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Death penalty hangs over Dzhokhar Tsarnaev trial

Defense attorneys Timothy Watkins (left) and William Fick leave the courthouse Monday.John Tlumacki/Globe Staff

Once testimony begins, we’ll get a good idea of some of the things accused Boston Marathon bomber Dzhokhar Tsarnaev believes in. But if his appearance Monday in federal court is any indication, we can assume he does not believe in that old defense tactic of cleaning up for the jury.

In many cases, certainly in most murder cases, the transformation that takes place between the time someone is arrested and the start of the trial is often nothing short of remarkable.

At the least, a haircut, not to mention a suit and tie, is in order. It’s all about presenting a nice, wholesome image to jurors, so they might think, even subconsciously, “Wow, how could that nice young man do something so terrible?”


Tsarnaev, 21 years old and on trial for his life for doing terrible things, couldn’t be bothered with such bourgeois niceties. He swanned into the jury assembly room on the second floor of the Joe Moakley courthouse, looking like something that the cat brought in.

Bird’s nest hair, scraggly beard. Dark sweater. His cream-colored slacks suggested he does not subscribe to that old adage about not wearing white after Labor Day.

He gave the impression of a bored college student, sitting through a lecture only because attendance was required. He didn’t tug at his beard like a wise man so much as an idle one.

If his mother was there, she would have told him to stop playing with his beard.

Actually, having seen the excitable Mama T in action, I think she’d probably be yelling something about the sheer unfairness of her son having to go through this whole charade in the first place.

According to US District Judge George O’Toole, who presided over the first day of jury selection, Monday’s preliminaries were all about fairness, about finding jurors who could fairly and impartially hear the case. Two sets of potential jurors listened to O’Toole wax philosophic about the sanctity of the jury system, how serving as a juror is both a civic duty and democratic honor.


When the judge noted that such service could stretch through the next four months, I’m guessing some of those potential jurors were thinking about things other than duty and honor.

The opposing legal teams, the defense on the left, the prosecution on the right, flanked the judge, looking like “Family Feud” teams, waiting for the real action to begin, betraying nothing.

The prospective jurors were handed questionnaires and the truth is they could check one box and protect themselves against the prospect of spending the whole winter and part of the spring in Courtroom 9 at the Moakley. That check would suggest they can’t, in good conscience, vote to impose the death penalty.

That’s the get out of jail card, so to speak, for potential jurors. Given the demographics of Eastern Massachusetts, we can presume that at least half of those in the jury pool will check that box with great legitimacy. Maybe more.

Of those who say they have no problem with the death penalty, they’ve got to indicate they’re also willing to consider a sentence of life in prison if Tsarnaev is convicted.

The prospective jurors filled out their forms like prospective college students, marking their SATs. Like SAT takers, some were faster than others. When they stood to stretch, the prospective jurors could look past the assembled reporters, separated from them by a fishbowl-like glass, out to the harbor, where Coast Guard gunboats idled in the harbor, telling them, even if the judge didn’t, that they are being asked to be part of a jury that will decide something very important.


The specter of the death penalty is the elephant in the courtroom. It’s de rigueur to talk about the presumption of innocence and the need to let the trial process play out. But it’s impossible to sit in the courthouse and not think that we’re going through the motions, that it’s not guilt or innocence that this is all about so much as punishment, that Tsarnaev’s lawyers aren’t girding to get him acquitted as much as they are focused on saving his life.

It’s also inescapable to conclude that all the anguish and misery that will be recounted in this, the winter of our legal discontent, could be averted by simply having Tsarnaev plead guilty.

Tsarnaev’s lawyers have openly wished for this. During a hearing last September, David Bruck, one of his lawyers, said that if the government didn’t seek the death penalty, the case “would have been over a long time ago.”

All those reports about the defense being willing to take a plea in exchange for the government dropping the death penalty are true, with one huge caveat. The defense would be required to offer some new information that wasn’t available when US Attorney General Eric Holder authorized prosecutors in Boston to seek the death penalty last January.


Like Dzhokhar Tsarnaev’s beard, that elephant doesn’t appear to be going anywhere soon.

Kevin Cullen is a Globe columnist. He can be reached at cullen@globe.com

Clarification: This story was clarified to reflect that defense and prosecuting attorneys sat on each side of the judge rather than before him.