As Kent points out, Prof. Dershowitz is correct in thinking that the Boston Marathon bomber prosecution might be the worst case to try to get the death penalty ruled unconstitutional since Timmy McVeigh.

About a year ago, roughly three weeks after the bombing, Prof. Dershowitz and I, appearing on the Piers Morgan show, debated whether the death penalty was an apt punishment for the killer.  A tape (unfortunately in annoying one-minute segments) is here.  As I pointed out, echoing the points Kent makes, the surviving bomber, Dzhokhar Tsarnaev, is actually a case study on why we should retain capital punishment.  I noted that Dzhokhar committed: terrorist murder, multiple murder, murder of a police officer, and child murder, blowing to bits an eight year-old boy. (His mother and younger sister had so much shrapnel in them that they were unable to attend the boy's funeral a week later).

Of course, his lawyers know something about litigation strategy too.  That they're throwing this Hail Mary so soon in the case tends to confirm something I've suspected for a long time:  They can't find a shrink dishonest enough to testify that Dzhokhar is nuts, so they're headed into this trial holding a handful of nothing.