Federal prosecutors in Massachusetts, where the death penalty was abolished nearly 30 years ago, face the rare prospect of two simultaneous capital cases for unrelated killings that happened more than a decade apart.

Prosecutors under the direction of U.S. Attorney Carmen Ortiz in Boston have a Jan. 31 deadline to announce whether the government will seek to execute Dzhokhar Tsarnaev, jailed for his alleged role in carrying out the attack at the Boston marathon in April.

In a separate matter, the U.S. Court of Appeals for the First Circuit this summer struck down the capital sentence for convicted killer Gary Lee Sampson, forcing prosecutors to decide whether to pursue the death penalty a second time. Sampson’s case marked the first-ever federal death sentence in Massachusetts, where state-based capital punishment was banned in 1984.

U.S. Department of Justice rules give the attorney general the final say on whether to seek the death penalty in any federal case. Attorney General Eric Holder Jr. has not said whether prosecutors will seek death against Tsarnaev. Ortiz declined to comment.

“To take on two capital cases at once, with what is by U.S. attorney standards a relatively small office, it’s something that no one is anxious to do,” said David Hoose of Sasson Turnbull Ryan & Hoose in Northampton, Mass., who defended a woman named Kristen Gilbert in 2001 in the first federal death penalty case in Massachusetts. “I think we’re kidding ourselves to think these sort of practical considerations don’t come into play.”

Gilbert, a former nurse, was convicted on charges that included first-degree murder and attempted murder for injecting patients with fatal doses of epinephrine. The jury deadlocked on whether to impose the death sentence and opted instead for mandatory life imprisonment.

The government has not said whether it will seek capital punishment this time around against Sampson, who was sentenced to death row in 2003 after pleading guilty to killing two drivers after two separate carjackings. The First Circuit in July, citing juror misconduct, vacated the death sentence. Prosecutors last month told the appeals court that the government will not ask for a rehearing.

“They have to commit themselves to probably a multimillion-dollar prospect just to get a death sentence and hope it sticks. It’s time and money over a long period of time,” said Richard Dieter, executive director of the Death Penalty Information Center. “I think they pick and choose their cases accordingly.”

Scott McCloskey of Plymouth, Mass., whose father was one of Sampson’s victims, told The Boston Globe in September that “we’re not ready to throw in the towel. He was found guilty, he got the death penalty, and that’s the way it should be.”


Tsarnaev is accused of setting off two bombs near the Boston Marathon finish line on April 15 with his late brother, Tamerlan. Tsarnaev is also accused of killing a Massachusetts Institute of Technology police officer while he and his brother tried to escape capture several days after the blasts, which killed three spectators and injured dozens of others. An assistant U.S. attorney in Boston, William Weinreb, said in recent court papers that the charges against Tsarnaev arose from a “terrorist killing spree.”

Prosecutors in Ortiz’s office have dedicated extensive resources to the case. At a hearing in November, the government told U.S. District Judge George O’Toole Jr. that Tsarnaev could face trial next fall. The prosecution projected a 90-day trial on the merits and a 60-day sentencing phase.

During that hearing, Timothy Watkins, an assistant federal public defender for the District of Massachusetts, countered that a 2014 trial would be a “rocket schedule” for a case this complex.

Tsarnaev’s defense lawyers recently traded barbs with prosecutors over the scope of information the government has disclosed. Tsarnaev’s attorneys, including death penalty expert Judy Clarke of San Diego’s Clarke & Rice, and Miriam Conrad, the Boston federal public defender, said prosecutors adopted an “open file” disclosure policy in the death penalty case against Timothy McVeigh.

The lawyers for Tsarnaev said the government’s approach in the McVeigh case was “in stark contrast to the government’s close-to-the-vest approach to discovery here.” Tsarnaev’s attorneys in September said the defense team was “in the early stages of independent investigation that literally spans the globe.”

There’s sparse data on how much it costs to mount or defend a federal death penalty case, but a federal study in 2010 pegged the median defense costs for the two capital trials in Massachusetts between 1998 and 2004 at $1.2 million.

Studies suggest that the government spends more than the defense in capital cases, said David Bruck, who directs Washington and Lee University School of Law’s death penalty defense clinic, the Virginia Capital Case Clearinghouse. The cost of a death penalty case, in dollars and time, is “always going to be a huge issue,” said Hoose, the criminal defense lawyer.

Although federal death penalty decisions are ultimately up to the U.S. attorney general, the Justice Department has given “a great deal of deference” to the local prosecutors in the Obama administration, Hoose said. Likewise, he said, a U.S. attorney will often defer to the wishes of a victim’s family.

“It’s very difficult for a prosecutor to not seek death if victims are really vociferously demanding it,” Hoose said.

Contact Sheri Qualters at squalters@alm.com.