Tsarnaev defense: spare him the death penalty, put him in supermax prison

The ADX from above. Credit Jamey Stillings
for The New York Times

The legal team for convicted Boston Marathon bomber Dzhokhar Tsarnaev on Monday delivered its opening statement in the sentencing phase of the trial and also targeted the character of his older brother and co-bomber, Tamerlan.

The final act of the Dzhokhar Tsarnaev trial began Monday with his defense team laying out in its opening statement why its client should be spared the death penalty.

In front of a courtroom at almost full capacity, defense attorney David Bruck opened the morning session with a soft and measured plea to the jury to instead sentence Mr. Tsarnaev to life in prison for participating in 2 bombings near the Boston Marathon finish line in April 2013 that resulted in 3 deaths and more than 260 injuries.

About 3 weeks ago, a jury convicted him on all 30 charges related to the bombings, triggering a sentencing phase in the trial to determine his punishment: either death or life in prison without the possibility of release. Last week, after 3 days of testimony, the government rested its case in that phase, calling for Tsarnaev to receive the death penalty.

For the defense, the sentencing phase will allow it to address issues it's been able only to dance around so far in the trial. Since the 1st round of opening statements in early March - when defense lawyers essentially admitted Tsarnaev's guilt - their primary goal has been to spare his life.

In his almost hourlong opening statement, Mr. Bruck began by acknowledging the horror of the bombings and the suffering of the hundreds of victims that the jury has been hearing about throughout the trial.

But he also used that graphic testimony to make the point that the death penalty can never match or cancel out the suffering of the bombing victims.

"You've now seen more pain and more horror and more grief in this courtroom than any of you will have thought possible," Bruck said to the jury. "There is no evening the scales, there's no point hurting him the way others were hurt because it can't be done. All you can do is make the best choice."

The sentencing phase also enables the defense to dig into an argument it touched on but lightly in its initial defense - that is, the role of his older brother and co-bomber, Tamerlan. According to the defense, Tamerlan Tsarnaev was the radicalized mastermind of the bombings who pressured his younger brother into helping execute his own personal jihad.

"No one is going to claim that Tamerlan forced Dzhokhar to commit these terrible crimes," said Bruck. "But the evidence will show that if Tamerlan hadn't led the way, Dzhokhar never would have done any of these things."

"How do we know this?" he added. "Because Tamerlan's motivation to carry out this attack was so much stronger and had been building for so much longer."

The 1st slate of witnesses on Monday saw the defense aggressively pursue a strategy of portraying Tamerlan as an imperious, irascible man who grew increasingly radical over the years.

The 1st 3 witnesses were men who saw Tamerlan shout down an imam twice in the months before the bombings: Laith Albehacy, Abderazak Razak, and Loaf Assaf, the imam whom Tamerlan confronted.

In late January 2013, Mr. Assaf described Tamerlan interrupting a sermon he was giving comparing the prophet Muhammad to Martin Luther King Jr.

"He was fired up, very hot, and he was shouting, 'This is wrong,'" recalled Assaf. "He kept saying, 'This is not Islamic, this is not right, you are a hypocrite,' and people at the time were telling him to shut up and sit down."

Judith Russell - mother of Katherine Russell, Tamerlan's widow - testified later in the afternoon that he tried to talk to her about Islam and politics "every time I saw him."

"He always wanted to talk about how Islam was good, and over time it came to seem an obsession," Ms. Russell said. "Over the time I knew him, I saw a progression in the intensity of his beliefs."

In his opening statement, Bruck also outlined how the defense plans to show how the Tsarnaev brothers' turbulent and nomadic childhood - disrupted by decades of conflict and forced migration in their native Chechnya - helped contribute to their final decision to commit the bombings.

On the day the defense began to make its case that Tsarnaev should be spared the death penalty, another poll was released showing that less than 20 % of Massachusetts residents believe he should be put to death for this crime.

These results - which continue a trend among residents in the region favoring life in prison over death for Tsarnaev - also found that, despite these specific opinions on Tsarnaev, nearly 1/3 of respondents support the death penalty for the most egregious crimes.

"To voters, it would seem death is too easy an escape," said Frank Perullo, president of Sage Systems, which conducted the poll for The Boston Globe.

Near the end of his opening statement, Bruck tried to show just how punitive life in prison would be for Tsarnaev. He showed the court aerial pictures of the sprawling, snow-covered federal super maximum security prison in Florence, Colo. The prison - also known as ADX Florence or the "Alcatraz of the Rockies" - houses the male inmates in the federal prison system deemed most dangerous and in need of the tightest control.

"This is where the government keeps other terrorists who used to be famous but aren't anymore," he told the jury.

He then moved to another photo, a close-up of a small barred window staring up at the sky. The window, Bruck said, represents inmates' only contact with the outside world for the majority of their sentence. Communications would be strictly limited in the facility, he added, and a camera in his cell would watch him 24 hours a day.

"No matter what [Tsarnaev] does now, no matter what regrets he feels, no matter how he matures, no matter what amends he might want to make, his last choice came when he was 19, and he will never have the chance to make another choice again," said Bruck.

Source: Yahoo News, April 28, 2015

Boston Marathon bomber tries to avoid death penalty

Attorneys for Boston Marathon bomber Dzhokhar Tsarnaev on Monday told a jury deciding whether to put him to death that there is no punishment they can give him that will equal the pain he's caused his victims.

"There is no sense in trying to hurt him as he hurt them because it can't be done," attorney David Bruck said in explaining why the 21-year-old should be spared the death penalty.

Bruck presented the opening statement for the defense in the penalty phase of Tsarnaev's death penalty trial. The same 12 jurors who convicted him on all 30 counts will soon decide whether he will be executed or sentenced to life in prison with no chance for parole.

Bruck told jurors that no one forced Tsarnaev to do what he did, but the jury should consider more than the crimes he committed.

"It's more complicated than just the crimes themselves," he said.

He said Tsarnaev was responsible for so much pain, horror and grief that no punishment could equal his crimes. It is impossible to try to avenge the victims to even the score, he told the jury.

He showed aerial photos of ADX Florence, a supermax facility in Colorado where Tsarnaev would spend the rest of his life. Sending him there would mean he could never hurt any one again, could not do media interviews and could not write an autobiography. He would also avoid heroic status among extremists.

Bruck said the jury will hear how his muscular older brother, Tamerlan, had taken control of the family when their mentally ill father could no longer handle that traditional patriarchal role, a strong feature of their Chechen culture.

Tsarnaev never defied his brother, who couldn't hold a steady job and was obsessed with jihad to the point of almost thinking about nothing else.

Dzhokhar Tsarnaev "was a good kid," Bruck said. "Dzhokhar really was what he appeared to be - a lost teenager."

He said life in prison would be best for everyone as Tsarnaev would "be locked away and never be heard from again."

"His last chance happened when he was 19," Bruck said, "and he will never be given another."

Defense attorneys used their 1st witnesses Monday to paint a picture of an older brother who was quick to anger, bully and insist on conformity to a fundamentalist style of Islam.

Witnesses said Tamerlan was at one time an outgoing partier, but came to renounce alcohol and marijuana at the same time he started wearing traditional Islamic dress around 2011. Two witnesses recalled him standing up and interrupting Friday sermons at the Islamic Society of Boston mosque in Cambridge.

In one Jan. 2013 sermon, Loay Assaf tried to compare Martin Luther King Jr. to the prophet Mohammed. But Tamerlan angrily leapt to his feet, shouted and shook 2 fingers in Assaf's direction. He objected to the comparison of the prophet to a kafir, or infidel.

"He was fired up, very hot - I could see his face was made to red," said Loay Assaf, an imam who gives monthly sermons at the Cambridge mosque. "Even his stance was fighting stance."

Abderrazak Razak said he'd Tamerlan get angry at the Cambridge store where he sells Middle Eastern foods and halal meat. When he was selling halal turkeys at Thanksgiving one year, Tamerlan grew angry and rebuked him.

"He yelled at me that this is haram, that it is not right to sell turkeys," Razak said. In the witness box, he stood and showed what Tamerlan did with his hands and arms, pointing a finger accusingly and waving his long, muscular arms.

"All you can tell us is that in 2012 Tamerlan Tsarnaev told you that Thanksgiving is not an Islamic holiday, and you shouldn't sell turkeys," said Assistant U.S. Attorney William Weinreb in cross-examining Razak.

"Yes," Razak said.

Since Tsarnaev's trial began March 4, the defense has argued that Tsarnaev was the lesser of two perpetrators in the April 15, 2013, bombings that left three dead and more than 260 injured. But jurors have heard few details about his relationship with his older brother, alleged mastermind Tamerlan Tsarnaev, because discussion of family history was off limits n the guilt phase.

Now family history and other potentially mitigating factors are fair game for the defense to press. Relatives of Tsarnaev arrived in Boston from Russia last week and are expected to testify.

Defense attorneys face an uphill challenge, according to Chris Dearborn, a criminal defense attorney and professor at Suffolk University Law School.

"He's now been convicted," Deaborn said. "The only thing you can do to save his life from a defense perspective is to try to find some aspects of his character, his characteristics or his development that would mitigate" the acts he committed.

"They have to walk a fine line between humanizing the kid and not painting him as a normal kind of kid because he's clearly not," Dearborn said. "The better bet is to focus on how influenced he was and how things that happened historically in his life contributed to that influence."

Tsarnaev entered the courtroom at 9:55 a.m. wearing his usual black sport jacket. Under his jacket, he wore a blue, v-necked T-shirt. His wavy hair was a bit messy as usual. His face was clean-shaven around his goatee.

He did not look at the galley as he walked to his seat, even though he has family members in the United States who have come from Russia to support him. None of his family members were noticeably present in the galley.

The courtroom was packed to capacity. Members of the general public also gathered in a separate courtroom to watch proceedings on a monitor.

Source: USA Today, April 28, 2015

Boston Marathon bomber unlikely to be executed - even if jury votes for death

Nationwide shortage of lethal injection drugs has only made it less probable that the federal government - which has only executed 3 people since the late 60s - will put Dzhokhar Tsarnaev to death

Bill Richard has been watching the government seek death for his son's killer for months.

Since the beginning of the trial of Dzhokhar Tsarnaev, Richard, whose 8-year-old son Martin was 1 of 3 people killed at the finish line of the 2013 Boston Marathon and whose 6-year-old daughter Jane lost a leg, has sat in the courtroom almost every day. Often, his wife Denise, who was blinded in 1 eye by the bomb that killed her son, sat by his side.

When, in April, the jury returned a verdict of guilty on all 30 counts - including 17 that carry a possible death sentence - Richard was there.

Since January, federal prosecutors have called almost 100 witnesses, single-mindedly pushing for one simple goal: to put Tsarnaev to death. Now, as the defence opens its case for why Tsarnaev should avoid a death sentence on Monday, the trial is reaching its climax. Once the defence rests, in as soon as a week, the jury will be asked to decide whether the 21-year-old should live or die - the only real issue to be settled in a case in which his involvement in the bombings was never really in doubt.

But if the jury votes for death, their verdict may not be the end. Since the late 1960s, despite pursuing hundreds of capital cases, the federal government has executed only 3 people. And with a nationwide shortage of injection drugs caused by an international boycott by pharmaceutical companies - pushing the issue to the political fore - Tsarnaev's fate would likely remain uncertain. And even if execution drugs could be procured, the case could easily be tied up in appeals for decades.

The Richards have been integral to the government's case for death. When called to the stand, Bill Richard's testimony was among the most memorable, the most gut-wrenching, even among a litany of victims telling heartbreaking stories of the violence wreaked upon them.

And when the prosecution opened the sentencing phase - the part of the trial where the jury will decide whether to send Tsarnaev to his death - they did so in front of an easel displaying a picture of Martin Richard, dressed in green and wearing beads for St Patrick's day. On that day, too, Bill Richard was there.

But the Friday before the government began to lay out its case for death, the Richards used a front-page editorial in the Boston Globe to beg the government to abandon its push for execution, in part because the endless appeals that would likely ensue would give them and other victims little chance for closure.

"The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives," they wrote. "We hope our 2 remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring."

'The only thing that's certain is that he will never breathe free air'

Experts in the federal death penalty predict that complex and prolonged appeals lie ahead which, together with the crisis in the system of lethal injections, mean that it might be years before he enters a death chamber - if he gets there at all.

"The question is how will Tsarnaev die in prison. Will he die of a heart attack in his cell aged 60, of old age at 80, or will he be executed? The only thing that's certain is that he will never breathe free air again," said George Kendall, a New York lawyer who has been involved in capital cases for the past 30 years.

According to the Federal Death Penalty Resource Counsel Project, between 1988 and 2014 the federal government took 229 capital cases to trial. In only 1/3 of them did juries condemn the defendant to die.

In some of those cases, a plea deal was reached - such was the case for Unabomber Ted Kaczynski, whose lawyer, Judy Clarke, is also representing Tsarnaev. But no such plea deal was made available in the Boston case; the government has been implacable in seeking death.

A death sentence would make Tsarnaev the 62nd inmate of the federal death row hosted at the US penitentiary at Terre Haute, Indiana. He would take occupation of a cell besides other condemned men whose racial composition is 44% African American, 39% white, 13% Latino and 2% each Native American and Asian.

The longest-standing members of the group have already been awaiting execution for 22 years, an indication of the pressures facing the federal death penalty. Since 1963, the federal government has put only 3 civilians to death (most executions in the country having been carried out by individual states such as Texas, Florida and Missouri).

The most notorious of them, Timothy McVeigh, was executed in June 2001 for the Oklahoma City bombing that last week marked its 20th anniversary. The other 2 were Juan Raul Garza, who was put to death 8 days after McVeigh for a triple drug murder; and Louis Jones, who was given a lethal injection in March 2003 for the rape and murder of a US army private.

Most of the men on federal death row were put there for reasons that are only tangentially connected to the federal government. Marcivicci Barnette, for instance, was involved in a carjacking in which he killed his former girlfriend and another man - murder during carjacking being classified as a federal crime. Alfred Bourgeois killed his daughter, but it was only because he did so on a US naval base that earned him a federal trial.

Only a small percentage of cases involved what most people would think of as definitive federal issues such as terrorist attacks or, as in both the Oklahoma City bombing and the Boston Marathon attack, an outrage perpetrated on the American public. "The Tsarnaev case is an outlier - it's in the same category as McVeigh and Oklahoma City, but can't be compared with almost everyone else on federal death row," Kendall said.

Richard Burr was a member of the legal team that defended McVeigh at his 1997 capital trial. He has watched the Tsarnaev trial in Boston with great interest, seeing in it the same intense pressure for a result that he experienced with McVeigh 18 years ago.

Burr expects that the peculiar difficulties that Tsarnaev's defense lawyers have had investigating their client's background in Kyrgyzstan, combined with Judge George O'Toole's insistence on pressing ahead with a trial date, will provide plenty of grounds for a robust appeal that could last 10 years or more.

"It's really critical to allow the defense time to do a thorough investigation into mitigation of their client. This judge seems to have felt pressure to get this case to trial - that's a dynamic often involved in these cases of public attacks."

Burr could not say what motivated O'Toole to push ahead with the trial despite the defense team's struggles. "But it seems to me unfortunate as it makes the entire process of defending someone much more difficult," he said. "Juries are entitled to hear the best mitigation if there is to be any integrity in the federal prosecution system."

In the McVeigh case, Burr said he and his co-counsel were given plenty of time to prepare, but shortly before the trial opened a confidential file in which the defendant described how he had committed the Oklahoma City bombing was obtained by a reporter and published, throwing the whole defense case into crisis. Burr pleaded with the judge to delay the trial to avoid a prejudiced jury, but to no avail.

That went on to become a priority issue raised in subsequent appeals, which despite being fast-tracked by the courts looked set to last several years until McVeigh himself decided to give up the fight. "He became reconciled to the fact that he was going to be executed. He sort of lost hope," Burr said.

Should a similar high-speed appeals process be introduced for Tsarnaev, the federal government would still have to contend with the ongoing chaos in the lethal injection system. The US government may be among the most powerful on earth, but that does not immunize it from the shortage of lethal drugs that has affected death penalty states as a result of a worldwide boycott.

A dearth of lethal injection medicines has propelled states such as Oklahoma and Arizona to take increasingly extreme measures in using experimental drug combinations - the subject of oral hearings at the US supreme court on Wednesday. Following a challenge from 3 inmates of federal death row, the US government has effectively put all executions on hold since 2006, and is currently involved in a lengthy review of its death penalty protocols. Some states have sought alternatives, like firing squads in Utah or nitrogen gas in Oklahoma.

Jennifer Moreno, a staff attorney at the Death Penalty Clinic at Berkeley Law, said in contrast to the unseemly scramble for quick solutions that had been seen in several death penalty states, the federal approach to finding an alternative method of execution appeared to be measured and appropriate.

"The states have engaged in questionable legal positions such as buying lethal drugs from overseas or using lightly regulated compounding pharmacies," Moreno said. "I don't think we are going to see the federal government do any of that."

But the dilemma of the drugs adds yet another layer of complexity in the Tsarnaev case. The US government is clear about its desire to strap Tsarnaev to a gurney and pump lethal poisons into his veins. Even if the government can convince the jury that this is what Tsarnaev deserves, getting there may not be easy.

All of this, the Richards claim, means that if the jury votes for death, their ordeal cannot be over. But while the jury are of course banned from reading media coverage of the trial - Judge O'Toole has repeatedly stressed that jurors cannot even discuss it with family members - the sense on the streets remains that it would be far better to lock him up and throw away the key, so that everyone can get on with their lives. A Boston Globe poll released Sunday found less than 20% of Massachusetts residents support the death penalty for Tsarnaev; in the city of Boston, that number was as low as 15%.

This is almost certainly going to be part of the defense's argument as they plead for his life. Clarke, who is herself an avowed opponent to the death penalty, is likely to make an impassioned plea for mitigating factors - that Tsarnaev was weak, that he was manipulated by his older brother. Throughout it all, the Richards will be watching and waiting.

Whether they will get their wish will rest in the hands of the jury.

Source: The Guardian, April 28, 2015

Related articles:
- Norway jails "sane" Breivik for maximum 21-year term, Reuters, Aug. 24, 2012
- Anders Behring Breivik (All blog entries)

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