The defense strategy for accused Boston Marathon bomber Dzhokhar Tsarnaev is simple – get to the punishment phase and try to save his life.
In opening statements, Tsarnaev’s attorney told the jury his client was guilty of murder, of detonating one of the two pressure cooker bombs. This is a move that, in the face of overwhelming evidence of that fact, is designed to gain credibility with the jury. They have also chosen to limit cross examine of witnesses and be extremely careful in deciding what evidence to challenge. The result has been a fast-paced trial that allows the defense to preserve their integrity for the penalty phase. The defense is concerned with only one thing: saving their client’s life. They have been explicit about this from the beginning, offering to plead guilty in exchange for a life term. The prosecution rejected those settlement overtures. Now, a win for the defense is life in prison without the possibility of parole.
For the prosecution, the challenge is creating the narrative that Tsarnaev is evil, that he’s a cold-blooded killer who, along with his brother, planned and executed the worst terrorist attack on U.S. soil since September 11, 2001.
Casting Tsarnaev as evil is not a stretch for the prosecution. Testimony from victims, many permanently maimed from the bomb blasts, gave jurors a graphic view of what Tsarnaev admits doing. It’s gut-wrenching and effective. Seeing and feeling the effects of a terrorist attack can be hard for jurors to set aside when asked to spare the life of the person prosecutors call evil.
A major concern for defense lawyers in death-penalty cases is the preservation of credibility with jurors. That’s just one of the reasons why it’s standard practice for there to be two lawyers for the defense in capital cases. One lawyer will have primary responsibility for the “guilt” phase, vigorously challenging the evidence and arguing for an acquittal. Then, failing vindication, a second lawyer will take the lead on the “penalty” phase, arguing that there are mitigating factors such that the defendant’s life should be spared. Conventional wisdom is that if the jurors reject the first lawyer’s arguments in the guilt phase, they won’t be open to their arguments in the penalty phase. It is this same rationale that has Tsarnaev’s lawyers treating the witnesses with kid-gloves, hoping against hope that the evil of his acts don’t taint them and their arguments.
Given the blood that was spilled in Boston on those tense, violent days, no amount of “no questions, thank you” may be enough to save Tsarnaev’s life. At some point, in our system of justice, a jury trial isn’t about the discovery of truth, it is simply about “governmental prosecution quality control,” making sure the system functions fairly as it progresses to it’s inescapable, inevitable, obvious conclusion.
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