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Defense team faces task of trying to humanize Tsarnaev

One juror’s vote can save his life, but how will that case be made?

In testimony in 2006, Janet Vogelsang focused largely on Zacarias Moussaoui’s confusion over identity and his struggles growing up in a fractured, volatile home.
In testimony in 2006, Janet Vogelsang focused largely on Zacarias Moussaoui’s confusion over identity and his struggles growing up in a fractured, volatile home.Dana Verkouteren

Janet Vogelsang faced a Herculean challenge on the witness stand nearly a decade ago, trying to persuade jurors to feel sympathy for Zacarias Moussaoui, an Al Qaeda loyalist who had pleaded guilty to, and even bragged about, conspiring with the 9/11 hijackers. The jury was deciding whether to sentence him to death.

The seasoned social worker, who is now part of the defense team for Boston Marathon bomber Dzhokhar Tsarnaev, needed to shift jurors’ imaginations away from the bloody carnage at the World Trade Center and toward images of a once-frightened French boy of Moroccan descent.

She hoped the recasting of the 37-year-old convict would make a difference, and it may well have — one juror voted against executing him, depriving the government of the unanimous vote it needed for a death sentence.

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While defense attorneys for 21-year-old Tsarnaev have yet to unveil their full strategy in the penalty phase of his case which begins Tuesday, Vogelsang is probably a major architect of it — and a witness who will take the stand. Her name has emerged in court records as a hired expert, and she is nationally known for assembling “biopsychosocial assessments.”

For decades, as part of her unusual career blending psychology and death penalty law, Vogelsang has delved into the troubled lives of heinous criminals to try to convince jurors not to impose the death penalty.

Much of her work on the Tsarnaev case may be behind the scenes, helping figure out which witnesses — such as family, friends, teachers, psychologists, brain scientists — will testify on behalf of the former wrestling team captain at Cambridge Rindge and Latin. The defense has yet to say whether Tsarnaev, or anyone in his family, will take the stand.

So far, defense attorneys have portrayed Tsarnaev as an emotionally troubled young man in a quiet, but desperate, search for an identity. They suggested he kept his distress over his splintered family and failing college grades hidden from others, and soon became vulnerable to the jihadist path offered by a radicalized older brother, Tamerlan.

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As the penalty phase of the trial starts, lawyers will expand upon this image and may also present testimony, as Moussaoui’s attorneys did, that killing Tsarnaev might turn him into a jihadist martyr in the eyes of others.

Vogelsang has worked previously with some members of Tsarnaev’s defense team, including Judy Clarke in the Moussaoui case. The South Carolina native also worked for the defense of Kristen Gilbert, the Massachusetts nurse who faced the possibility of the federal death penalty after being convicted in 2001 of poisoning some of her patients at a Veterans Affairs hospital in Northampton. Gilbert was sentenced to life in prison.

Vogelsang did not return phone calls from the Globe seeking comment about her role in the Tsarnaev trial. However, a review of her past work, especially in the Moussaoui case, provides insight into how she may try to humanize the former University of Massachusetts Dartmouth student.

In some ways, the two death penalty cases are very different: Tsarnaev is a far younger defendant, 16 years younger than Moussaoui was when he stood trial, and Tsarnaev is a US citizen, while Moussaoui was a French citizen.

Tsarnaev defense team member Judy Clarke (third from left) worked with Vogelsang in the Moussaoui case.
Tsarnaev defense team member Judy Clarke (third from left) worked with Vogelsang in the Moussaoui case.Katherine Taylor/EPA

Moussaoui had a rage-filled personality in court — once responding to Vogelsang’s testimony by shouting “It’s a lot of American B.S.!” — while Tsarnaev comes off in court as passive, even indifferent at times. Tsarnaev clearly planted one of the bombs at the 2013 Marathon, while Moussaoui did not board any of the downed planes on 9/11.

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Still, their death penalty cases are similar because they were part of two horrific terrorist assaults on US soil and were driven by Al Qaeda-inspired hatred toward America.

If Tsarnaev’s life is spared, they may also share a common address. Tsarnaev would probably join Moussaoui in a supermax federal prison in Colorado, where inmates are typically held in solitary confinement 23 hours a day.

In Vogelsang’s testimony about Moussaoui, she focused largely on his confusion over ethnic, religious, and national identity and his struggles growing up in a fractured, volatile home. She also depicted young Moussaoui as the perfect prey for radical Islamic recruiters, and spoke about interviewing numerous relatives and friends.

In a two-part essay she wrote in 2006 about the Moussaoui trial, published in a Clinical Social Worker Association newsletter, Vogelsang said her work is not designed “to excuse human behavior” but to “speak to the accumulation of factors that place an individual at risk, culminating in their current circumstances.” She portrayed Moussaoui as a rootless man who “grew up in a sectarian home with no introduction of any religion and no knowledge of his history.” He was “without an identity and ultimately without the resilience he needed to resist the influence of extremist who were looking for young men with his profile.”

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Zacarias Moussaoui.
Zacarias Moussaoui.Sherburne County, Minn., Sheriff’s Office/AP

Her research about Tsarnaev has likely taken her or her associates to Kyrgyzstan and Dagestan, where he spent his early years before moving to Cambridge at age 8. The defense will probably try to show why his parents, with roots in Russia’s conflict-ridden North Caucasus, had difficulty assimilating to life in America. And they have probably pored over his voluminous school, employment, and medical records.

Several death penalty specialists say Vogelsang is on the short list of the nation’s leading forensic social workers, and they cannot imagine a scenario in which Tsarnaev’s team doesn’t rely heavily on her.

“Jan is very experienced . . . . and this is a big job,” said George Kendall, a New York lawyer who specializes in death-penalty cases, including for the American Civil Liberties Union. “It’s multi-cultural. . . . . Nothing is going to faze her. She knows it’s critical to speak to as many people as possible. You’ve got to get every piece of paper you can find. It’s a quilt — and she’s a great quilt-maker.”

Over the past few decades, Vogelsang’s niche has only grown, as more federal and state court rulings have concluded that convicts facing the death penalty deserve a full and detailed presentation of “mitigating factors” before they are sentenced, or the courts risk having a sentence overturned based on “ineffective assistance of counsel.”

Vogelsang has handled a variety of cases, including a Tennessee woman who hired a hit man to kill her husband and a Florida man convicted of a brutal double murder.

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In her essay about Moussaoui, Vogelsang spoke about her emotions during that trial, including realizing that her testimony would come after prosecution witnesses delivered heart-breaking stories of loved ones lost in the Sept. 11, 2001, attacks.

“How would the horrors of Zac’s childhood stack up against 9/11?” she said.

Her essay also exposed how defense attorneys can spontaneously change their strategy. She said that after Moussaoui chose to exercise his right to testify and began “ranting about how glad he was about 9/11,” the defense team scrapped their original plan and focused more on mental health issues.

They eliminated a sociologist and cult expert from their list, and asked Vogelsang to abbreviate her testimony.

“I carved out of my previous testimony those elements that best supported mental illness,” she wrote. “I refocused and shortened my testimony on Zac’s childhood, family systems and environment — sticking mostly to the orphanages, his father’s violence, his mother’s neglect, lack of a formulation of identity and resilience, and how that happens.”

The defense also decided to introduce victims of 9/11, and while they were not allowed to talk then about their death-penalty views, some spoke about compassion and recovery. Some legal analysts said this move may have signaled to jurors that these victims were divided on the death penalty.

After 40 hours of deliberations over seven days, the jury voted, 11 to 1, in favor of the death penalty, but the one dissenting juror spared Moussaoui’s life. The only insight into the jury’s decision came in a 42-page form, in which they indicated how many agreed with each of more than two dozen mitigating factors. The two that garnered the most votes related to his unstable and dysfunctional family, as well as his father’s violent temper.

David Hoose, a Northampton lawyer who handled the Gilbert death penalty case, said Vogelsang plays a critical role in these trials, helping define the best overarching themes that will resonate with ordinary citizens. “You need someone to tie it up,” he said.


Patricia Wen can be reached at patricia.wen@globe.com. Follow her on Twitter @globepatty.