May
17

What Would Tsarnaev Say?

Much has been made about Dzhokhar Tsarnaev’s demeanor during his recent trial. For 10 weeks he sat in a Boston courtroom. Observers report that he showed emotion only once, when an aunt testified in a vain effort to spare him the death penalty.

Just how should he have reacted? The case avoided any meaningful explanation of why he killed. It was a drama without a real plot.

The prosecution and the defense of this case unfolded in a scripted, almost mechanical fashion.

Death penalty cases proceed on a two-step drill — two trials heard by the same jury. The first trial is the so-called “guilt phase.” Did the defendant commit acts that make him “death eligible?”The prosecution offered days of emotionally devastating testimony in this phase. Victim after victim of the marathon bombing described their pain, their suffering and their loss. There were videos taken in the immediate aftermath of the blasts. It was gripping and altogether unnecessary: Tsarnaev admitted his involvement in the event.

The trial that mattered, the real trial, was the “penalty phase.” In this trial, the government sought to prove what are known as aggravating factors, things that make the crime so horrible as to justify death as a penalty; the defense seeks to prove mitigating factors.

Prosecutors again reverted to emotionally charged testimony about the horror of it all, lingering over the deaths, the injuries, the loss and suffering of the victims. The defense sought to explain that Tsarnaev, 19 at the time of the bombing, had fallen under the sway of a vengeful older brother, that his mother helped transform him into a radical, that his father was ill and unavailable.

The jury then decided whether the aggravants outweighed the mitigants; their duty was to sentence the defendant to death if the aggravants were more persuasive.

A carefully selected jury in Boston made short work of the guilt phase, and concluded quickly that Tsarnaev should die.

It was predictable theater, and some, including me, thought it might just be enough to spare Tsarnaev’s life. Massachusetts, after all, had long foresworn death as a civilized response to crime.

The federal government brought the death penalty to Boston. As near as can be told, Tsarnaev became a terrorist in reaction to the deaths caused by the United States around the world in its decade-long war on terror. He brought the same sort of anonymous and terrifying death to American streets that our drone strikes have brought to hundreds of civilians — including children — in Pakistan, Yemen and Somalia.

Federal prosecutors sought the death penalty in a state in which the death penalty had been repealed as a matter of state law. One of the vagaries of federalism is that Uncle Sam can waltz into a state and tell its citizens it knows best: local sensibilities may militate against death, but Uncle knows what’s good for the republic.

During trial, the Boston Globe editorialized against the death penalty. A poll conducted during trial showed that the vast majority of Bay State residents did not want Tsarnaev killed.

But the jurors in the Tsarnaev case were not a representative sample of Massachusetts’ residents. The jury was “death qualified” — jurors with philosophic objections to the death penalty were kept from serving.

After the trial, Carmen Ortiz and a gaggle of trial prosecutors moped for the press, all looking tight-lipped but satisfied that “justice” had been done at trial. The photo looked like a wanted poster for carriers of a virulent strain of American exceptionalism.

What’s a prosecutor tell his children after a trial of this sort? “Daddy got permission to kill the bad guys, honey?”

What would Tsarnaev have said if he had spoken?

Would he have reminded us that as of April 12, the United States had conducted 415 drone strikes in Pakistan, killing upwards of 2,500 Pakistanis? That at least 400 of those killed were civilians, and somewhere between 172 and 207 were children?

Would he have told us that during the same period, 100 or so U.S. drone strikes hit Yemen, killing scores of civilians, some of them children? (These figures are reported by the Bureau of Investigative Journalism, not by the U.S. government, which regards our kill stats as top secret.)

Don’t get me wrong. Nothing justifies Tsarnaev’s decision to kill. His defense team did not seek to justify it. But it failed in not seeking to explain it in meaningful terms. Things happen for a reason; Tsarnaev became a terrorist in reaction to terror he felt powerless to stop.

Judy Clarke, Tsarnaev’s lead defense lawyer, is not to be faulted for trying a non-political case. But the strategy was likely doomed to fail. Plenty of us grow up amid privation, hardships and mental illness without going off the deep end.

Dzhokar Tsarnaev went off the deep end. His acts were political. The defense offered was little more than pop psychology and Sunday-morning sociology to try to blunt the jagged edge of extremism.

I was struck by the courtroom renderings of Tsarnaev. The eyes seemed almost vacant. He was a ghost in the room.

On the morning after his verdict, I studied his picture for a good while before sitting down to write this. The words of Friedrich Nietzsche came to mind: “(W)hen you gave long into the abyss … (t)he abyss gazes also into you.”

Tsarnaev lost himself gazing into an abyss most of us refuse even to consider.

We learned nothing in the trial of the United States v. Dzhokhar Tsarnaev other than that we can kill. But we already knew that, as the death toll from drone strikes illustrates.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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