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After decades in prison over murders, DNA evidence frees 2 New York men

february 7, 2014

(CNN) — Two men behind bars for more than half their lives over a triple murder walked free this week after DNA evidence tore holes in their convictions.

Antonio Yarbough and Sharrif Wilson were teenagers when prison doors clanked shut behind them.

Now, in their late 30s, they can hardly believe they’re out.

What does freedom feel like? “I’m still going through it right now,” Yarbough said Friday.”I haven’t slept yet. I’ve been up for two days now. I have no words for it right now.”

Nearly 22 years of hard time

Imagine more than two decades in a maximum security prison. Add to that the fact that you’re accused of killing your mother, your sister and your cousin.

As if that’s not enough, you were the one who discovered their lifeless, bloodied bodies when you opened the door to your home one night.

If it’s hard to imagine what that’s like, Yarbough will tell you.

After years in Attica’s maximum security prison among New York’s toughest criminals, he left its high, gray walls behind him Thursday.

“It was a nightmare,” Yarbough told CNN’s Piers Morgan in an exclusive interview. “Twenty-one years and seven months was more like 42 years and seven months, when you know you’re in prison for something you didn’t do.”

After reviewing DNA evidence, District Attorney Kenneth P. Thompson said the previous convictions for the 1992 murders in Brooklyn would most likely not stand up in court again and agreed the two men should be freed.

“Anybody looking at this evidence with an open mind would see that there is no chance in the world that Tony murdered his mother and these two little girls,” his lawyer Zachary Margulis-Ohuma said.

And that goes beyond the DNA evidence alone. Margulis-Ohuma was convinced Yarbough was innocent years before.

At least one false confession detectives coerced out of a scared teenage boy over 20 years ago led to the convictions.

A night out

After a night of partying, Yarbough, 18 at the time, and Wilson, 15, went home to Coney Island. Wilson was staying with friends, they said.

When Yarbough got home, he opened the door to find his mother, sister and a close family friend lying stabbed and strangled to death. The two girls were partially undressed.

Police came.

“I was asked to come down to the precinct,” he said. Officers said they wanted him to tell them who might have killed his family, he said.

“Before you know it, I had this photograph shoved in my face, and I was being threatened and slapped around, and they wanted me to sign a false confession. And I wouldn’t,” Yarbough said.

Police also took in Wilson and questioned him separately from Yarbough. But he got similar treatment, he said.

“I was scared, afraid; I was lied to, manipulated into believing that I was going to go home, if I do tell … what they said happened.” Wilson said.

Faced with a life behind bars, the young boy cooperated for the promise of lighter treatment.

Life in prison

The two were convicted in separate trials. Yarbough was sentenced to 75 years to life. Wilson got a lower sentence of nine years to life.

They sat behind bars for about 12 years, then something important arrived by mail.

“Out of the blue, I got a letter from his (Yarbough’s) aunt,” Wilson said. “And she asked me, did we really do it. And I had to tell the truth.”

He wrote back to her: “I was wrong for turning on him, but I was scared and pressured into it.” We’re innocent, he told her.

“For many years I felt horrible that I had to do that and that I actually did it knowing that we weren’t guilty for a crime we didn’t commit,” Wilson said.

“I still feel horrible now,” he said, sitting next to Yarbough.

Wilson’s letter led lawyer Margulis-Ohuma and the district attorney Thompson to review their cases in 2010 — five years after he sent it.

Wrongful convictions

Thompson came into office in January with promises to restore justice to the wrongfully convicted. This case is part of a review of Brooklyn killings from the 1980s and early 1990s.

Then, last year, the right shred of evidence came along in the form of a DNA sample from a rape-murder committed in 1999.

It matched DNA found under the fingernails of Yarbough’s mother, indicating that the same killer probably committed both crimes. In 1999, Yarbough and Wilson were in prison and couldn’t have committed the second murder.

Margulis-Ohuma called Yarbough in prison to tell him that he was going to be free.

“When I heard about it, I was extremely overwhelmed,” Yarbough said. “I was happy.”

And the DNA was not the only thing that matched. The m.o. was the same, Yarbough said. The victim was stabbed and strangled.

“Hope had finally started to sink in,” he said.

Free at last

Wilson and Yarbough had not seen each other for more than two decades, when they met in court Thursday.

Wilson approached the man he had testified against. “I just wanted to apologize to him for all I put him through, all I went through.”

Yarbough is still in pain over it, but he faults someone other than Wilson.

“I know what they did to him, because I know what they did to me,” he said.

As to finding his relatives’ killer decades later, Yarbough said, “It’s in God’s hand’s now.” He teared up.

Both men celebrated freedom by fulfilling some longings they had for two decades.

Wilson filled his mouth with a hot slice of New York pizza.

Yarbough filled his lungs with New York air.

OHIO – Kasich postpones March 19 execution – GREGORY LOTT

february 7, 2014

Gov. John Kasich has postponed the scheduled March 19 execution of Gregory Lott because of lingering concerns about the drugs used in the lethal injection of Dennis McGuire last month.

Kasich this afternoon used his executive clemency power to move Lott’s execution to Nov. 19.

While the governor did not cite a reason, Kasich spokesman Rob Nichols said he wanted to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution. “Gregory Lott committed a heinous crime for which he will be executed,” Nichols said.

During his Jan. 16 execution, McGuire, 53, gasped, choked and clenched his fists, all the while appearing to be unconscious, for at least 10 minutes after the lethal drugs – 10 mg of midazolam, a sedative, and 40 mg of hydromorphone, a morphine derivative – flowed into his body. The drugs had never been used together for an execution.

Attorneys for Lott, 51, are challenging his execution, complaining the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in the U.S. District Judge Gregory L. Frost’s court.

Lott, 51, was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it.

Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “leadership and careful consideration” by issuing a temporary reprieve.

Florida Supreme Court Orders Review of Lethal Injection Cocktail Ahead of Feb. 26 Execution

february 7,2014

The Florida Supreme Court on Thursday ordered a review of the new drug used in the state’s lethal injection cocktail in the case of Paul Augustus Howell, a Death Row inmate scheduled for execution Feb. 26.

 

Justices ordered a circuit court to hold an evidentiary hearing on whether substitution of the drug midazolam violates the constitutional protections against cruel and unusual punishment by the government.

 

Howell’s lawyers argued in briefs filed Tuesday that midazolam, the first of the three drug-cocktail that induces unconsciousness, paralysis and cardiac arrest, is problematic because it will not anesthetize him and would leave him “unable to communicate his agony” when the other drugs are administered.

 

The justices rejected an appeal about the new drug in a previous case, but in a four-page order issued Thursday said that an expert’s report submitted by Howell “has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam, in conjunction with his medical history and mental conditions, will subject him to a ‘substantial risk of serious harm.’ ”

 

The court also ordered the Department of Corrections to produce correspondence and documents from the manufacturer of midazolam concerning the drug’s use in executions, “including those addressing any safety and efficacy issues.”

 

The high court ordered the 2nd Judicial Circuit in Jefferson County, where Howell was originally tried and convicted of the murder of a highway patrol trooper in 1992, to hold a hearing and enter an order on the issue by 2 p.m. Wednesday.

 

In September, the Florida Department of Corrections substituted midazolam for the barbiturate pentobarbital as the first of the three-drug lethal injection “protocol.” Florida and other states switched to the new drug because the manufacturer of pentobarbital stopped selling it for use in executions.

 

The second drug, vecuronium bromide, renders muscle, including the diaphragm, unable to contract, making it impossible to breathe.

If not completely anesthetized when that drug is administered, the condemned would “experience the physical and psychological agony of suffocation,” Howell’s lawyers argued in briefs filed Tuesday.

The new drug protocol has been used four times since its adoption in September, but Howell’s lawyers argued that three of those executed were not fully anesthetized before the other drugs were administered.

The Supreme Court on Thursday also ordered the court to consider testimony from University of Miami anesthesiologist David Lubarsky regarding problems with the state’s protocol for making sure that inmates are unconscious. According to Lubarsky, the state is not waiting long enough between injections for the anesthetic to take effect. Lubarsky also testified the drug poses a significant risk for “paradoxical reactions” for Howell because he has mental health disorders and possible brain injuries.

Howell was scheduled to be executed last year but a federal appeals court issued a stay the day before he was slated to die. The stay was lifted in November, and Gov. Rick Scott rescheduled his execution for Feb. 26.

VIRGINIA – Controversial Death Penalty Bill Killed in VA Senate

february 7, 2014

RICHMOND, Va (WVIR) – Lawmakers in the state legislature have killed a controversial death penalty bill – at least until next year.

Due to a nationwide shortage of lethal injection drugs, the bill filed in the state Senate proposed using electrocution as Virginia’s secondary means of execution. The bill was met with fierce opposition by some who view electrocution as archaic, but sponsor Bill Carrico says it’s about justice.

“What about the victims and their families? What about the cruel and unusual punishment that took place there? Does anybody even think about that?” said 40th District Senator Bill Carrico (R).

“It’s quite inhumane, and Virginia would be the only state where a death row prisoner could be forced to be electrocuted,” said 31st District Senator Barbara Favola (D).

The Senate voted 21 to 19, mostly along party lines to send the bill back to committee, effectively killing it for the year.

(Source: WVIR)

STORY : Ex-death row inmate shares son’s story of forgiveness, Two years out of prison, she’s now promoting ‘Set Free’ book- Gaile Owen

2013

It’s the “normal” things that matter so much to Gaile Owens these days.

Things like walking in the park with her grandchildren, holding two steady jobs, even mundane errands around a city that is still a little foreign to her.

“You hear people say, ‘I have to do a lot of things’,” Owens, 61, said Wednesday. “My favorite thing to say is, ‘I GET to do these things.'”

That wasn’t the case for most of her life. Three years ago, Owens was preparing to be executed by lethal injection for paying a hit man to kill her husband in late 1984 after what she described as a life of humiliation and physical and sexual abuse at his hands. But with the help of her son, Stephen, and numerous advocates in the community, she was able to secure a commutation of her death sentence from then-Gov. Phil Bredesen in 2010 and her freedom from the state parole board a year later.

She has remained largely silent about the past 29 years, but that has changed with the publishing of her son’s book, “Set Free,” which documents his struggle to find meaning and forgiveness in the murder of his father and the condemning of his mother to death. Gaile and Stephen Owens will speak Thursday at a forum hosted by John Seigenthaler, former Tennessean publisher and editor and one of the Owens’ key allies in the fight to free her.

Gaile Owens spoke for the first time with The Tennessean in a phone interview Wednesday, joined by her son so they could talk about his new book. She’s still not ready to talk about the murder or the abuse she says she endured from her husband. But she wants people to know about her family’s journey of faith, forgiveness and hope.

“I think his journey is important. I think it speaks of hope for other people,” she said of her son’s book. “No one will have walked the same journey we have, but everybody has a story and everybody has got places in their life where they needed forgiveness.”

Forgiveness found

Stephen Owens said the past 30 years have been fraught with anger and confusion. He was with his mother one day in 1984 when they found his father beaten to death with a tire iron in their Shelby County home. Gaile Owens and the man she hired, Sidney Porterfield, were both convicted and sentenced to die. Porterfield remains on death row today.

Forgiveness didn’t come easy.

Stephen Owens had no contact with his mother from the time he testified against her at trial in 1986 until Aug. 23, 2009, when he finally decided to visit her in prison. In “Set Free,” he describes an overwhelmingly emotional, three-hour meeting, ending with a tearful hug. It was then that he heard words he had waited nearly 30 years to hear.

“I’m sorry, Stephen,” Gaile Owens told her son in a conversation he describes in “Set Free.” “I know I can’t change anything now, but I just need to ask for your forgiveness.”

That gave him a chance to say the words he felt God had wanted him to say for so long.

“I forgive you, mom,” he responded.

5 female death-row cases make Arizona a national outlier

february 5, 2014 (usatoday)

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930.

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009.

And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Andriano and Arias were portrayed as lying vixens, their sex lives detailed right down to their choice of personal sexual lubricants.

The DeVault case is certain to be salacious; she was a stripper and claims the husband she killed was abusive and forced her to sleep with other men. All three allege domestic violence in their defense.

Meanwhile, one of DeVault’s lovers will be confronted over child pornography found in his computer when he testifies against her.

“If it’s a woman, (prosecutors) have to defeminize her before they can humanize her,” Streib said.

It may not matter.

“Once sentenced to death, the likelihood of being executed is practically zero,” Streib said.

Death-penalty cases are rarely clear-cut; less so when the defendants are women.

ast spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces.

One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.

“The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico.

Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.

Women who kill tend to kill spouses, lovers, children and family members.

“Those cases are rarely capital cases,” she said.

And as Victor Streib added, there is a general reluctance on the part of juries to send women to death row.

“Women tend to be favored,” said Streib, a defense attorney and law professor who retired from Ohio Northern University. Streib, who has written books on female killers, also provided statistics on the subject to the Death Penalty Information Center in Washington, D.C.

According to the most recent statistics, as of January 2013, only 63 out of 3,125 inmates on death rows nationwide were women, about 2 percent. Only 14 women have been executed since 1973: four in Texas, three in Oklahoma, two in Florida, and one each in North Carolina, Arkansas, Alabama and Virginia., Texas

“What I always say when asked about this question is that there are no sophisticated studies indicating that women are treated more leniently in the capital-punishment system,” said Richard Dieter, executive director of the Death Penalty Information Center. “Their numbers are too small to draw statistically relevant conclusions. What we do know is that women commit about 10percent of murders, comprise about 2percent of death rows and account for about 1percent of executions.”

Death sentences are supposed to be reserved for the worst of the worst murderers. Each case has a unique set of facts and evidence, and there is no foolproof scientific way to make the assessment as to which are the worst. And prosecutors must find appropriate aggravating factors from a set list dictated by state statute. It’s not just a question of how horrible the murder seems to the public.

Still, the seeming randomness of the system is at times shocking: A drug cartel member cuts off the head of a rival who ripped him off, pleads guilty to second-degree murder and gets a 14-year prison sentence; a man beats his girlfriend to death, leaves her naked body in the street and is charged with second-degree murder.

Wade Bradford is accused of killing two girlfriends, one in front of a male rival in the garage of a Tempe condo; the other was found four years after her murder in a rented storage facility in the West Valley.

The first of his trials went to the jury on Tuesday. Neither case is capital.

“There may even be evidence that when women do cross the line into violent murders, they may face being punished more severely than men because their murders stand out,” Dieter said. “They are outside the expected behavior of women.”

But as Dieter pointed out, there are no studies to prove or disprove that theory.

When prosecutors seek death against women, the cases tend to be sordid. They are about money. Or sex. Or domestic violence. Or betrayal.

Prosecutors alleged that Milke, Andriano and DeVault killed for insurance money; Forde was trying to steal a drug dealer’s cash.

Andriano and Arias were portrayed as lying vixens, their sex lives detailed right down to their choice of personal sexual lubricants.

The DeVault case is certain to be salacious; she was a stripper and claims the husband she killed was abusive and forced her to sleep with other men. All three allege domestic violence in their defense.

Meanwhile, one of DeVault’s lovers will be confronted over child pornography found in his computer when he testifies against her.

“If it’s a woman, (prosecutors) have to defeminize her before they can humanize her,” Streib said.

It may not matter.

“Once sentenced to death, the likelihood of being executed is practically zero,” Streib said.

Tennessee sets execution dates for 10 men

february 6, 2014

The state of Tennessee plans to execute 10 death row inmates over the next two years after changing the drug protocol to be used in lethal injections, officials said Wednesday.

The state is scheduled to execute the condemned prisoners between April 22, 2014, and Nov. 17, 2015, the Tennessee Administrative Office of the Courts confirmed. Three executions are scheduled this year and seven in 2015.

Gov. Bill Haslam, noting that three execution orders were handed down Friday by the state Supreme Court, told The Tennessean Wednesday that the decision to seek the executions didn’t go through him. But he said he agrees with it.

State officials asked the Tennessee Supreme Court in October for execution dates for 10 inmates, the highest number of condemned people the state has ever sought to kill at one time. The court has since ordered execution dates for nine of those men. Another inmate, Nickolus Johnson, whose execution was sought separately from the other 10, is scheduled to die April 22.

Dates have not yet been set for Lee Hall, the other man in the October group, or Donald Wayne Strouth, for whom the state requested an execution date in December.

Kelley Henry, who supervises capital punishment defense cases with the Federal Public Defender’s Office in Nashville, said it was unfortunate that so many death row inmates were being grouped together. Henry and other attorneys have asked a Davidson County judge to halt the executions over questions about the drug the state now plans to use.

“Each and every one of these cases has a story that is an example of how the death penalty system in Tennessee is broken,” she said Wednesday. “They each have different stories of ineffective counsel, of evidence that was suppressed by the state, stories of trauma and mental abuse that were never presented to a jury or a judge.”

(Source: The Tennessean)

Death Penalty By Electric Chair Could Make A Comeback For US Executions

february 6, 2014 (huffington)

Virginia could revive the electric chair as a method to execute prisoners, as European companies and one major distributor in the US block the sale of drugs required for lethal injections.

 

Experiments with a new ‘cocktail’ of drugs have proved controversial so far. Last month, murderer Dennis McGuires took 25 minutes to die, and was seen gasping painfully in his last moments when he was executed in Ohio.

 

The Washington Post reported that Virginia could soon have the power to compel prisoners to the electric chair, with a new law going through the state government’s house of representatives.

At the moment, death row prisoners in Virginia are allowed to choose between lethal injection and electrocution.

 

If lawmakers block the plan, a de facto moratorium on executions could be forced by inmates, who could legitimately demand execution by lethal injection, with the state having no facilities to carry that out.

 

TEXAS – CCA Denies DNA Testing in Swearingen Case

UPDATE

 

Court Reverses DNA Testing Decision in Swearingen Case

The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.

Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.

James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.

“They remanded it,” Rytting said of the Court of Criminal Appeals’ decision. “They didn’t say DNA testing is completely forbidden.”

Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.

“Here we are, back where we started,” he said.

february 5, 2014

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen “cannot prove the existence of biological material” that could be tested. Although the defense presented to the district court expert testimony that biological evidence would “likely” be found on the pantyhose that is not enough to secure testing, the court ruled. “[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

In other words, without testing, there can be no testing.

The court’s conclusion also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes, absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered “biological evidence per se” and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter’s fingernails produced DNA from an unknown male.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

Federal prosecutors are in no mood for compromise in the Boston Marathon bombing case — at least not yet.

february 5, 2014 (newgazette)

Two brothers allegedly killed three people and wounded more than 260 others by planting bombs last April near the finish line at the Boston Marathon. Now the U.S. Justice Department said it intends to seek the death penalty if the surviving brother is convicted.

Given the sickening nature of the crime, the Justice Department decision in this high-profile case is completely understandable, even laudable. However, it’s still a long way to the execution chamber for Dzhokhar Tsarnaev, who was 19 when he was arrested shortly after the bombings.

His 26-year-old brother and alleged co-conspirator, Tamerlin Tsarnaev, was killed in a shoot-out with police. Dzhokhar Tsarnaev was severely wounded when he engaged officers in gunplay, but survived to face trial.

The big question, however, is whether a trial actually will take place. Authorities say they have collected a mountain of evidence linking the brothers to the bombings, including photographic evidence showing Dzhokhar Tsarnaev placing a backpack believed to be filled with explosives along the marathon route near the finish line.

Given the evidentiary realities and potential death penalty, defense lawyers can be expected to pursue an agreement that allows him to plead guilty in exchange for a life sentence. That’s how cases like this have played out in the past when the Justice Department has opted to seek the ultimate punishment.

If the case does go to trial, defense lawyers can be expected to argue that the plot was conceived by the older brother and that Dzhokhar Tsarnaev’s life should be spared because of the subordinate role he played.

At the same time, however, the facts indicate that the bombings were carefully planned and carried out, that the aim was to inflict maximum damage on large numbers of innocent people and that Dzhokhar Tsarnaev has not shown any remorse for his actions.

Both Muslims, the Tsarnaevs indicated they were motivated by religious reasons to strike out at America, and they allegedly did so in a way that attracted worldwide attention.

It is unclear when the case might get to trial, but if and when it does, the proceedings will be immeasurably complicated by the legalities surrounding the death penalty. Nonetheless, U.S. Attorney General Eric Holder was correct when he said that “the nature of the conduct at issue and the resultant harm compel this decision.”