Tsarnaev, prosecution blood lust and the death penalty

April 1, 2015

I am opposed to the death penalty in all cases, no matter how egregious. I always have been. I oppose the death penalty for many reasons. Today, I’m going to talk about one of them with which most readers may be unfamiliar.

Trying a death case changes people, particularly prosecutors, and not for the better. I’m talking about prosecution blood lust and the desire to kill. Desire to kill the defendant, my client. The human being whose life I am desperately trying to save. I’ve seen prosecutors cheat to win by concealing exculpatory evidence and cutting secret deals with jailhouse snitches to reward them for falsely claiming that my client confessed to a murder he did not commit. I saw it on Monday morning when the prosecution attempted to bury Dzhokhar Tsarnaev beneath a mountain of blood soaked garments and ghastly autopsy photographs.

The prosecution went too far. The desire to arouse and inflame the passions of the jurors to kill Dzhokhar Tsarnaev prevailed over reason. The defense had admitted that Dzhokhar Tsarnaev had committed the crimes charged. The prosecution did not need to literally wave Martin Richard’s bloody, sooty and melted clothes in front of the jury, but they did.

Rule 403 of the Federal Rules of Evidence (FRE) requires the trial judge to weigh the probative value of the evidence against its prejudicial value. When the prejudicial value substantially outweighs the probative value, the judge should exclude the evidence. Judge O’Toole admitted all of it and it was unnecessary.

The ruling is discretionary and will not be disturbed on appeal unless the judge manifestly abused his discretion.

In deciding whether a trial judge manifestly abused his discretion by admitting gory and grisly evidence, an appellate court will consider whether the evidence likely affected the verdict. That is, whether the verdict would have been different but for the evidence.

I think the answer is the error likely will not affect the verdict in the guilt/innocence phase. But I cannot confidently say that about a death verdict in the penalty phase.

I think this is another example of Judge O’Toole navigating perilously close to reversible error.

Just because the government has a slam dunk case does not mean that the court can ignore the rules of evidence on the ground that any error is necessarily harmless.

The government should not be permitted to strip the defendant naked and flog him in front of the jury.

That is what basically happened on Monday and it was wrong.

For more information on what happened Monday, please read my article, Tsarnaev: Government rests after presenting graphic and disturbing autopsy evidence.


Tsarnaevs: Why did they murder the innocent?

March 27, 2015

Dzhokhar Tsarnaev wrote a note in pencil on an interior wall of a trailered boat in which sought refuge after the Watertown shootout. He attempted to justify killing innocent people with the following words,

“The U.S. Government is killing our innocent civilians but most of you already know that. As a M [bullet hole] I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all. …”

“Now I don’t like killing innocent people it is forbidden in Islam but due to said [bullet hole] it is allowed.”

He is wrong. The Prophet, whom he revers, prohibited killing the innocent.

From the Islamic Supreme Council of America:

The Prophet sent the following message to his military leaders who were setting forth in the way of Jihād to stop hostile advances and defend Muslim territories:

Advance in the name of Allah, with Allah, on the pattern of the Messenger of Allah . That means do not kill the elderly, infants or children and women. Do not exceed the proper bounds. Gather your spoils and make peace, “and do good. Lo! Allah loveth those who do good.”

The Prophet passed by a woman who was killed and said, “She was not engaged in fighting.” The Prophet then sent to the Muslim leader Khālid ibn al-Walīd the following message, “The Prophet orders you not to kill women or servants.”

This was to show the reason in the prohibition of killing her was due to the fact she was not with the fighters. The inference here is “the reason we fight them, is because they fight us, not on the simple principle that they are disbelievers.” This is clear evidence the woman was not a fighter and the Prophet prohibited her killing. From the strong expression the Prophet made, going so far as to send a letter to his topmost military commander, we see how concerned he was to prevent any such incidents, and to insure that every single Muslim warrior was aware of the rules of combat.

The question arises here: when someone explodes a bomb or commits a suicide attack in a public place, how many innocent women, children and elderly people are killed? If for one woman’s death, the Prophet scolded his top general, Khālid ibn al-Walīd, what then about killing twenty, thirty or even hundreds of non-combatants, some of whom may even be Muslim?

Just as the Messenger of Allah forbade the killing of women and the young he forbade killing priests.

The first caliph Sayyidina Abū Bakr aš-Šiddīq’s commandment to the leader of the first Islamic military expedition after the Prophet was:

…No hermit should be molested…Only those should be killed who take up arms against you.

So we see from these various narrations of the Prophet ―and there are many more like them―that the Prophet prohibited the Muslims to fight anyone, Muslim or non-Muslim, even if they are unbelievers, if they are not transgressors against the security of the nation.

This shows that terrorist acts, in particular suicide attacks which kill indiscriminately, are utterly unacceptable forms of combat, even during valid combat authorized for defense of the nation.

Dzhokhar Tsarnaev needs to come to an understanding that his God, whom he calls Allah, does not approve of what he and his brother did. He has an opportunity in this lifetime to atone for what he did, but he is running out of time. A good place to start is the penalty phase of his trial.

With not just his life, but his soul at stake, he must reject self-deception, own what he did and admit that it was wrong. His actions and his note are offensive to his God and he must admit that too and plead for mercy.

The prosecution will likely rest on Monday after the Medical Examiner, Dr. Jennifer Hammers, concludes her testimony about the deaths of Lu Lingzi, a graduate student from China and the child, 8-year-old Martin Richard. Court recessed yesterday for the weekend after Dr. Hammers concluded her graphic testimony about the death of Krystle Campbell, a restaurant manager from Medford, MA.

I am going to pray for him to find the light while there is still time.

I am also going to pray for the jurors because, despite the law that permits them to sentence him to death, no human should kill another.

Let us all pray for the victims whose lives changed forever the day the bombs exploded. May they find peace in this lifetime.


Bill Richard’s unimaginable horror and a jury’s choice

March 6, 2015

We do not expect our children to die before we do.

Yesterday afternoon, Bill Richard took the stand in the Boston Marathon bombing trial. He told the members of the jury what happened to him, his wife and their two children, Martin and Jane. “We were running late,” he said. The winners had already finished and they had to walk back along the race course to find a place where they could see the runners pass on their way to the finish line. After watching for awhile, the kids got bored so the family took a break and got some ice cream at a nearby Baskin & Robbins. Then they tried to find a spot closer to the finish line. They found an opening in the crowd in front of the Forum Restaurant where the kids could stand behind the metal rail barricade next to the street and see the runners.

When he heard the first “thunderous explosion” near the finish line about a block away, he thought it was a sewer explosion. Concerned, he decided that they should leave the area. He hopped over the fence and turned to help his family into the street. A few seconds later, the second bomb exploded tearing his pants apart and knocking him to the ground. He gathered up his son and carried him across the street and gently placed him on the ground.

Chris Caesar and Hilary Sargent of Boston.com pick up the story,

“When I saw Martin’s condition, I knew that he wasn’t gonna make it,” he said. “I told [Denise, his wife who lost an eye] I was gonna go be with Jane [his daughter whose leg was blown off]…she agreed.”

“It was at that time I saw my son alive, basically for the last time,” he added. “I knew we needed to move quickly, or we’d lose Jane, too.”

Richard accompanied both Henry [Martin] and Jane to Boston Children’s Hospital, describing the environment “like a scene from the movies.” There, Denise called Richard to tell him Martin had died.

“I said, ‘I know,’” he told the jury.

Jane later had 20 pieces of shrapnel removed from her body. Richard—unwilling to abandon his injured daughter—was also treated at Children’s Hospital for hearing loss, burns, and shrapnel wounds.

“But I can still hear the beautiful voices of my family,” he said.

No one ever expects to be in a situation like this. Unimaginable physical pain and unimaginable never ending emotional pain.

Incomprehensible.

What should we do with the man who visited this horror on this innocent family and more than 260 other innocent people, including two other people who died?

What should we do?

Should we kill him?

What good would that do?

Does he even understand what he did?

I have been here before. I was a death penalty lawyer and I have witnessed awful things.

I have learned that even the worst of the worst have that spark of light that binds us all to each other and can be nurtured into a mighty flame.

That is my cause, my purpose, my life’s work.

I believe in forgiveness, mercy, redemption and resurrection, no matter what a person may have done.

I would never deny that to anyone.


Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

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.


Court of Appeals to hear oral arguments February 19th in Tsarnaev case

February 12, 2015

The First Circuit Court of Appeals has scheduled oral arguments next Thursday, February 19th, to consider Dzhokhar Tsarnaev’s request to move his death penalty trial out of Boston. United States District Court Judge George A. O’Toole has denied three defense motions to move the trial and that prompted the defense to go to the appellate court. Meanwhile, jury selection will continue.

The New York Times reports,

In making their requests to move the trial, defense lawyers had cited the attitudes of prospective jurors. They said that of the 1,373 prospective jurors who filled out questionnaires, 68 percent said they already believed Mr. Tsarnaev was guilty and 69 percent had said they had a personal connection to the case.

They also cited the outpouring of emotion in Boston on Jan. 28 when a man shoveled off the marathon finish line in the midst of a blizzard. The Boston Athletic Association, which oversees the marathon, issued a statement saying that the act “proves that — in Boston — everyone owns the marathon.”

The defense seized on this as evidence of bias. “Such remarkable and enduring displays of public solidarity in the wake of the Marathon bombings are laudable,” the defense wrote. “But jurors drawn from the community where ‘everyone owns the Marathon’ cannot be dispassionate and impartial.”

Judge O’Toole and the lawyers have individually questioned 173 potential jurors so far in an attempt to create a pool of 60 – 70 potential jurors who have been passed for cause by both sides (i.e., people who claim that they can put aside what they know about the case and any opinions they may have formed about Tsarnaev’s guilt and impartially decide the case solely on the basis of the evidence introduced in court and the jury instructions). Judge O’Toole wants a pool that large before the lawyers exercise their peremptory challenges. Unlike challenges for cause that must be supported by a reason why the potential juror cannot be fair and impartial, peremptory challenges do not require a reason. Each side has 20 peremptory challenges, plus 3 for the 6 alternates. If both sides exercise their full complement of peremptory challenges, 46 potential jurors could be disqualified. To be on the safe side, the pool should consist of 64 potential jurors. They are not there yet, despite a month of jury selection and that demonstrates how tainted the potential jurors are by the extensive pretrial publicity and their feelings about the case.

In addition, a large percentage of the potential jurors would either automatically impose the death penalty if Tsarnaev is convicted or automatically refuse to impose it because they are opposed to it. Only people who can agree to balance evidence in aggravation against evidence in mitigation can serve on the jury. This is called the death qualification process.

I do not believe it’s possible to select a fair and impartial death qualified jury in Boston and I would grant the defense motion for a change of venue, if I were the judge. Judge O’Toole disagrees. Now a three-judge panel will decide whether to keep it in Boston or move it to another location.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


First Do No Harm

December 26, 2014

Friday, December 26, 2014

Good evening:

First, do no harm.

The death penalty trial of Dzhokhar Tsarnaev is scheduled to begin in federal court in Boston on Monday, January 5, 2015. This is the so-called Boston Marathon Bomber case (BMB). I say “is scheduled to begin” because the defense has requested (1) a change of venue due to prejudicial pretrial publicity and (2) a continuance of the trial date until next September to review voluminous discovery that the government recently disclosed to the defense. You can reasonably expect both motions will be denied because the jury summons have already been sent out.

Both motions were filed to protect the record should Tsarnaev be convicted and appeal. For example, if he were convicted and his lawyers had not filed these motions, he would be barred from claiming on appeal that he was denied a fair trial due to prejudicial pretrial publicity and being forced to trial in January when his lawyers were not prepared.

Although both motions were previously raised and denied in September, it’s not unusual for them to be refiled because community prejudice toward a defendant can change over time as can the necessity for a continuance when discovery is provided to the defense at the last minute.

The Boston Globe describes the defense motion for a continuance,

Just last week, prosecutors turned over a witness list with more than 730 names, and identified 1,238 exhibits and 413 digital files that could be used as evidence, the defense lawyers complained. The government provided a trove of other digital records, the lawyers said.

“To commence trial as scheduled on Jan. 5 would threaten both the fairness and finality of the proceedings,” the defense team argued. They have asked that the case be postponed until September.

“It [is] impossible for the defense to digest this information, much less attempt to pursue investigative leads it may suggest, in time to make effective use of it at trial.”

The Boston Herald reports the government’s response,

Prosecutors in the Boston Marathon bombing case called accused terrorist Dzhokhar Tsarnaev’s renewed push for a delay in the Jan. 5 trial just more complaints from a defendant who faces the death penalty.

In a Christmas Eve filing, federal prosecutors said a long list of law enforcement investigators ready to take the stand is not unexpected.

“Tsarnaev can hardly have been surprised by a witness list containing a large number of evidence-handling witnesses,” the U.S. Attorney’s Office in Boston wrote in a motion fighting any delay.

“In responding to Tsarnaev’s continuing requests for information, the vast bulk of which is not required by the rules of discovery, the government has gone over and above anything the law requires,” prosecutors added. “Tsarnaev continues to complain about the volume of case-related information provided by the government even as he demands more and more of it.

Welcome to trial by ambush. This is how they do you in federal court. A defense lawyer can’t survive there unless he or she can read extremely fast and recall everything while going without sleep for days. The pressure to be perfect is enormous because any mistake, no matter how minor, could be the difference between the client living or dying.

First, do no harm.

The defense also filed an extremely unusual motion worth noting and discussing. They titled it, Motion to Protect Defendant from Prejudicial Effects of “Supporters” Demonstrations at Courthouse. I have never seen or heard of a motion like this. Most defendants in death penalty cases don’t have many supporters. They come and go quietly.

The defense team apparently is concerned about the following incident and they do not want prospective jurors exposed to similar incidents.

Shortly before the beginning of the final pretrial conference in his case on December 18, 2014, in the immediate vicinity of the courthouse, a group of demonstrators claiming to be “supporters” of the defendant were involved in a confrontation with members of the public, including a man who was severely injured by a bomb at the Boston Marathon on April 15, 2013. The demonstrators held signs and shouted statements to the effect, among other things, that the bombing and the survivors’ injuries were staged. Two news reports described the scene as follows:

His supporters, who claim Tsarnaev was set up and is actually innocent, massed outside the court building armed with provocative signs. Two women caught the eye of marathon bombing survivor Marc Fucarile, who limped by with a cane needed after he lost his right leg in the carnage. “That’s trickery?” Fucarile fumed as he lifted his prosthetic leg to show the damage Tsarnaev is accused of doing to score of innocents.

I think the word ‘aghast’ probably captures the defense reaction.

God only knows how many prospective jurors heard about this incident or read about it on social media. Judge O’Toole, to whom this case is preassigned, and counsel are going to have to voir dire (question) prospective jurors about it without actually mentioning it, just in case they do not already know about it. Better not to tell them about it, if they don’t already know. Jurors should be questioned individually out of the presence of other prospective jurors. That way their answers will not poison others.

Defense counsel expressed their concern as follows:

The continuing presence in the immediate vicinity of the courthouse entranceways of demonstrators–including those who gather to challenge as fabricated the injuries suffered by the survivors as they attempt to attend the proceedings–poses a grave threat to the fairness of the defendant’s trial. Beginning on January 5, prospective jurors and witnesses will be required to enter the courthouse through the same entranceways. Survivors, jurors, witnesses, and members of the public must be able to attend court without being assaulted by inflammatory accusations from any source. If they cannot,the fairness of the defendant’s trial is likely to be gravely harmed, in part because of the natural but false inference that the defendant and his counsel agree with the outrageous conspiracy theories that are being so vociferously advanced by demonstrators claiming to be the defendant’s “supporters.”

This motion is a very clear indication that the defense trial strategy will not involve presenting a conspiracy theory.

First, do no harm.

A life is at stake.

DISCLOSURE: I was a felony criminal defense lawyer for 30 years specializing in death-penalty defense, forensics and freeing the innocent from wrongful convictions. I also taught Criminal Law, Criminal Procedure, Wrongful Convictions and Trial Advocacy in law school. I have known Judy Clarke for close to 20 years dating back to when we were members of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL).


%d bloggers like this: