Then there will likely be a motion for a new trial and a complex appeal process that could take years. “Death penalty litigation is different from every other type of litigation,” attorney Andrew Levy says.
A trial lawyer with experience in capital cases, Levy added, “You leave nothing on the cutting room floor. Everything gets appealed.”
In the last federal death penalty case, it took four years between the conviction and execution of Oklahoma City bomber Timothy McVeigh. That time frame was considered to be quick by many legal experts, expedited by the fact that McVeigh eventually ended his appeals.
No one can say with certainty what will happened in the Tsarnaev case, of course, but the first step for his defense attorneys would be to file a motion for a new trial with the original trial Judge, U.S. District Court Judge George O’Toole Jr. The defense argued before the trial began for a change of venue, claiming that Tsarnaev could not get a fair trial in Boston, and it is possible they would take up that claim again. If the motion for a new trial is denied, a two-part appeals process is next.
Even if the Supreme Court declines the case, the appeals process is not necessarily over. The defense could file a Habeas Corpus petition, which would entail a lengthy, second review of the legal issues involved in the case.
Although the process could be agonizingly slow, some legal analysts believe a successful appeal by Tsarnaev would be a longshot. Tsarnaev admitted at trial that he committed the crime. His lawyers tried to convince the jury that he only did so because he was under the influence of his older brother, but that strategy failed.
Dzhokhar’s defense could have pleaded guilty and taken life in prison and avoided the trial that lead to the death penalty. Instead, they chose a strategy that would require the government to prove his guilt, and they lost.
If his lawyers choose to petition for a new trial, and use all of the appeals process, it could be years before Tsarnaev would have to face the death penalty jurors imposed today.