Dzhokhar Tsarnaev’s defense attorney, Judy Clarke, stunned a packed courtroom in Boston this week when she admitted that her client committed the Boston Marathon bombing and is responsible for a “series of senseless, horribly misguided acts.”
Clarke then articulated the question on everyone’s minds: “Why a trial?”
She did not answer the question, but legal specialists say Clarke’s admission seems to be part of a psychologically-astute strategy that is sometimes used when defendants face overwhelming evidence against them, and they face the death penalty.
In such cases, they say, the defendant is generally advised not to plead guilty because that removes many legal options for appeals.
Allowing jurors to reach a verdict also provides them with the cathartic opportunity to unanimously convict a heinous criminal, but still show some compassion during the second stage of the trial when jurors must decide on a sentence.
“Some juries come to a guilty verdict, but then exercise leniency in the second phase,” said Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School. “If you plead guilty, you lose that compromise possibility.”
In federal death-penalty cases, juries must go through two related trials: the first to decide if the defendant is guilty and the second to decide if the defendant, once found guilty, should be sentenced to death.
George Kendall, a New York lawyer who has handled hundreds of death-penalty cases, including for the American Civil Liberties Union, said defense attorneys in these cases face a Herculean challenge in trying to curry favor with a jury that is likely to loathe everything about their client — and perhaps their attorneys.
Kendall said the defense attorneys must do everything they can to portray themselves as sensible and reasonable, such as admitting their client’s culpability, if they want to be truly heard by the jurors at the sentencing phase of a trial. He said they cannot come off as angling for legal loopholes or trivial errors that will let off a guilty client.
“That lawyer then has zero credibility,” Kendall said. “You’re damaged goods.”
Clarke surely has experience to guide her. She is one of the nation’s top defense lawyers on capital cases, with clients including Unabomber Theodore Kaczynski; Susan Smith, who drowned her children; and Tucson shooter Jared Loughner.
Each of them received life sentences instead of death.
Kendall said he has seen this strategy — admitting to a client’s culpability early in a trial — at least 10 times in his three decades in the courtroom. He said he employed the same tactic in a horrific murder and rape case in the early 1990s in Morgan County, Ga. The defense team told the jury that the defendant had committed the crimes, but he did not plead guilty. They used the trial to paint a more sympathetic portrait of their client. Ultimately, the jury, after finding his client guilty, chose to sentence him to life in prison.
More than once, Tsarnaev’s lawyers have said in court proceedings that they were prepared to have their client plead guilty to all 30 charges — which relate to the Marathon bombing, the shooting of an MIT police officer, a carjacking, and a shootout in Watertown — and spend the rest of his life in prison if prosecutors would take the death penalty off the table.
The decision to seek the death penalty was made by US Attorney General Eric Holder, after hearing recommendations from US Attorney Carmen Ortiz.
Though Clarke did not explain to the jury why Tsarnaev has not pleaded guilty, she said she wanted the jury to understand why he committed these acts, and that he should be spared a death sentence. She said she hopes to show him as overly influenced by a powerful older brother who hatched a jihadist-motivated plot to kill and maim at the Marathon. The brother, Tamerlan Tsarnaev, died during a shootout with police days after the bombing.
The trial has moved forward, with the prosecution presenting a string of witnesses Wednesday and Thursday. The judge previously said that the guilt phase of the trial could last about six weeks, though it is unclear if the prosecutors might now abbreviate their case.
The prosecution’s case has proceeded uninterrupted, as the defense has done virtually no cross-examination of witnesses.
By law, the prosecution has the exclusive burden to prove its charges beyond a reasonable doubt, and the defense is not required to say anything.
David Hoose, a Northampton attorney who has handled a capital case, said one reason Tsarnaev has not formally pleaded guilty may be because “experience has proven that a plea doesn’t really do much for jurors” when they decide whether to impose the death penalty.
He noted that Gary Lee Sampson pleaded guilty in Boston in 2003 to carjacking and killing three people, but was still sentenced to death by a jury.
Hoose said death-penalty cases present a unique set of profound emotional and legal issues, and Tsarnaev’s lawyers face a tremendous challenge convincing jurors who have vivid recollections of a traumatic bombing in their community to see their client as worthy of any compassion.
“There’s nothing to compare this case to,” he said.
Patricia Wen can be reached at firstname.lastname@example.org.