The Tsarnaev Death Penalty Case — A Tale of Two Trials

In the punishment phase of United States v. Dzhokhar Tsarnaev, with the Government having rested its case, and the defense having wrapped up the first week of theirs, (and with one juror home sick but presumed available again on Monday), I'm being asked two questions: What's left for the defense to do? And, Do I think he will "get the death penalty"?

As far as the first question is concerned, no, I'm not a member of the Tsarnaev defense team. Nor am I privy to internal discussions about defense strategy. Nonetheless, they've not only been completely transparent about their plans, literally from the start of the guilt phase of the trial, but have basically been floating them out there as trial balloons (to get the jury familiar with, and thinking about them) from the moment they made their initial opening statement. This resulted in their client being convicted on all 30 counts of the indictment against him, including the 17 of those 30 counts that allow for imposition of the death penalty. Frankly, given what we now know to be the evidence their client was facing, the strategy (which included not cross-examining any victims and/or not trying the patience of the jurors) was sound, professional and borderline brilliant. In other words, from the outset, the Tsarnaev defense team's objective was not to dispute the charges; it was to save their client's life.

That the defense spent the first part of this past week focusing the jury's attention on their client's older (deceased) brother Tamerlan's influence, extremism, control, and radicalization was no surprise whatsoever. The defense has been alluding to this, not just throughout the guilt phase – to the extent Judge O'Toole allowed it, but also during the pretrial discovery phase in the nature and contents of many of their filings. That the majority of last two days has been devoted to the so-called "humanization" of their client has been no surprise either. Doing such is an integral part of establishing mitigation factors. (Among the applicable aggravating factors the jury must consider are whether the prosecution has proven: death during the commission of another crime; multiple killings or attempted killings; grave risk of death to additional persons; heinous, cruel, or depraved manner of committing the offense; substantial planning and premeditation; and vulnerability of the victim(s). The mitigating factors the defense are relying upon to rebut the same, only one of which needs to be determined by one juror is not substantially outweighed by the aggravating factors include: impaired capacity; duress; minor participation; equally culpable defendants; no prior criminal record; severe mental or emotional disturbance; and other factors – frankly, just about anything else the jury finds deems relevant.) This is why the jury has been hearing (as I predicted weeks ago they would) from grammar school teachers, former high school friends and classmates, and folks who may have seen or witnessed his interactions with his older brother, especially those who could articulate the contrast between the two brothers. This last is why the jury also heard evidence from medical personnel calculated to distinguish Tamerlan's rage, struggle, and defiance, even while mortally wounded, from his younger brother's compliance, cooperation, and seeming supplication when he was likewise receiving emergency medical care after his own apprehension.

The Tsarnaev family is now here from Russia, and under the watchful eyes of Homeland Security and their "Advanced Parole Program" which subjects them to 24/7 surveillance by FBI agents and GPS monitoring. With the defense having planted preliminary seeds through some of the foregoing testimony, I now expect these family members will testify next week not just to their knowledge of Dzhokhar Tsarnaev's life story, and his family dynamic and dysfunction, but also to his all but parental abandonment (and dare I say "neglect") in favor of his older brother. Don't be surprised if the end-product sounds like something more out of Charles Dickens than Tom Clancy by the time they are through.

After that? Well it's possible the defense will still try to push the issue of Tamerlan's alleged involvement in an uncharged/unsolved triple homicide in Waltham on the ten year anniversary of 9-11 as a number of pretrial discovery motions suggested they hoped to do. But, I'm guessing that angle will be ultimately dropped in light of Judge O'Toole's clear directive that proof that Dzhokhar knew about it is needed before he will consider allowing it. Instead, I still expect the defense to end with a degree of scientific and medical testimony regarding recent studies about the formation of the human brain which reveal it is not fully developed until the age of 25, and that male brains develop more slowly than female brains, all of which will circle their presentation, and the jury's attention, back to the one major factor the defense does have going for it: their client's age – 19 at the time of the offense conduct, 21 now. (I suspect this is why they allowed more of the now infamous jailhouse video to be played than their client merely "flipping off the camera" — they want at least one juror to "see" their client acting as a stupid teenager, if only for an instant.)

But for possible rebuttal by the prosecution, I believe that will be the end of either side's presentation of evidence and the case will move on to closing statements by both sides. During the defense's closing, I expect they will try to link all of their themes into one integrated anthem of age, influence, abandonment, and isolation, and place their client at the mercy of the jury, with one last emphatic reiteration of their entreaty that "life in Super-Max Prison is worse than death for our client."

So what do I think will happen? Will he get the death penalty? Not being one of the 12 person jury; not having sat through the entirety of both phases; not having been part of the initial decision to find him guilty; not having had the opportunity to observe the defendant each and every day of the proceedings; not having directly, and in real-time, heard from any of the victim's; not having seen all the evidence; and certainly not knowing what's inside the mind of each respective juror or knowing either their individual and now collective experiences, I can only guess. I do know that a veteran court-watcher who has personally observed the majority of both stages recently told me he thinks "[Dzhokhar]'s in trouble" based on the jury body language. My instinct is not to be so sure about that.

I've repeatedly said from the start of these bifurcated proceedings, "All it takes is one!" Because the jury must be unanimous in its decision to impose the death penalty, a single contrary vote or opinion means an automatic sentence of life without any possibility of parole. This is not like a "hung jury" situation either, where one contrary vote or hold-out results in a do-over. Here, one dissenting vote means one thing: no death sentence. Don't think the defense team hasn't been playing to that notion; they have. They've known from the start all they need is that proverbial "one" and have been doing all they can since the start of jury proceedings to hit on that single note that plays to the would be juror that can make mean the difference between life and death for their client.

I do not believe that single note is going to be big brother Tamerlan's influence. From choosing to place of one of the two bombs literally at the feet of children, the casing of MIT police officer Sean Collier's parked car, the joint venture carjacking, and personally throwing of pressure-cooker bomb(s) at police, there's been more than enough to prompt the jury to hold Dzhokhar responsible for his own actions; which the jury clearly signaled their intention to be in their sweeping 30 out of 30 guilty verdicts against him.

By contrast, I do think the unpleasantness of life in super max prison (in Florence, CO) versus death could well resonate with at least one juror. No, I did not think it was coincidental that the Boston Globe led off its Sunday Edition with a front page article about life in super max one day before the Tsarnaev' defense "opened" on the exact same topic (which not only raises red flags about press leaks, but also whether lawyers might be using the media to influence a jury that is supposedly restricted from media access). Yes, I do think there is a bit of an Ole Br'er Rabbit "please don't throw me back in the briar patch" element to the super max argument. (And yes, the Globe laid it on a bit too thick for me when they somewhat disingenuously tried to contrast the perks and privileges inmates receive while on "federal death row" in Terre Haut to the stark barren reality of life in federal super max.) But still, the argument is compelling.

From my sideline analysis, that, plus the sense that it's very different to say you are open to imposing the death penalty (which all 12 jurors needed to say in order to become so-called death qualified for this case) and coming to the realization during deliberations that your single vote is the difference to between life and death, could well be the difference. (Remember, the defense made sure that each member of the "death-qualified" jury would also be open to life without the possibility of parole, if circumstances warranted, as well.)

Again, I can only guess. If pressed, though, I'm going to say because "all it takes is one," either the I-don't-want-to-play-God dynamic, or the "death is too good for him; life is in prison is worse" analysis, is going to result in a life sentence in this case (with either perspective informed and determined by recognition of his relatively young age at the time of the offense conduct on which he stands convicted).