Boston Herald: Full Court Press: Youth has been no excuse

Wednesday, October 29, 2014

By: Bob McGovern

Jurors didn't buy Robel Phillipos' too-stoned defense or Azamat Tazhayakov's argument that he was a "good kid" - and that could be bad news for the Tsarnaev defense team's anticipated argument that accused marathon bomber Dzhokhar was an impressionable youth controlled by his now-deceased older brother Tamerlan.

When it comes to cases related to the bombings that left two young women and a small boy dead, with scores maimed and seriously injured and that led to the subsequent killing of an MIT police officer, it doesn't look like Boston juries are willing to buy claims of youthful indiscretion.

"It would absolutely be a concern for his attorneys," said Peter Elikann, a defense attorney not involved in any of the Boston Marathon cases. "The juries seem to believe that while these may be young, impressionable men, they still should take responsibility for their actions. The fact that they made dumb choices does not seem to win them a pass."

That is most likely to spell trouble for Tsarnaev, who will likely try to pull at jurors' heartstrings if he enters the death-penalty phase of his upcoming trial.

"Once he is found guilty, he might get some consideration if he was just a foolish, impressional dupe," Elikann said. "However, the public and the juries don't really seem to look at these young men as just foolish dupes. The juries and the public seem to think that they are old enough to be responsible."

Sometimes immaturity will fly with jurors in more run-of-the-mill cases that you would see in state court - underaged drinking, a bar fight and the like. However, those charged with doling out verdicts in the marathon bombing cases are being presented with greater consequences.

"The defense is going to have a very uphill battle based on the nature of these charges, and the fact that deaths and serious physical injury occurred," said Brad Bailey, a criminal defense attorney and former prosecutor, also not involved in any of the cases. "Tsarnaev's defense has to realize that interjecting the issue of terror really gets the jury's attention."

Tsarnaev's defense team will likely run their potential defenses by focus groups to gauge public reactions, according to Edward Schwartz, a Boston-based jury consultant not involved in the case.

"If you are going to use a defense which hinges on reduced culpability based on being under the influence of another, you need to do it in a way that respects the intelligence and the understandable skepticism of the jury," Schwartz said. "If the jurors feel that they're being insulted or disrespected by the theory, they're not going to listen."

Source: Boston Herald: