Throughout Dzhokhar Tsarnaev’s trial, whenever the lawyers have gone up to Judge George O’Toole’s bench for a sidebar conference, Courtroom 9 has been filled with music, much of it jazz, meant to keep others from hearing what they’re talking about.
On Monday, in the middle of heart-wrenching testimony about how 8-year-old Martin Richard was killed by one of the two bombs left near the finish line of the Boston Marathon, a sidebar was called and strains of the old Art Tatum classic version of Cole Porter’s “Love For Sale” filtered incongruously through the courtroom.
But when Tsarnaev’s defense wrapped up Tuesday, after calling just four witnesses, I was expecting a little country and western, Toby Keith belting out “Is That All You Got?”
After the prosecution called 92 witnesses over 15 days, the defense was finished in about the time it took for one FBI agent to catalogue some of the searches the feds carried out on Tsarnaev’s computers.
This was never going to be a traditional defense. In a case like this, carrying a potential death penalty, the trial is divided into two phases: the guilt phase, in which the defendant’s guilt or innocence is established, and the penalty phase, in which, after a conviction, the jury decides on a sentence of death or life in prison.
Tsarnaev’s lawyers copped to most of the charges from the get-go, with Judy Clarke, one of his lawyers, famously saying in her opening statement, “It was him.” The defense has said its real dispute with the government’s case is the why — why Dzhokhar Tsarnaev bombed the Boston Marathon.
The government has contended that Dzhokhar Tsarnaev was a radicalized jihadi who wanted revenge against Americans because of US military actions that have harmed Muslims.
They aimed to prove that he was an equal partner with his older brother, Tamerlan, in the plot that left three people dead, 17 maimed, and hundreds wounded at the Boston Marathon.
The government says he was just as responsible for the slaying of MIT police Officer Sean Collier in the hours before the brothers engaged in a shootout with police in Watertown.
The defense says Dzhokhar was a mostly ordinary American teenager, pulled into a destructive vortex of grievance by a radicalized older brother who masterminded everything.
Throughout the prosecution’s case, Tsarnaev’s lawyers cross-examined few witnesses and none of the victims. When they did step forward to cross-examine prosecution witnesses, they sounded like prosecutors, but the man they sought to incriminate was not their client but his brother Tamerlan, who was killed when Dzhokhar ran over him in an SUV after the Watertown firefight.
The defense was able to establish, or at least make it seem very likely, that it was Tamerlan who downloaded all the jihadi propaganda that was on Dzhokhar’s electronic devices, that it was Tamerlan who did all the research into buying components to make the bombs, that it was Tamerlan whose fingerprints were all over various tools, like a soldering gun used to assemble the bombs.
A defense witness, Gerald Grant, a computer forensics examiner, testified that Dzhokhar’s cellphone showed he was in the New Bedford area when Tamerlan was up in Saugus buying a pressure cooker that was used as a bomb and when Tamerlan was in New Hampshire buying the BBs that were used as shrapnel to such devastating effect.
Another defense witness, Mark Spencer, who runs a digital forensics firm in Chelsea, testified that all that jihadi propaganda found on Dzhokhar’s laptop was originally downloaded on Tamerlan’s laptop and transferred over.
Spencer said that while Tamerlan’s computer showed searches for information on the Ruger pistol used to kill Collier and shoot it out with the police in Watertown, the fireworks used in the bomb, and the model car parts used as detonators, there were no similar searches on Dzhokhar’s laptop.
Prosecutor Al Chakravarty was able to claw back some ground, pointing out that the defense couldn’t say who exactly was downloading or searching for information on those computers at any given time. But the point is, neither can the prosecution.
The defense showed that the most common sites visited on Dzhokhar’s computer were Facebook and a Russian equivalent. While they didn’t say so, graphics they put up, and which the jury saw, showed that Dzhokhar’s computer visited a porn site regularly. Even unspoken, that was good for the defense’s claim that Dzhokhar was not a fundamentalist jihadi but a fundamentally average teenager.
The defense actually called an FBI fingerprint analyst, Elena Graff, to bolster their argument that it was Tamerlan whose prints were all over the items needed to make a bomb. Again, prosecutor Bill Weinreb was able to rebut some of that, pointing out that Tamerlan might have simply had sweatier hands that left prints behind more easily than Dzhokhar.
The truth is, Tsarnaev’s lawyers — Clarke, David Bruck, Miriam Conrad, Bill Fick, and Tim Watkins — have had their eyes set on the next phase of the trial from the beginning. They were never intending to get their client off. They’re focused on saving his life.
And by keeping their focus on Tamerlan during the guilt phase, they have been able to plant seeds of doubt, not just about the prosecution’s evidence, but about the prosecution’s narrative, that there was equal culpability when the bombs went off and when Sean Collier was shot dead.
Their task is mighty. The prosecution case was strong, the evidence overwhelming.
On Tuesday afternoon, Judy Clarke stood up and said the defense had rested. But the truth is, they’re just getting started.
Kevin Cullen is a Globe columnist. He can be reached at firstname.lastname@example.org.