If you’re keeping score at home, Dzhokhar Tsarnaev’s defense lawyers have already established that he was very good to babies and dogs, all part of their attempt to save him from the death penalty.
They hit the trifecta on Wednesday, when they got somebody to take the stand in federal court and say that he was nice to special needs kids, too, volunteering to chaperone them at a prom when he was in high school
But as we all try to figure out whether any of this is getting through to the jury, a guy who looks like Wilford Brimley took the stand and forced the issue at hand: are jurors going to sentence Tsarnaev to a gurney in Terre Haute, Ind., or the nation’s toughest prison in Florence, Colorado?
Because when you strip away everything, that’s what’s been going on for the last few weeks, since Tsarnaev was convicted of all 30 counts stemming from the Boston Marathon bombing, 17 of which carry the death penalty. The only question to be resolved is whether he is going to be sentenced to death or sentenced to life in prison without parole, because there’s no third option.
Mark Bezy, who Wilford Brimley should play in the movie, is a career federal prisons official, someone who finished his career as the warden of the federal penitentiary in Terre Haute that houses the federal death row.
The defense put Bezy on the stand basically so at least one of the jurors can say no to the death penalty in the comfort of knowing Tsarnaev will be sent to a prison where there is no pretense of rehabilitation, where the only thing on the menu is punishment.
Under the questioning of defense attorney David Bruck, Bezy wrinkled his bushy mustache and introduced the jury to the concept of SAMS: Special Administrative Measures. SAMS, which must be renewed each year, limit the ability of inmates to write and receive letters, receive visits, interact with the media and have contact with other inmates.
Bezy said that in Tsarnaev’s case, it is up to the FBI and the US Attorney to request these restrictions, and it is up to the Attorney General to decide.
Bezy said the US Bureau of Prisons has a specifically designed prison to handle inmates whose freedoms are severely curtailed under SAMS. The ADX, or Supermax, in Colorado.
At this point, for the third time by my count, David Bruck put up on the video screen in the courtroom an aerial shot of the ADX, surrounded by snow and mountains the prisoners can’t see, looking for all and sundry like a gulag in Siberia.
Bezy suggested that someone like Tsarnaev would end up in the H Unit at the ADX, a special security cellblock that is home to so many others who have used bombs to terrorize and kill. Since 2002, Bezy said, 33 out of 34 men convicted of terrorism offenses have been sent to the H Unit. The other one is in a medical unit.
Bezy also conveniently pointed out that only 27 of the 34 H Unit cells are occupied right now. The implication was clear, like a “two chairs, no waiting” sign at a barber shop: sentence Dzhokhar Tsarnaev to life and he can move right into the H Unit.
Even if the government chose not to renew the SAMS, Bezy believes Tsarnaev would stay at the ADX because his case falls under the “broad publicity” category the Bureau of Prisons uses to justify keeping an inmate in a highly restrictive setting.
Under the special restrictions, he’d get two phone calls a month, only to immediate family. Only immediate family could visit, and that would involve talking over the phone, separated by thick glass. No contact with the media.
When Steve Mellin, the prosecutor, stood up to cross-examine Bezy, the urgency in Mellin’s voice, the tone, the aggression, suggested that he knew this was a very important moment in the penalty phase. That for all the nice things said about Tsarnaev by his teachers and aunts and cousins and classmates, the real question at hand is what kind of punishment will satisfy jurors who know he murdered and maimed. The prosecution realized the defense was offering jurors a tantalizing reason to sentence him to life.
“You never worked at the ADX did you?” Mellin asked.
Bezy allowed that he hadn’t.
Mellin was dismissive of Bezy’s claim to have toured the Colorado prison last month, saying he was merely in the control tower, that Bezy wasn’t allowed in the cellblocks. In fact, Mellin was dismissive of just about everything Bezy claimed to know about the ADX.
“I’ve been there quite a few times,” Bezy insisted.
Mellin pointed out that even if the US Attorney’s office and the Boston FBI office want to maintain the SAMS indefinitely, the Attorney General isn’t obligated to follow their recommendations. Mellin said there had been modifications to the SAMS restricting Tsarnaev visits and communications while he’s been held at Fort Devens leading up to and during his trial.
Mellin said Bezy couldn’t predict how long there would be SAMS restrictions in Tsarnaev’s case.
“I’d say it’s going to be there for a while,” Bezy said.
But he didn’t say forever. And that may be what one or more jurors was hoping to hear.
Mellin said some convicted terrorists have moved out of the H Unit, into general population at the ADX. His implication was clear: Tsarnaev could, too, with good behavior.
But as much as Mellin insisted there’s no guarantee Tsarnaev would stay in the most restrictive setting in the most restrictive prison in the nation, Bezy insisted there’s no guarantee he can work his way out of solitary confinement.
The day’s testimony ended, like a particularly punishing round of a prize fight. Both men will be back at it Thursday morning, knowing that just about everything is still up for grabs.