Tsarnaev Voir Dire: This is my friend Dzhokhar

Voir dire (to question) is underway. The video is an interview of Ted Wayman, a former WBZ News anchor in Boston who was summoned for jury duty in the Tsarnaev case and excused because of his substantial job related contacts with Judge O’Toole, federal prosecutors and law enforcement officers who will be testifying at the trial. The interview was conducted by Adam Reilly, a reporter for Greater Boston.

Q: What did you make of his demeanor, when he came in? Were you watching him closely?

A: Everybody, all eyes, once he came in, were on him, like almost gasped within the courtroom. Oh my gosh! That’s the defendant. Uhm, unresponsive. Really uninterested in the whole process. Had very little contact with his defense team. He was sitting in the middle of them. Uhm, really didn’t look at the jury pool. Didn’t look at the media that was there. Didn’t look at the judge when he addressed the defendant. He was uninterested in the whole process.

This is a terrible way for the defense to start jury selection. First impressions matter, a lot, and if I were a member of Dzhokhar Tsarnaev’s defense team, I would be extremely concerned about the ability of the rest of the 200 or so prospective jurors, who witnessed that not-so-grand entry, to be fair and impartial jurors.

Another tell is Wayman’s reference to Dzhokhar as ‘the defendant.’ He’s not thinking of him as a person; he’s thinking of him as a thing. That means he has already decided that Dzhokhar is guilty. Fortunately for the defense, they will not have to use a peremptory challenge to get rid of him.

I always made a point of humanizing my client throughout the trial by referring to him by his first name, touching him, and conversing with him in an effort to provoke a smile. At almost every moment of a trial, at least one juror will be watching the client. Trials are a form of theater. Nonverbal conduct is a form of testimony. Most jurors can detect insincerity. Therefore, the lawyer must avoid scripting the client’s behavior and instead provoke the desired genuine response with the right word or gesture at the right time. This skill is not taught in law school and cannot be found in a book. Yet, if performed at the right time in the right way, it can make the difference between a conviction and an acquittal or a life sentence and a death sentence.

The defense team apparently discovered the problem because reporters observing voir dire today have tweeted that Dzhokhar appears relaxed, engaged with the process and communicating with his attorneys. For example,

O’Ryan Johnson ‏@crimeboston 3h3 hours ago

Dzhokhar shares a laugh at the defense table with Def. Lawyer Miriam Conrad. Tsarnaev wearing open collar shirt, blazer. He’s relaxed,chatty

Jim Armstrong ✔ @JimArmstrongWBZ

I am a pool reporter* for this session of #Tsarnaev jury selection. He just re-entered from lunch, says hello to lawyers by name.

*Today is the second day of voir dire. The reporters were segregated yesterday in a room watching a live feed video of voir dire. Technical difficulties resulted in a change in procedure. Two reporters are now permitted in the courtroom to report on the proceedings. They share their work product with the other reporters outside the courtroom and are replaced by another two reporters and so on per each session.

20 Responses to Tsarnaev Voir Dire: This is my friend Dzhokhar

  1. Malisha says:

    I liked this take on Martin Luther King’s legacy:

    http://www.dailykos.com/story/2011/08/29/1011562/-Most-of-you-have-no-idea-what-Martin-Luther-King-actually-did?detail=email

    It does tell us something about our national/international response to terrorism. Only when we’re dishing, and not when we’re receiving, do we find other ways to describe what’s going on. What’s going on…

    • MDX says:

      Here is another article and I am flummoxed by the number of hostile responses in a “liberal” website to the title.

      http://www.dailykos.com/story/2015/01/19/1358828/-Never-Forget-that-Martin-Luther-King-Jr-was-Hated-by-White-America

      I remember the day after his death when my homeroom teacher told us all that his murder was a good thing because the was a troublemaker who was going to allow “the blacks’ to invade our part of town.

      In those days, my area was largely populated by Wallace Democrats.

      One of the first stages in the recovery of an addict is to get out of denial – past, present and future.

      • Malisha says:

        One of the most important thing to help a person get out of denial, however, is the unified and unequivocal conduct of the people around him, in refusing to enter the “alternate reality” he has created by his denial. Thus, for American Whites to get out of the kind of denial you have lived with and identified, they need the whole society (not just the Fred-Leatherman types) to refuse to recognize the fake world they have set up.

        So my question is: Who among us is in so much denial about our own culture that we imagine that can happen? 😆

        IOW, Ugh. Plus OH DAMN! 👿

  2. gblock says:

    I very much doubt that I would interpret Tsarnaev’s apparent unresponsiveness as conveying a lack of interest. I would think that he is aware of the media coverage of the bombing and is reluctant to look at what may very well be a sea of hostile faces.

  3. Annie Cabani says:

    I’d be very interested to know what the heck you can say to your client to evoke a smile from him during trial. I’m thinking that if I were on trial for my life, I can’t imagine anything that could possibly make me smile. I mean, even kitten videos would make me sad, just thinking about such pure, innocent joy being a thing of the past.

    I am serious. Is that something that you consciously think about pre-trial – e.g., finding things that can consistently evoke a smile and/or having a code word or something?

    • Malisha says:

      Oh I can think of dozens of things that could evoke a smile during a long-haul trial like this. Perhaps it’s because of my bitter and caustic sense of humor, but it doesn’t surprise me at all. What might surprise me a bit would be thinking that a defendant’s smile would play well with the jury, at any time, for any reason. When Diane Smith was on trial for the murder of her children, she smiled (at an admittedly wrong moment, to make things worse) and it attracted a lot of attention and I can’t say I wasn’t horrified as well, reading the news reports (no cameras in the courtroom).

      There have had to be long, intense, interpersonally complicated conversations among Tsarnaev and his counsel and their staff and even the guards. These would have brought up all sorts of issues and memories, ALL of them HUMAN, even if most or many of them sad, scary, worrisome, depressing or terrible. One psychiatrist who testified in a court case I was involved in sat in the hall with other witnesses and while answering a question from one of the people waiting there, gave advice as to how to stay calm on the stand, particularly under cross examination from a lawyer commonly referred to as “the mad bull of the pampas.” He said, “Most important is to wiggle your toes inside your shoes.” Every single time I thought about that I did two things: I wiggled my toes, and I SMILED! It was so adorable to see this forensic psychiatrist doling out that silly advice with his Harvard-Yale demeanor that I couldn’t help but smile.

      Tsarnaev could also have smiled because he received a small kindness. Any word of encouragement, any hint that he was not all alone against an angry and vengeful world, any sign of human understanding, no matter what kind of person he is or what he has done to deserve opprobrium, is valuable to him as a person now and can, when offered, result in that most human of all responses: the smile.

      The smile seems to have originated, in evolution, as a sign that the person is NOT baring his/her teeth. It is a sign that the person smiled at is not in danger. It alleviates fear. Only on prime-time television cop shows has it begun to indicate, instead: “I’ve got you; I’m going to dominate you” and there, only on the part of the most abominable criminals (to their victims) or the cleverest detectives (to the recalcitrant perps during questioning). Ordinarily the smile says: “I AM NOT DANGEROUS TO YOU. Here: See my lips turned up and pleasant, and not my teeth ready to tear your flesh!”

    • I can find something funny in almost any situation. I do it extemporaneously, never scripted.

      • Malisha says:

        Well here’s one that is scripted:

        Mullah Nasrudin was home one day when he heard a knock at the door. When he opened the door he saw his daughter standing there, black eye, fat lip, beaten and bloodied, her clothing torn. “My husband beat me!” she cried. He hauled off and slapped her across the face, hard, then slammed the door and ran inside. He picked up the phone and dialed his son-in-law. When the errant husband answered the phone, Mullah shouted, “You Bastard, you beat my daughter! But I had my revenge on you, you low-life: I slapped your WIFE!”

  4. George says:

    Frederick, given the general circumstances here, may I ask why you are interested in this case at this stage. The trial (perhaps not the sentencing) would seem to be a formality.

    • Malisha says:

      I think all the principles involved in this case are extremely important. I have not gotten up to speed on the case, nor have I commented much, mostly because I have not studied it much. But it is a death sentence case and it will show us a lot about our criminal justice system. Also, the way the media treat it will show us a lot about our society right now. I have little personal sympathy for Dzhokhar Tsarnaev and haven’t even learned to spell his name correctly but he is a person and Professor Leatherman is a death sentence defense attorney with a lot of knowledge and insight. If he were NOT interested in this case I would have to wonder why NOT!

      • bettykath says:

        Excellent response, Malisha. I’m not convinced that Dzhokhar is guilty and I’m interested in how the case proceeds. I have more confidence in the Professor Leatherman’s thoughts about the significance of various aspects of the case than those of the reporters. His assertion of the importance of jury selection makes this part of the case very important, but we may not see the results until the verdict is given.

        • Malisha says:

          Thanks Bettykath. One of the things that has concerned me the most about the way our criminal justice system works is the very concept of a “death sentence jury.” There was one very fascinating (and very horrible) case from several decades back where a judge called in a prosecutor during the jury selection, and said to him, “WHAT ARE YOU DOING?” The judge was riled up because the prosecutor had seated a woman on the jury whose name would indicate that she was Jewish. The judge reportedly said, “You can’t put a Jew on a death sentence jury; they didn’t even want to kill Eichmann!” It turned out that the woman wasn’t Jewish anyway — another bizarre twist in the case if you ask me — and it turned out that the defendant got convicted and sentenced to death. The habeas corpus trail of the case ended up revealing that the jailhouse snitch who testified had basically been bribed to lie, and he recanted, and then there was a prosecutor putting in an affidavit about what he had done wrong and I think even a defense lawyer putting in an affidavit about it etc. etc. etc. One of the things I took away from reading all that was that the “death sentence jury” is itself an automatic violation of due process. Until the entire jury pool is shown to be OK with the death penalty, choosing ONLY THOSE who are OK with it is a way of crossing off people from the jury just because of a political, religious or moral belief.

        • Greg Beasley says:

          I’ve been paying attention to Veterans Today since many writers on that site are ex-intelligence and ex-military. I’m convinced the backpacks were placed by mercenaries that work for the Craft International group. Interestingly, that company was started by Chris Kyle, the man the American Sniper movie is based on. My own two eyes are telling me the exploded backpack matches the one the mercenary was wearing in the crowd since there is a white square on the top. I doubt a security company and an amateur terrorist shop at the same store. Judge for yourself.

          • bettykath says:

            There are also many photos that show that the whole thing was staged. I don’t know what to believe. The pictures you posted are a part of the staging.

    • I was a death penalty lawyer and I am opposed to the death penalty in all cases. I am interested in death penalty cases and I am a teacher. I use cases in the news to discuss and teach others about the criminal justice system. Jury selection in a death penalty case involves death qualifying prospective jurors. This amounts to getting rid of anyone who is opposed to the death penalty. This process results in conviction prone juries and that makes it even more difficult to obtain an acquittal in the guilt/innocence phase of the trial. I believe we can all learn something by following and discussing this trial.

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