Opening Statements Today in Boston Marathon Bombing Case

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.

15 Responses to Opening Statements Today in Boston Marathon Bombing Case

  1. owl says:

    “emotional”, “gruesome” testimony is reported today. it is, indeed, emotional. graphic. hard, at least in my mind and heart, to separate the crime from the criminal(s). how will justice be served, if not to include active consideration of the death penalty in this and other cases?

    • Life in prison without parole is a severe punishment. Why does it have to be worse than that?

      • owl says:

        i know it may not be philosophically or politically correct to express a desire to consider exercising the most extreme punishment, which, of course, is an eye for an eye equivalent…and is meeting violence with violence. ideally, we would prefer not to think in those terms.
        intellectually, i know we cannot assign criminal motivation and blame with absolute certainty; there is no retracting an error made in administering the death penalty.
        alternately, i am shocked by, and abhor the violence of beheadings, and the savagery of horrible, uncivilized, terrorist killings.
        still, i am not convinced that there isn’t a place for not just separating, but permanently removing the most criminal from society.
        i wonder what the victims would choose, if they could, as punishment for Tsarnaev’s crimes against them?

        • Where do you draw the line between those who are sentenced to death and those who are not?

          • owl says:

            yes, i anticipated your next question before posting. i trust scholars, philosophers and theologians have studied that distinction.
            my first response is that lines have already drawn around how certain lives are valued more than others.
            aborting / killing a fetus is legally justified, while taking the life of / abusing a live born infant is severely punished, as it should be.
            if black lives matter, do all lives matter?
            in our society, taking a policeman’s life is swiftly and severely punished, and the presumption is that his / her life is of more value than a civilian’s.
            compensation for a lost life is calculated into dollar amounts, and measured by life-time earning power. mine is significantly reduced by age, i am still loved, cherished and valued by my family.
            250+ lives intentionally, senselessly and permanently altered would seem to demand the most severe punishment.
            if we fear “the government” as an agent to administer this punishment, then whom shall represent us in endeavoring to administer justice?
            i do not wish to feed, clothe and house someone for the rest of his life who….again, has intentionally, senselessly and permanently maimed, killed and has created mayhem.

  2. Diamonique says:

    I’ve been thinking about this whole death penalty thing from a new perspective… new for me anyway. If I were on this jury, the defendant’s youth and (I believe) manipulation by his brother would have me voting for life in prison. I kinda feel a little sorry for him.

    However, my 17-year-old grandson was murdered 2 years ago. The 2 defendants are 19 and 22. From the info brought out in trial (plus the neighborhood scuttlebutt), the 19-year-old was manipulated by his 22-year-old cousin. I would have no problem voting to put either of these jackasses to death. For the 19 year old, the mitigating circumstances are very similar to those of Dzhokar… but I wouldn’t lose a single night’s sleep over my grandson’s murderers.

    I see this as another reason the death penalty should be abolished altogether. The whole thing… from accusation to trial to penalty… is all too subjective.

    • Malisha says:

      I agree with you Diamonique. Each of us would like to kill our abusers but when we are governed by a government rather than by our emotions (even when those emotions would be RIGHTER than the actions of government), we have to assess whether we can, as a people governed, grant to our government the right to put any one of us to death. I always have to say NO to that. Especially since, in order to put one of us to death, our government must make a killer out of at least one OTHER one of us. The government is making an executioner KILL somebody. That executioner is not the person who was harmed. The executioner ONLY kills the executed person BECAUSE his government told him (paid him) to do it.

      Ugh!

      Add to that the fact that we cannot be fair, that we are unABLE to be fair, because each convicted person is treated differently and has had a different path in life, and I say there is no way in the world that I can allow my government to wield that much power.

      And my government could kill me in five minutes for saying this or for nothing at all, and I know it.

  3. Two sides to a story says:

    Good to have you back here. I first found you on Firedoglake but hadn’t thought to look over there!

    I don’t see that there’s anything gained by executing criminals. Sometimes victims and their families think it brings closure but I suspect it does not. We all sort of want to destroy people who harm us on any level but letting go, forgiving, and making peace with the situation is what brings true closure. And perpetrators of crimes are more likely to learn by living out their lives rather than being suddenly dispatched themselve.

    I think the natural impetus for this life is to live in equanimity and I think all but the certifiably insane regret harming others eventually. Transformation is an important aspect of the human psychological makeup.

    • owl says:

      while your comment is eloquently expressed, although somewhat dispassionate, presumably due to a philosophical position on the death penalty, you may fail to appreciate the described visual and audible horror of a crime committed without an apparent moment of regret, and by evil intent.
      i am the granddaughter of an amputee, and understand the hardship of someone’s living with compromised mobility, with life-long nerve pain, and with overwhelming loss. this, of course, multiplied over 250 times, to include vast and heinous injuries to innocents…and death to three.
      my heart is not inclined toward forgiveness with my personal knowledge of these disabilities, made worse by the senselessness of a crime committed against American citizens living freely in Boston.
      perhaps until it is your family member suffering might you be able to appreciate and strongly consider the death penalty as appropriate.
      his is a life that could and perhaps should not be spared.

      • I don’t believe that anyone has the wisdom or the right to decide if another person should be executed. I especially do not believe that the state or federal government should have that power when they can confine someone for the rest of their life.

        I realize not everyone agrees with me.

        • owl says:

          i know; i understand, at least intellectually, your position, but emotionally i veer away. and i so respect your many years of professional service in this realm so as to have arrived at your position on the matter of death penalty….i know it’s firmly rooted. and it’s OK. perhaps, and i mean this with all respect and sincerity, as you know, you may be more highly evolved than i. this life is such a puzzle. 😉

  4. gblock says:

    The elements that you named also make me want to be less harsh with Dzhokar, But going against him, in my book and probably that of many people, is that he has owned the crime. His attitude seems more one of pride than one of regret about the bombing and its results.

  5. bettykath says:

    Good to have you back. Firedoglake seems like a good site and worth frequent visits.

    Some of the comments there suggest that there is no proof that Dzhokhar actually took part in the bombing, siting specifically that the backpack he carried was light colored but the one that exploded was dark colored. Since his brother wasn’t found guilty, he was just executed, it’s kind of hard for me to see him as an accomplice. Imo, the prosecution has a difficult job unless the jury has already been prejudiced by the media hype.

    • ay2z says:

      Unless this were to happen—

      “Dzhokhar Tsarnaev’s defence admits guilt at Boston Marathon bombing trial
      Surviving suspect faces 30 charges, 17 of which carry the death penalty”

      The Associated Press – Last Updated: Mar 04, 2015 12:24 PM ET

      • ay2z says:

        “We take no issue with the facts from the ground that week,” Hunter quotes Judy Clarke, one of America’s foremost death-penalty defence attorneys. “It WAS him. So why are we here? Where we differ is, Why? How did we get from this to this?” Clark asked, holding up a photograph of Tsarnaev as a happy teenager, followed by one of him and his brother Tamerlan at the time of the attack. Older brother Tamerlan died in a shootout with police days after the bombings.

        “The evidence will not establish and we will not argue that Tamerlan put a gun to Dzhokhar’s head or that he forced him to join in the plan,” Clarke said. “But you will hear evidence about the kind of influence that this older brother had.”

        (Quote from AP news article above)

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