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    Tsarnaev still an enigma as sentencing phase nears end

    Federal Public Defender Office

    Jurors in the trial of Boston Marathon bomber Dzhokhar Tsarnaev have learned plenty over the past two weeks about jihad and Chechen history. They have seen photos of the conservative Muslim attire of Tsarnaev’s once-stylish mother and ex-boxing brother. They’ve seen images of young Tsarnaev holding a newborn and playing with a friend’s dog.

    But still, the main character in the drama that has been unfolding at the federal courthouse since early March remains inscrutable.

    More than 40 defense witnesses have painted a portrait of his emotionally volatile immigrant family grasping for livelihoods and identities. However, it remains unclear just how this family caused Tsarnaev — portrayed as smart, kind, and studious in high school — to throw away his college ambitions and take the radical measure of joining his older brother in a deadly bombing mission at the 2013 Boston Marathon.


    The best person to fill in the gaps for the jury might be the 21-year-old himself, but all indications are that he will not take the stand before the defense rests, which will probably happen Monday.

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    As the 12 jurors begin deliberating, perhaps by midweek, they will be left wondering about the voice — and internal thoughts — of the lanky young man, walking into the courtroom every day with his uneven gait, mane of unruly dark brown curls, and flat expression.

    It remains unclear whether the former wrestling captain at Cambridge Rindge and Latin high school is remorseful in any way, or whether he still harbors the anti-American, radical Muslim thoughts that were scrawled on the parked boat in Watertown where he was captured. When some of his friends or teachers testified, he appeared to at least look toward them, but it remains a mystery what he was thinking when they all said they could never in their wildest dreams imagine Tsarnaev could be a terrorist bomber.

    Since testimony began, Tsarnaev’s impassive face reflected sadness noticeably only once. Early last week, his 64-year-old Russian aunt took the stand, but upon seeing her nephew, just 10 feet away, she began to sob uncontrollably and could not speak. The courtroom went nearly silent for several minutes as she tried, but failed, to regain her composure.

    As the aunt left, unable to testify, Tsarnaev repeatedly wiped his eyes with a tissue.


    It wasn’t an overwhelming display of emotion, but it was a moment that was probably memorable for many jurors — and perhaps helpful to the defense.

    “Any time a defendant appropriately shows emotion, it tends to humanize them as long as it’s not exaggerated and is appropriate in tone and length,” said David Hoose, a defense attorney from Northampton who has expertise in death penalty cases.

    Still, Hoose said he believes the jury will also realize the former University of Massachusetts Dartmouth student betrayed no emotion when Marathon survivors wept about their torn-off limbs or the death of a loved one on Boylston Street. Tsarnaev’s tears could have an unpredictable effect, he said.

    “You don’t know how jurors will react,” Hoose said.

    After Tsarnaev was convicted on 30 counts connected to the bombing, including 17 that carried the death penalty, the defense team’s most critical job began: trying to persuade the same jury that had heard hours of heartbreaking testimony from victims that their client should not be put to death for these crimes.


    Tsarnaev and his older brother, Tamerlan, set off homemade bombs that killed three and injured more than 260 at the 2013 Marathon, and also killed a Massachusetts Institute of Technology police officer a few days later in their aborted effort to flee authorities. Tamerlan died in a shootout with police.

    Though a majority of Massachusetts residents oppose the death penalty, these jurors were allowed to be on this case only if they assured the judge that they are not morally opposed to the death penalty and could vote for it if the evidence swayed them.

    But the defense has one thing in its favor as it tries to persuade jurors to give him life in prison without parole. A vote for the death penalty must be unanimous; just one juror must vote in favor of life in prison for that to be Tsarnaev’s fate.

    The defense strategy appeared to focus on vilifying the family, especially the older brother who they say led the violent plan, and casting Dzhokhar Tsarnaev as a victim of his chaotic upbringing and a child submitting to an old-world cultural heritage that called for subservience to an older brother.

    The first days of the defense presentation during this final phase of the trial featured a parade of Tamerlan’s former friends and boxing associates testifying about his aggressive personality, religious radicalization, and violent tendencies.

    And the defense lawyers’ efforts at imagery seem to have extended beyond the witness stand. In the presence of the jury, the two veteran female defense lawyers, Judy Clarke and Miriam Conrad, typically flank him at the defense table, often smiling and talking with him or, now and then, touching his shoulder. The three other attorneys, all male, rarely sit next to him or chat with him.

    Former federal prosecutor George Vien has said he believes that seating arrangement is designed to cast Tsarnaev as a young vulnerable person surrounded by maternal attention. The attorneys have also made every effort to be polite and cordial to witnesses, especially the survivors of the bombing tragedy, who were rarely cross-examined.

    George Kendall, a New York lawyer who has handled hundreds of death penalty cases nationwide, said he believes jurors in this case will ultimately be swayed by the evidence, not by whether jurors think fondly of the defense attorneys or if Tsarnaev does not take the stand.

    He said this trial has included particularly anguishing testimony on both sides, and jurors have probably absorbed every piece of it.

    “The evidence is so evocative,” he said. “It almost wears you out with emotion.”

    It remains unclear how many, if any, witnesses the defense has yet to call. According to a transcript of a sidebar meeting with the judge, defense attorneys said they might call Janet Vogelsang, a forensic social worker who specializes in “biopsychosocial” assessments of convicts, and Sister Helen Prejean, a nun who has crusaded against the death penalty and who wrote the book, made into a movie, called “Dead Man Walking.”

    Both sides spent hours with the judge Thursday, probably arguing how or whether these witnesses could testify. The judge’s decision to cancel Thursday afternoon’s court session suggests he has not yet ruled on these issues. He told jurors to return Monday.

    So far, the defense has only pointed to cultural factors to explain why Tsarnaev, widely regarded as peaceful, would join his brother’s violent plot. Attorneys offered one brain scientist to suggest teenagers — Tsarnaev was 19 at the time of the bombing — can be impulsive and irrational. They have not offered any testimony to suggest that Tsarnaev had an undiagnosed psychological disorder, or raised the effect of his copious amounts of marijuana and other drug use.

    Meanwhile, jurors are left with an image — far from complete — created by scores of defense witnesses so far: Tsarnaev, once a gentle, adorable boy, fell through the cracks as the youngest of four in a troubled immigrant family from southern Russia. The parents instilled in their children some traditional patriarchal values, including a younger brother’s deference to an older brother. When the parents left the country around 2012, Tamerlan successfully recruited his younger brother into his jihadist mission involving fireworks, nails, pressure cookers — and a vindictive anti-American message.

    Kendall said jurors in this case are probably already analyzing the evidence in their minds, and forming an image of Tsarnaev. He said most jurors do not wait until the moment they step into the deliberation room to process these life-and-death decisions.

    “The jurors have probably thought a lot about this before now,” he said.

    Patricia Wen can be reached at Follow her on Twitter at @GlobePatty.