Lawyers for Dzhokhar Tsarnaev sought Wednesday to convince jurors in the death-penalty case that Tsarnaev could end up in the country’s most secure federal prison, locked in a cell 23 hours a day, with limited communication with the outside world — if the jury votes for a life sentence.
A consultant for the defense team, Mark Bezy, testified that the Department of Justice has the authority to ensure that the Boston Marathon bomber be held under special conditions at the US Penitentiary Administrative Maximum Facility in Colorado, or ADX, known as a supermax prison.
Under those conditions, Tsarnaev would be limited to two 15-minute telephone conversations with only immediate family members each month, his mail would be screened, and he would be confined to a single-inmate cell.
He would have no contact with the media, and the defense team has suggested that it would be better for society to send Tsarnaev there to serve a life sentence, rather than allow him to remain in the public eye for the many years it takes to appeal a death sentence.
Being sent to ADX, Bezy said, is “a mechanism to cut off an inmate’s communications with the outside world.”
But in a combative cross-examination, a federal prosecutor used Bezy’s testimony to argue that there is no way to know for certain where Tsarnaev would be assigned, especially where he might be sent years from now. The Justice Department could choose not to renew the special restrictions — known as special administrative measures — because they could be too costly, and Tsarnaev’s prison classification could improve, allowing him more privileges, Assistant US Attorney Steve Mellin argued.
The back and forth struck at the central issue of this phase of the trial — whether Tsarnaev should be sentenced to death, or life in prison — and both sides sought to show what life in prison for Tsarnaev would be like.
Several jurors, who had told US District Judge George A. O’Toole Jr. before the trial that they could consider a life sentence as a worse punishment than death because Tsarnaev is still young, seemed to pay close attention to Bezy’s testimony. Tsarnaev, 21, sat back in his chair, as he has throughout his trial, looking forward.
After three weeks of testimony in Tsarnaev’s sentencing trial, the defense team could rest its case Thursday. Legal analysts say it is unlikely that Tsarnaev will take the stand and appeal for mercy, because it would open him to withering cross-examination that could provoke any number of unpredictable responses and emotions.
“You put a lot of effort into developing a consistent theme and presentation,” said David Hoose, a Northampton lawyer who has expertise in death penalty cases. “Then all it takes for things to go wrong is for the defendant to blurt out something that doesn’t sound right or smirk at the wrong time.”
Hoose said that, in rare instances, judges have allowed something called an allocution, in which the convict is allowed to make a statement in court that is not subjected to cross-examination; however he said he thinks it’s unlikely the judge will allow Tsarnaev to do that in this case. His lawyers have never publicly raised the possibility that he might testify.
Tsarnaev was convicted last month of 30 charges related to the Marathon bombing, the shooting of an MIT police officer, and a shoot-out with police in Watertown, and 17 of the charges carry the possibility of the death penalty.
Prosecutors have sought to show that his crimes were so heinous that he is deserving of death.
One witness, a medical doctor and Army veteran who treated Marathon victims, said the injuries were similar to what he has seen in war zones.
Over the last two weeks, Tsarnaev’s defense attorneys have largely built their case around Tsarnaev’s older brother Tamerlan — who was killed in the Watertown shoot-out — who they say was the mastermind of the attacks and had an outsized influence on his younger brother, in part because of their ethnic background.
On Wednesday, jurors heard from a brain development expert who testified that teenagers brain’s are not fully mature, suggesting that a 19-year-old Tsarnaev could have been manipulated by his older brother. And more of Tsarnaev’s former teachers took the stand, including Eric Traub, a math teacher who recalled writing a letter of recommendation that called Tsarnaev an ideal student.
Jurors also heard from another family member — this time a former brother-in-law who testified via a video feed from Kazakhstan about Tamerlan’s obsessive interest in Islam.
But after hearing from more than 40 witnesses about Dzhokhar Tsarnaev’s past, jurors finally heard Wednesday about his possible future, as defense attorneys tried to paint a picture of prison life.
The bleakness of the ADX prison was the topic of an emotionally charged debate between the government and defense teams early last week. Defense attorney David Bruck sought permission from the judge to show jurors, during his opening statement, an aerial photograph of the prison — an austere image that showed the high-tech complex surrounded by snow-covered acres of flat land and the Rocky Mountains. But, according to a transcript of the meeting with the judge, prosecutors pushed back, accusing the defense of trying to exaggerate how bad the prison is and trying to make it seem like it was “on the moon.”
“The photos that Mr. Bruck wants to use are calculated to make ADX look like an extremely forlorn, forbidding institution . . . that the death penalty is an unnecessary punishment given how forbidding ADX prison looks from the sky,” said prosecutor William Weinreb.
In that same meeting, another prosecutor, Aloke Chakravarty, also noted that there is no guarantee that Tsarnaev would be staying at the ADX prison for the rest of his life.
“That fact that’s he going there, over time that could change,” said Chakravarty at the meeting, which ended when the judge granted the defense request to show the photo to jurors.
Bruck was able to show the photo.
Mellin argued during Bezy’s testimony Wednesday that it will be impossible to know what Tsarnaev’s life in prison would be like, and again raised the issue of whether he would even remain at ADX. Mellin noted that the prison system seeks to remove prisoners from strict security if it is safe to do so, because of the costs. He also said that inmates have challenged the constitutionality of the ADX conditions in lawsuits, which may bring reforms.
And he pointed out that Tsarnaev’s lawyers have already sought to lift the special conditions he is being held under now. Bezy said he did not know that.
Bezy, an Arizona-based corrections consultant who worked for the Bureau of Prisons for nearly 30 years, said he was confident that Tsarnaev would be sent to ADX and given restrictive conditions because of the nature of his case, the threat to the public, and his notoriety.
He acknowledged, however, that “each case is based on individual cases and factors related to that inmate.”
“It’s not guaranteed,” he said.