How do you mount a not guilty defense when you’ve already acknowledged culpability? Dzhokhar Tsarnaev’s lawyers are betting that not saying much at all in the first phase of the trail is the best way to go, as they rested their case today, just a day after beginning it. Following an admission that “it was him” during the team’s opening statement earlier this month, the defense called only four witnesses. Their modest, sole hope was to raise questions about how actively Dzhokhar was involved the planning of a plot that they claim was spearheaded by his brother, Tamerlan. (The prosecution maintains he played something like an equal role.) The minimalist approach was part of a strategy to concentrate their efforts on the sentencing phase of the trial, which would commence after a guilty verdict.
And a guilty verdict is a near certainty. The government wrapped up its 15-day, 92-witness case yesterday with the grim testimony of Dr. Henry Nields, the medical examiner who performed the autopsy on 8-year-old bombing victim Martin Richard. Several of the jurors were visibly in tears as they were shown autopsy photos of Richard’s injuries, including a large hole in his abdomen through which his intestines were visible.
By comparison, the defense’s case barely existed. Yesterday team Tsarnaev called Gerald Grant, a computer forensics investigator, to the stand and asked him about phone records, GPS records, and metadata from tweets in an attempt to knock down the prosecution’s suggestion that Dzhokhar was present with his brother when the bomb materials were purchased. Today, they called digital forensics expert Mark Spencer to address whether the digital issues of the online al Qaeda magazine Inspire found on Dzhokhar’s laptop could have been saved there by Tamerlan. (Maybe?) The final witness was FBI fingerprint examiner Elena Graff, who testified that objects allegedly used in constructing the bombs — including duct tape, a transmitter and a soldering gun — showed prints from Tamerlan but not Dzhokhar. After Graff was excused, the defense announced that she had been their final witness. Closing statements will likely occur next week.
The expertise of defense lawyer Judy Clarke, who has kept clients like Ted Kaczynski, Jared Lee Loughner, Zacarias Moussaoui, Susan Smith, and Eric Rudolph off death row, will really be put to the test after their client is found guilty. This focus on the sentencing phase, and staving off the death penalty, makes the defense’s decision to immediately acknowledge guilt, while still pleading not guilty, a sensible one, according to legal experts. “Interestingly enough, that’s not unusual in a death case,” says Nancy Gertner, a retired federal judge from Massachusetts. “You communicate with the jury that you’re not wasting anyone’s time, that you’re going to focus on the things that matter.” In a situation where the death penalty is on the table, there’s little advantage to pleading guilty, even if the case leaves no doubt about guilt.
“It’s widely believed that pleading guilty without a government recommendation for a sentence is a tremendously dangerous thing to do in a death penalty case,” Gertner says. “If the government won’t agree to a plea with a recommendation of life, it’s much better to plead not guilty, try the crime and then go on to the sentencing phase on the theory that jurors will compromise on the death penalty.” If a defendant pleads guilty, the trial immediately goes to the sentencing phase and the jury is asked to render a verdict only on the question of death.
That second phase is likely to be much more theoretical than the first and bring with it the murky questions of religion, politics, and motivation that surround Tsarnaev. “Things like his family background, relationship with his parents, any indication of a psychological problem, any indication of a drug problem — those things which ordinarily don’t come into a trial — would come into the penalty phase of this case,” Judge Gertner explained.
While sealed witness lists make it unclear exactly what will be broached at that next step, Judge George O’Toole may have inadvertently given a preview early on in the case. After more than one government witnesses referred to overseas conflict, he sustained an objection from the defense. His explanation? “I don’t want to hear the word Iraq or Afghanistan until we get to that stage of the case.”