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Defense unable to generate sympathy for a terrorist

Prosecution speaks after death penalty verdict in Boston Marathon Bombing trial.
Prosecution speaks after death penalty verdict in Boston Marathon Bombing trial.

The 24-page verdict form completed by jurors Friday in the death-penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev sent one clear message: The defense team's narrative about why this lanky, expressionless defendant deserved a measure of sympathy did not ring true.

During deliberations over 14½ hours, the jury rejected each of four key aspects of the defense case. The panel did not agree that Tsarnaev came under the domination of an older brother, that he was largely neglected by troubled parents, and that the toughest high-security prison in America would prevent him from achieving future fame.

And in what may have been pivotal in the jury's decision, the panel also rejected the defense contention that the 21-year-old Cambridge high school graduate was remorseful. Tsarnaev showed little emotion throughout the trial, even when some victims with prosthetic legs testified about multiple surgeries they have endured, or BB's still lodged in their bodies.

"His lack of remorse sealed his fate," said George Vien, a former veteran federal prosecutor in Boston with death-penalty expertise.


No jurors were available for comment in the courthouse after the verdict was read, and their identities have so far been kept confidential by the court.

But the jury's reasoning can be potentially gleaned from the verdict form, which shows how members voted on dozens of "aggravating" factors cited by the government to justify the death penalty and "mitigating" factors listed by the defense to ask for a sentence of life in prison without parole.

Jurors unanimously agreed that Tsarnaev intentionally placed a bomb in front of the Forum Restaurant on Boylston Street, killing 8-year-old Martin Richard from Dorchester and Lingzi Lu, 23, a Boston University graduate student from China.

In judging Tsarnaev's actions in those two deaths, jurors found unanimously that the aggravating factors trumped the mitigating ones. But they did not come to unanimous agreement that Tsarnaev deserved the death penalty for the death of Krystle Campbell, or the killing of MIT police Officer Sean Collier.


It is likely they assigned Campbell's death to the actions of his older brother, Tamerlan, who placed the bomb outside Marathon Sports, where she was struck. It is also likely they concluded Tamerlan played a significant role in Collier's death.

The jury found the government had proved 11 of the 12 aggravating factors, a sign of the overwhelming evidence that prosecutors presented since testimony began in early March.

The question that remained, however, was whether the defense team's list of mitigating factors influenced the jury to see Tsarnaev in a more compassionate light, and potentially hand down the only alternative sentence, life in prison without parole.

In the end, it seems jurors were convinced that Tsarnaev was once a good kid who turned into a depraved terrorist, but they lacked a believable explanation about how this evolved psychologically. The two starkly different images of adorable child and heartless young adult stood before jurors without an adequate explanation of how they fit together in a whole life. Defense lawyers pointed to patriarchal cultural factors -- due to the family's Chechen heritage -- to explain why Tsarnaev may have felt subservient to his older brother. But that likely rang hollow, especially after prosecutors grilled some of the defense experts showing the Chechen culture has modernized considerably and Tsarnaev's parents led the lives of rule-breaking mavericks.


The defense had intended to call as one of its final witnesses, Janet Vogelsang, a forensic social worker who had studied Tsarnaev's life history extensively and spent time with him. Her specialty is the creation of "biopsychosocial" assessments that stitch together the past and present of a person's life. But for reasons never made public, she was not called to the stand.

The defense had listed 21 mitigating factors, most of which involved the influence of his brother and family, as well as his relationships with teachers, friends, and relatives. One also related to his youth — he was 19 when he took part in the bombings — and another was that he "had no prior history of violent behavior."

Under federal death penalty law, jurors don't have to reach unanimous consensus on each mitigating factor, and each juror votes as to whether they agree. That tally is recorded on the verdict form.

Of the 21 mitigating factors, six received unanimous or near-unanimous endorsement from the 12-member jury and showed they did believe he was young when he committed the crimes, had some good qualities and some family troubles. The factors were: That he was 19; that he had no history of violent behavior; that his teachers in Cambridge thought he was kind and hard-working; that friends in high school and college thought he was caring and respectful; that he had cousins and aunts who cared for him; and that mental illness and brain damage disabled his father.


A mitigating factor that received 10 out of 12 votes was that Tsarnaev's mother, Zubeidat, "facilitated" Tamerlan's radicalization.

However, the defense team's major argument that Tamerlan was the mastermind of the bombing — and that this explained Tsarnaev's rapid slide into criminal behavior — received only three votes.

Four other mitigating factors related to Tamerlan's sinister influence received three or two votes.

And when it came to the defense's mitigating factor that Dzhokhar Tsarnaev "expressed sorrow and remorse for what he did and for the suffering he caused," only two out of 12 jurors agreed.

This result will probably focus new attention on the controversial 11th-hour testimony of Sister Helen Prejean, a national anti-death-penalty advocate and the defense team's final witness. Prosecutors had sought to keep her off the stand, but the judge, after considerable debate, ultimately allowed her to testify in a limited fashion.

The nun told jurors about five visits she had with Tsarnaev and that she heard him say, among other things, that he felt remorse.

Vien said the nun's testimony that she visited Tsarnaev despite tight visitation rules imposed on him may have had an unintended effect of reinforcing the government's assertion that federal authorities would not be able to fully control Tsarnaev's future life in prison and that restrictions could be relaxed.

The defense had urged jurors to sentence Tsarnaev to a lifetime behind bars, arguing that he would live a bleak life in isolation 23 hours a day.

"The fact that she had so much access to him undermines the argument that he'd be locked away with no access to the outside world," said Vien, who is now a defense attorney in Boston.


In fact, only one or two jurors agreed with two other mitigating factors cited by the defense that related to prison conditions, including that government authorities could prevent him from inciting future acts of violence and severely restrict Tsarnaev's "communications with the outside world."

George Kendall, a New York lawyer who has handled hundreds of state and federal death-penalty cases, said he believes the defense was outmatched from the start given the powerful emotional testimony from victims. He noted that no defense witnesses elicited tears from the jury.

"There were no wet eyes for the defense witnesses, right?" he asked.

However, one defense witness, Tsarnaev's aunt from Dagestan, appeared to cause Tsarnaev to cry at one point, his only show of emotion throughout the trial. This 64-year-old aunt — the older sister of Tsarnaev's mother — began to sob uncontrollably on the stand when she saw her nephew sitting in the defendant's chair just 10 feet away.

Her raw crying took up several minutes in the courtroom, and as she left, unable to testify, Tsarnaev used a tissue to wipe his eyes.

In the end, attorney Vien said he wonders if that brief show of emotion by Tsarnaev — perhaps for the pain caused to his mother's sister — only calcified the jury's view that he has no regrets about killing three people at the Marathon and injuring 260 others, including 17 who lost limbs. Or the ambush and murder of an MIT police officer.

"It showed the guy is capable of remorse, but not for people he killed, only for himself," he said.

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