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As Dzhokhar Tsarnaev’s defense begins, image matters

As Boston Marathon bombings victim Marc Fucarile (right) testified in court last week, Dzhokhar Tsarnaev (second from left) was surrounded by his attorneys. Even the seating arrangement at the defense table is probably designed to show Tsarnaev’s youthful, vulnerable image, said one former federal prosecutor.
As Boston Marathon bombings victim Marc Fucarile (right) testified in court last week, Dzhokhar Tsarnaev (second from left) was surrounded by his attorneys. Even the seating arrangement at the defense table is probably designed to show Tsarnaev’s youthful, vulnerable image, said one former federal prosecutor.(Jane Flavell Collins/Associated Press)

Jurors in the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev repeatedly hear defense attorneys refer to him by his nickname, “Jahar,” while prosecutors routinely call him “the defendant” or his full name.

When anguished victims take the stand, Tsarnaev’s attorneys tilt their heads sympathetically in their direction, indicating to jurors that they are compassionately absorbed by every detail — even as Tsarnaev often looks away with a flat expression.

And jurors consistently see the same seating arrangement at the four-person defense table: Tsarnaev, 21, sits between his two veteran female lawyers, Judy Clarke and Miriam Conrad, who chat with him and smile, while his other attorney, David Bruck, sits to one side.

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The gender arrangement at the table is probably no accident and is designed to show Tsarnaev’s youthful, vulnerable image, said one former federal prosecutor in Boston who has handled a death penalty case.

“They’ll see him as a young boy, and there’s a maternalism that they’re trying to project,” said George Vien, who is now a defense lawyer with Donnelly, Conroy & Gelhaar.

Both sides have used imagery and symbolism to bolster their cases, and this is particularly true of Tsarnaev’s lawyers as they try to stop jurors from calcifying a monstrous opinion about their client before they begin presenting their case Monday that jurors should spare him from the death penalty.

Though the jury has so far heard little from the defense, Tsarnaev’s lawyers have used every opportunity to point out that their client was 19 — a teenager — at the time of the bombing. During cross-examination of witnesses in the first part of the trial to determine Tsarnaev’s guilt, his lawyers have highlighted his preoccupation with whether a carjacked Mercedes could play music from an iPhone and his tweeting of rap lyrics and about TV shows.

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The defense even attempted to turn the government’s picture of Tsarnaev’s defiance — a middle finger aimed at a surveillance camera in a courthouse cell — into a show of spontaneous juvenile behavior. The defense introduced a video clip of Tsarnaev’s actions in the cell that day, showing he used the reflection of the surveillance camera to fuss with his hair and flash a V sign with his fingers before making the obscene gesture.

The defense also uses every opportunity to repeat the word “Tamerlan” before jurors — the name of Tsarnaev’s older brother who died in a shootout with police and, according to the defense, was the mastermind of the bombing.

Meanwhile, the prosecution has used symbolism in making its case, as well. They maintain that Tsarnaev — and his exposure to the death penalty — must be seen through the prism of war and terrorism. They repeatedly showed jurors a photo of a black flag, sometimes used by radical Islamic groups, that hung in Tsarnaev’s bedroom in Cambridge.

Prosecutors also appear eager to remind jurors of the US military backgrounds of some witnesses, including a trauma surgeon who told jurors last week his war service enabled him to instantly recognize that victims at the Marathon were hit by an improvised explosive device. The government has repeatedly drawn jurors’ attention to Tsarnaev’s Twitter postings or downloaded articles or songs that refer to Muslim extremism, militancy, and anti-Americanism.

Much of the past eight weeks has been a one-sided display of government evidence of the horrors inflicted by Tsarnaev.

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In her opening statement in early March, Clarke surprised jurors by conceding that Tsarnaev committed the crimes but asked them to keep “your hearts and minds open” until they heard both sides. During the five-week trial to determine Tsarnaev’s guilt, the defense conducted very limited cross-examination of witnesses and put on a very brief case. After 11 hours of deliberation, the jury unanimously found Tsarnaev guilty of all 30 counts that he faced, including 17 that called for a possible death penalty.

Last week, at the start of the penalty phase of the trial, the defense chose to hold off its opening statement until after the government presented its witnesses. Prosecutors presented 17 witnesses over three days, including numerous victims who spoke with heartbreaking eloquence about how the bombings shattered their lives.

But on Monday, the defense’s case will begin in full force and is expected to include evidence as to why Tsarnaev committed the crimes and why the defense believes he does not deserve to be executed but should instead get life in prison without parole.

As his lawyers present their case, they will have different visual offerings for the jury. On Thursday, some relatives of Tsarnaev’s flew into Boston, and jurors could see something new — supporters sitting behind him.

One image that has been consistent throughout the trial is Tsarnaev’s impassive face. While he sits obediently in the courtroom, without drawing much attention to himself, he wears a neutral expression, even during gut-wrenching testimony from witnesses. It remains unclear how his attorneys have advised him to act or whether they have any influence over how he behaves.

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“There is only so much control attorneys have over this,” said George Kendall, a veteran New York lawyer who specializes in death penalty cases.

It remains unclear whether Tsarnaev will take the stand to show remorse or explain why he chose to join his older brother, Tamerlan, in setting off two homemade pressure-cooker bombs at the 2013 Marathon finish line.

Kendall said he thinks it’s unlikely the defense will allow Tsarnaev to take the stand because it would subject the 21-year-old to vigorous cross-examination by the prosecution, which can be a highly unpredictable situation.

He said the defense team knows that, despite an anti-death-penalty sentiment reflected in recent public polling and from some high-profile bombing victims, nothing matters except what goes on in the minds of the 12 jurors. Only they have seen and heard each and every piece of evidence — including photographs, images from autopsies, and graphic videos from the bombing scene.

The jurors are not typical of the population of the state — which is predominantly anti-death-penalty — because they had to assert to the judge an openness to imposing the death penalty in order to serve.

Legal experts say no one outside the courtroom has experienced this case as these jurors have, sitting in their wooden chairs inside Courtroom 9. The defense can only hope that, in the days to come, jurors will be willing to show some leniency to Tsarnaev after what they have seen and heard.

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“They have been through a brutal, very emotionally evocative trial,” Kendall said of the jurors. “Nobody can tell how they feel.”


Patricia Wen can be reached at wen@globe.com. Follow her on Twitter at @GlobePatty. Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter@miltonvalencia.