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Anchored by Jake Tapper, The Lead airs at 4 p.m. ET on CNN.

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May 2nd, 2013
06:32 PM ET

Death penalty not 'off the table' for Tsarnaev

The man who put American jihadi John Walker Lindh behind bars told CNN's Jake Tapper Thursday Dzhokhar Tsarnaev still has to worry about receiving the United States' harshest sentence for criminals: the death penalty.

"I don't know that it will be taken off the table," David Kelley said.

The former prosecutor said two things will factor in to the federal attorneys trying the younger Tsarnaev, charged with using a weapon of mass destruction and killing three people when he and his brother, Tamerlan, exploded pressure cooker bombs near the finish line of the Boston Marathon, decide to seek the death penalty. First, Kelley said, prosecutors will evaluate Tsarnaev's cooperation with the investigation.

The other factor – and the more difficult one to determine – is how much Dzhokhar was influenced by his brother, the alleged mastermind of the double bombing. Kelley asserted that the prosecutors' decision to seek the death penalty could hinge on the extent to which they feel Dzhokhar was drawn into the plot through the influence of Tamerlan, who, according to Kelley, "seems to be the key, main actor."

On the other side of the legal aisle, Tamar Birckhead, who defended shoe bomber Richard Reid in 2002, said the main challenge for the federal public defenders representing Tsarnaev will be the media maelstrom surrounding the case.

"It can certainly be overwhelming," Birckhead said, "but this is what we do. It's the bread and butter of what we do."

Aside from the legal challenges of representing this kind of high-profile client, the former public defender said the most strenuous part of trying a case like Tsarnaev's is the added public scrutiny.

"The only difference, in terms of the lawyering here, is contending with the press attention," Birckhead said.

While representing Reid, Birckhead found herself authoring her own press releases after pouring through mountains of legal briefs related to the case. Now a professor at the University of North Carolina, Birckhead has worked in the past with one member of Tsarnaev's defense team, Miriam Conrad. According to Birckhead, Conrad, a federal defender out of Boston, won't have the luxury of press liaisons or communications experts to help satisfy the demands of the news-cycle.

"They've got a whole lot on their plates right now, in addition to, you know, the basic tasks of putting on a defense."

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