With Openings Scheduled This Week, The Marathon [Bombing Case] Is Finally Set To Begin

Now that that the marathon (no pun intended) jury selection process is coming to an end in the Boston Marathon Bombing case, United States v. Dzhokhar Tsarnaev, (assuming a majority of the justices in the 1st Cir. don't agree in the next day or two to consider the defendant's motion for change of venue en banc), it's time to focus attention on what we should expect to hear in Opening Statements currently scheduled for this Wednesday. I suppose before we get there, it is helpful to explain what an Opening Statement is, and what it is not.

Whether the jury trial is being conducted in state or in federal court (as here), Opening Statements in criminal cases are an opportunity for each side to explain to the jury what they expect the evidence in the case to be, and to show: what they want the jury to be alert to and mindful of; who they will be hearing from; and ultimately what they want the jury to conclude and decide. Opening Statements are often described as "road maps of the evidence" or a "table of contents" or "Coming Attractions." They are an opportunity for both sides to set the tone, frame the issues, and get the jury's attention.

As Judge O'Toole will painstakingly instruct the jury, Opening Statements are not evidence, as no evidence will have yet been presented, and no facts determined or accepted, at the time they are given. Openings are also not argument, and although moderate leeway may be given (more often to the defense), Judge O'Toole will admonish either party to refrain from arguing if he believes that's what they are doing. It is also not an opportunity for the parties to instruct the jury on the application of the law as, again, no evidence has been offered and legal instruction is solely for the judge to give, anyways.

As with criminal jury trials in state court, the prosecution (government) always opens first. This is because the burden of proving guilt (beyond a reasonable doubt) consistently remains with the government. After the government has given its Opening Statement, the defense may open, but doesn't have to. In fact, the defense actually has three options: give their Opening immediately after the government's; defer their Opening until the government's case has concluded and their case (if they have one) begins; or decline to give any Opening Statement at all (because, the burden of proof is always on the government, the defense has no obligation to do, or say, anything).

Judge O'Toole is known for running a tight courtroom. As with many of his colleagues on the U.S. District Court bench in Boston, he will likely impose time limits for each Opening. While it is not inappropriate to object during the other side's Opening when it's being given, objections are rare and the preferred modern practice is to reserve any objections for a side-bar conference out of the jury's hearing immediately after the Opening is finished.

While experienced trial attorneys sometimes debate the necessity and importance of Opening Statements, I personally believe they can be extremely helpful, not just for the principal purposes already mentioned, but also as a way to establish an early rapport, or connection with the jury; to get jurors "already thinking" about things you want them to stay focused on (even though the judge will instruct them to "keep an open mind"); and as a way to head-off, explain away, or place in context, "inconvenient truths" or deficiencies, before the other side inevitably mentions, and tries to exploit them, as though they "really amount to nothing."

So what do I expect to hear from the government in terms of its Opening Statement? Well, there is no question that whatever they do say, and how they say it, it will include a methodical and painstaking recitation of so much of the evidence regarding (what they believe proves) Dzhokhar's criminal acts, criminal intent, complicity, and conspiratorial liability (and shared intent) with that of his deceased brother, Tarmerlan, as will convey to the jury from the outset the impression their case is overwhelming and Dzhokhar's guilt beyond question. (So much for "keeping an open mind"!) The bigger question is how the government is likely to do this. Will they opt for a dramatic real-time narrative, perhaps creating for the jury's minds-eye a scene of Tamerlan and Dzhokhar loading the pressure cookers with shrapnel, ball-bearings, powder, and improvised detonators, loading them into backpacks, synchronizing cell phones, putting on their now signature respective black and white hats, mingling with finish line spectators and placing a backpack nearly at the feet of 8 years old Martin Richards; then "walk" the anticipated evidence backwards and forwards from there? Or will they start by letting the dramatic film footage of bombs detonating at the finish line "in living color" and of the chaos, triage, panic and confusion immediately thereafter speak for themselves? Will they also present time-lapse video surveillance of "white hat" and "black hat" at the scenes of each crime and still-photo images of them walking away from the blasts as others run towards them? And/or will the courtroom be darkened in order for the jury to watch, as most assuredly each of them did nearly two years ago, the shootout in the early morning hours of April 19th on a deserted Watertown side-street , with the sound of desultory gunfire echoing off the courtroom walls. All are both acceptable, as well as possible, since Openings aren't simply limited to Tell, but may also permissibly include Show.

Or will the government opt for a more traditional and less dramatic, simple, clinical recitation of the underlying facts of the case, starting with the crime, segueing into the investigation, proceeding next to identification, and ending with apprehension; back-filling after all that with references to related evidence that it believes will help the jury understand how we got there? At this point, it's difficult to know which approach the government will follow, but I'm guessing since it can be easy to "lose a jury" early with too much technical discussion about the underpinnings of scientific and forensic investigation, we'll see somewhat of a combination of both. I also expect the jury will be shown, close-up and blown-up, the jihadist writings scrawled on the inside of the boat where Dzhokharr Tsarnaev was found hiding to make clear that the acts were politically motivated to punish the United States and its citizens (i.e., "This is a domestic terror case!"), and told of his purported hospital-bed statements ( if admitted) to the FBI about him and his brother obtaining bomb-making information from an Al Qaeda-related website and how the bombs were placed, and further bombings planned in New York's Times Square, in retaliation for U.S. Military action in Afghanistan and Iraq, to make sure the terror connection is thoroughly underscored and understood. The government will also provide some type of road-map to help the jury know which category or segment of evidence will relate to which of the thirty (30) separate counts in the indictment, and we will finally learn from their Opening if any of the related cases: United States v. Kadyrbayev; Tazhayakov; Phillipos; Matanov; and Silva have led to cooperation.

Throughout their Opening, the government will be asked to walk a fine line in trying not to argue, trying not to inflame emotion, and taking care not to open doors that prior rulings have determined must remain closed to the jury's consideration. Despite this, their number one goal and objective (despite all instruction to the contrary) will be to subliminally message the jury that the evidence is so substantial as to leave no doubt about the defendant's guilt before a single shred of it is presented.

In terms of the defense, this might be the rare case where they either think about deferring their Opening or declining to open altogether, given the bifurcated process (phase I: guilt; phase II: punishment) they are facing. However, because it appears they are planning to contest guilt by proceeding as scheduled on Wednesday (instead of electing to concede it and opting simply to litigate the question of life vs. death in the penalty phase, alone.), I'll be surprised if they don't open, but doubt we'll see them come out swinging. The emotions are too raw and the facts, circumstances and connections are too close to home for them to risk alienating the jury by doing so.

Instead, I think they are more likely to use it as an opportunity to float "trial balloons" regarding topics already telegraphed in some of their pretrial discovery motions along the lines of Dzhokhar having been "brain-washed" by his older brother, Tamerlan. Dzhokhar being frightened of his older brother and afraid to say no. Dzhokhar being young and impressionable and easily led astray. (Get ready to count the number of times his age is mentioned or referred to.) No, they won't be announcing an insanity defense to the jury. The "clear and convincing" standard in federal court makes it nearly impossible, and the burden of proof being on the defendant is too much of a give-back to make it practical—besides, they would have already had to have given notice of their intention to do so, which we all would have heard about by now. Although closer to viability, I also don't think they will be alerting the jury to the defense of Duress, given too much contrary evidence to rebut it. Rather, I think they will simply try to introduce certain themes now, that they are more likely to hit again harder during the penalty phase should their client be convicted on any one of the 17 counts allowing for the death penalty, in an effort to get the jury thinking about, and familiar with, potential mitigation upfront.

I also think, taking a cue from some isolated testimony in United States v. Phillipos regarding things the FBI still hasn't determined, there will be some suggestion of an incomplete, non-thorough, sloppy investigation; which will be characterized as "a rush to judgment.". Don't look to the defense to push this too far, though, as I'm sure they understand there is only "limited mileage" there. Rather, expect a lot of reminders to the jury about keeping an open mind, being fair, affording even their own client the presumption of innocence, listening to all the evidence before making any judgment, holding the government to their burden of proof from start to finish and, perhaps, even trying to out-Patriot the prosecutions by "wrapping themselves in an American Flag" while talking about our country being uniquely premised upon equal protection of the law and the same standards of justice being afforded to every person, regardless of who they are and what they are accused of.

Both trial teams are comprised of bright, circumspect, experienced litigators. I could be completely wrong in my analysis of the projected substance, but I have no doubt I am right to expect highly polished and professional presentations from both sides; and I continue to expect to see it each ponderous step of the way for the next 3 ½ months of actual trial testimony.