta Books — said if Tsarnaev's older brother Tamerlan had lived and been tried, he probably would get the death penalty, a point lead defense lawyer Judy Clarke will likely make to the jury.
"What she's going to argue is, 'ladies and gentlemen of the jury, if you have before you both Tsarnaev brothers, what you would probably do is sentence the older one to death, but the younger one not to death,'" Dershowitz said.
"'The fact that the older one is not here shouldn't change that view on your behalf. Also, ask yourself the following question: If the older Tsarnaev brother had been killed five years ago in an automobile accident, would the younger one be here today? The answer to that is probably no.'
"That's going to be the nature of the argument she's going to try to make."
The last executions in Massachusetts were carried out on May 9, 1947, when convicted murderers Phillip Bellino and Edward Gertson were strapped to the electric chair and electrocuted. There have been about 345 executions in the Bay State's history, including those of 26 people convicted of practicing witchcraft.