Tsarnaev’s defense team set to start making its case
Will try to show brother’s power
Months before the start of the death-penalty trial of Dzhokhar Tsarnaev, one of his lawyers announced in federal court that he, too, was searching for an explanation for the April 15, 2013, Boston Marathon bombing.
“We, the defense, are part of the process of getting to the bottom of this, and perhaps of finding out why, which is the question everyone, everyone wants answered,” attorney David Bruck said in an impassioned declaration before a courtroom of spectators.
As early as Monday, the jury — and all of Boston — could start to hear the answer.
With federal prosecutors set to rest their case Monday, the trial will shift to the defense.
Their challenge, legal analysts say, will be to maintain the narrative that while Tsarnaev may be guilty of the crimes for which he has been charged, he was a lesser player and his life should be spared.
“Nobody says that what happened was not a terrible, terrible thing. Everybody agrees it was a horrible, horrible thing. But the fact that a horrible crime occurred doesn’t automatically mean that everybody that associated with it should be sentenced to death,” said Robert Dunham, executive director of the Death Penalty Information Center, which tracks capital crimes cases.
The defense began laying the foundation for their case during opening statements March 4 — when one of Tsarnaev’s lawyers first acknowledged that Dzhokhar Tsarnaev took part in the bombings, a firefight with police in Watertown, and the shooting of an MIT police officer. But she called on jurors to keep an open mind as the defense team would show that it was Tsarnaev’s older brother, Tamerlan, who was the mastermind of the violence.
In the likelihood that jurors find Tsarnaev guilty, the defense will also have the second phase of the trial — the sentencing phase — to convince jurors that Tamerlan Tsarnaev was the leader and that their client’s life should be spared.
It was not immediately clear whether the defense will call any witnesses during the first phase of the trial, after the prosecution rests its case. But already, the team has been successful in using the testimony of government witnesses to place a focus on Tamerlan Tsarnaev, who was killed four days after the Marathon during the confrontation with police in Watertown.
Bruck pointed out through the testimony of Dun Meng, a man carjacked by the Tsarnaev brothers, that it was Tamerlan Tsarnaev who had the gun, who pointed it at him, who told him, “Do you know the Boston Marathon explosion? . . . I did it, and I just killed a policeman in Cambridge.”
“What you’re seeing now is the defense is pushing back where they think the government is trying to overstate the defendant’s role, and they’re trying to make their point here,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases, including for the American Civil Liberties Union. “I think where they’re pushing back is to say, ‘That’s not the case.’ ”
The strategy, legal analysts and those who know the defense team say, is a combination of the lawyers’ unique specialty in rare federal death penalty trials, their general trial experiences, and their dedication to save Tsarnaev in the face of overwhelming evidence.
“The task of a defense lawyer is to present evidence that enables the jury to “see a person in front of them, not a demon or a monster,” said Dunham, who handled capital crimes cases as an appellate lawyer in Pennsylvania.
The trial defense team includes Miriam Conrad, the head of the federal public defender’s office for the districts of Massachusetts, New Hampshire, and Rhode Island. She has handled other terrorism-related cases, including the trial of Essam Mohammed Al Mohandis, a Saudi national who was acquitted of charges that he smuggled explosives.
Also making the case for the defense will be William Fick, an assistant public defender in Boston who recently provided a spirited defense in the public corruption trial of John J. O’Brien, the former head of the state Probation Department. Fick represented Tsarnaev at his initial appearance before a magistrate judge while Tsarnaev was in the hospital on April 22, 2013.
Rounding out the local defense team is assistant public defender Timothy Watkins, who has also handled high-profile cases, including the defense of Albert Arroyo, a former Boston firefighter who was acquitted of fraud charges related to his disability leave. Watkins serves on the executive board of Massachusetts Citizens Against the Death Penalty.
Tsarnaev’s team also includes two outside lawyers. Judy Clarke is nationally renowned for representing and saving defendants facing capital crimes, including Olympics bomber Eric Rudolph and mass shooter Jared Loughner.
Bruck directs the death penalty defense clinic at Washington & Lee University School of Law . He has argued seven death penalty cases in the US Supreme Court and represented defendants in more than 20 capital cases. He has worked with Clarke before.
Legal analysts say the defense team has taken a unified approach, working with investigators, analysts, and other specialists to research the life history of the Tsarnaev brothers, to show that only one of them — the older brother — was the driving force behind the crimes.
“The death penalty is supposed to be reserved for the worst of the worst,” said Eric M. Freedman, a law professor at Hofstra University School of Law who studies capital punishment cases.
The lawyers could also use the sentencing phase to introduce material evidence that was not related to the bombings. For instance, the lawyers have pointed out in court records that Tamerlan Tsarnaev was a suspect in a 2011 triple homicide in Waltham, and the defense could argue that Tsarnaev knew of the murders and feared his older brother.
Prosecutors have presented evidence that Tsarnaev was alongside his older brother as the bombings unfolded. He placed one of the bombs on Boylston Street himself, and a police officer testified that he saw Tsarnaev throwing bombs at police officers during the confrontation in Watertown.
Clarke, in her opening statement, urged jurors to keep an open mind, saying they will learn about Tsarnaev’s history during the sentencing phase.
“None of you would be sitting here . . . had you not convincingly and with conviction told us that you can remain open . . . your hearts and minds open to thinking about the evidence all the way,” Clarke said. “It’s going to be a lot to ask of you to hold your minds and hearts open, but that is what we ask.”