VICTIMS: Boston Bombing Trial Could Cause More Trauma

In an op-ed in the Boston Herald, Michael Avery, professor emeritus at Suffolk University Law School, whose sister and niece were murdered 30 years ago, suggested that a plea bargain might be a better ourcome for all concerned in the case of Dzokhar Tsarnaev, the defendant in the Boston Marathon bombing. A trial, he said, would be painful for victims and survivors: "Boston will relive every tortu[r]ous moment of the bombing, over and over, probably for weeks...if Tsarnaev is convicted, we’ll have a second trial on the penalty. The defense lawyers will present evidence in mitigation of the death sentence. We’ll suffer through two Chechen wars, a Russian occupation, and a psychoanalysis of the defendant.” He reflected on his own experience when his sister’s killer was put on trial: "Although I’m a lawyer, I didn’t go, and I didn’t read the Florida papers reporting the evidence. I couldn’t have handled it. My heart goes out to the people who won’t be able to handle the Tsarnaev trial. They won’t be able to avoid the massive publicity.” He urged Attorney General Eric Holder to spare all of Boston further trauma by accepting a guilty plea and a sentence of life in prison. Read the full op-ed below.

As You Were Saying...Spare bomb survivors trial trauma

Federal prosecutors have an important decision to make in the case of Dzhokhar Tsarnaev, the accused Boston Marathon bomber, whose trial begins in January. Will they insist on the death penalty, or will they take a sentence of life imprisonment in exchange for a guilty plea? In about half the federal cases where the government initially seeks death, it takes it off the table before trial. It should do so here.

Why shouldn’t the government ask for death if Tsarnaev is convicted of killing three innocent people and wounding over 260 others, with bombs designed to maximize serious personal injuries? A majority of Massachusetts citizens are categorically opposed to the death penalty, but the federal government brought this case.

Suppose you voted for the death penalty — why shouldn’t we go for it in this case? I know. You don’t want to hear this. You’re saying the guy deserves it. Case closed. But think about what it’s really going to take to close this case.

This won’t be a short trial. Boston will relive every tortu[r]ous moment of the bombing, over and over, probably for weeks. We’ll go shopping with the Tsarnaev brothers for components, learn how they built the bombs, watch them explode multiple times from multiple angles, and see more pictures of the victims than we can stomach. We’ll attend the deadly shootouts as the perpetrators attempted to escape, and see more gruesome photos. Then if Tsarnaev is convicted, we’ll have a second trial on the penalty. The defense lawyers will present evidence in mitigation of the death sentence. We’ll suffer through two Chechen wars, a Russian occupation, and a psychoanalysis of the defendant.

Do we need this? How will this reliving of the marathon bombing affect our community, particularly the victims? The processes of grieving and acceptance of loss began over 18 months ago, independent of the criminal justice system. Will a death penalty trial speed the healing, or set it back? Will it bring people closer together, or divide them? Will the trial ignite flashbacks, forcing people to relive the most exquisitely painful moments of their lives?

There is almost no research on the effects of death penalty trials on victims and survivors. Not everyone reacts the same. No one can say what the victims and survivors want because they don’t all want the same thing. But for some, a death penalty trial will be hell.

I know a little bit about this. Over 30 years ago a guy went into a supermarket on July Fourth weekend in Tampa, Fla., threw the contents of a can of gasoline on the people at the checkout counter, then lit it with a match. He burned five people to death, including my 23-year-old sister and her 3-year-old daughter. There was a death penalty trial. Although I’m a lawyer, I didn’t go, and I didn’t read the Florida papers reporting the evidence. I couldn’t have handled it. My heart goes out to the people who won’t be able to handle the Tsarnaev trial. They won’t be able to avoid the massive publicity.

I think about my sister Marty a lot. I never think about the guy. He’s serving several consecutive life sentences and will never see the light of day. Fine. He’s dead to me. The same thing will happen to Tsarnaev if he pleads guilty, which he will undoubtedly do if the prosecution drops its request for the death penalty. That is what Attorney General Eric Holder and U.S. Attorney Carmen Ortiz should do. Not for Tsarnaev. For Boston.

Michael Avery is professor emeritus at Suffolk University Law School. “As You Were Saying” is a regular Herald feature.

(M. Avery, "As You Were Saying...Spare bomb survivors trial trauma," Boston Herald, op-ed, November 28, 2014). See New Voices, Federal Death Penalty, and Victims.