Tsarnaev trial penalty phase: How the defense plans to save him from execution.

Tsarnaev’s Lawyers Offer a Smorgasbord of Excuses to Save Him From the Death Penalty

Tsarnaev’s Lawyers Offer a Smorgasbord of Excuses to Save Him From the Death Penalty

Notes from different corners of the world.
April 27 2015 8:05 PM

A Smorgasbord of Excuses

The defense tries a little of everything to save Dzhokhar Tsarnaev from the death penalty.

Dzhokhar Tsarnaev suspect in the Boston Marathon bombing.
Dzhokhar Tsarnaev at 19, in an image released by the FBI on April 19, 2013.

Photo provided by FBI via Getty Images

BOSTON—On Monday, Dzhokhar Tsarnaev’s defense team launched the case for not killing their client. How will they convince jurors to spare the defendant? With simultaneous appeals to their capacities for mercy and for vengeance, it appears.

Defense attorney David Bruck’s opening statements promised evidence along these vectors:

  • We’ll hear from a scientist who studies how teens’ brains mature. He’ll speak to whether Tsarnaev’s youthful gray matter was a factor in his poor decision-making.
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  • We’ll learn about Tsarnaev’s relationship with his older brother, Tamerlan, whom the defense will portray as a domineering zealot and the bombing mastermind.
  • We’ll get some Tsarnaev family history, with a look at the unique psychology of his immigrant parents.
  • We’ll even take a detour into the history of the Northern Caucasus region, with a professorial lecture about “who the Chechnyan people are.”

It’s a broad canvas. I’m not sure any one of these tacks, on its own, can sway a jury (if that jury is otherwise predisposed to ending Tsarnaev’s life). And Bruck had to walk a very fine line. Essentially, he conceded that there could be no excuse for Tsarnaev’s crime—right before he offered up this smorgasbord of excuses.

Seth Stevenson Seth Stevenson

Seth Stevenson is a frequent contributor to Slate. He is the author of Grounded: A Down to Earth Journey Around the World.

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Monday’s witnesses all talked not about the younger Tsarnaev, but about Tamerlan. The goal was to illustrate how radical Tamerlan had grown by the time of the bombing in 2013. To this end, we heard from the imam at a Boston mosque whose sermons Tamerlan twice interrupted, shouting in objection when the imam counseled his flock to blend into the social fabric of America. We also heard from workers at a Middle Eastern food store in Cambridge, where Tamerlan once complained when he saw halal turkeys on sale for Thanksgiving-observing Muslims. Tamerlan was no fan of assimilation, it seems.

After a trial full of talk about radicalization and jihad, it was refreshing to see some moderate Muslims come before the court Monday. That imam Tamerlan argued with had previously worked as a program manager at Microsoft before becoming involved with various nonprofit Islamic organizations in Boston. He focused his lectures on ways to integrate Muslims into American life and help them “participate in the prosperity of the whole society.” Those food store workers who took the stand were nice, normal guys who had no time for Tamerlan’s extremist rants.

But with regard to the matter at hand—whether to execute Tsarnaev—Monday’s testimony was surprisingly thin gruel. The prosecution pounced on it. Said a prosecutor during the cross-examination of one of the food store workers: “So all you can tell us is that one day in 2012, Tamerlan came in and said you shouldn’t sell turkeys?” The man acknowledged as much. The prosecutor declared that he had no more questions, and he did it with mild disgust.

Later, the defense put on a music teacher from the Cambridge public high school that Tamerlan and Tsarnaev attended. The teacher talked about the day in 2004 when he broke the news that Tamerlan wasn’t good enough at piano to play in the school’s spring concert. The teacher didn’t feel physically threatened, exactly, but he assured us he could sense that Tamerlan was very bummed. Again, the cross was brutal: “We’re talking about a class that Tamerlan took in 2004?” asked prosecutor Nadine Pellegrini. “So that was nine years before the bombing?” The teacher agreed. “And he wanted to be in jazz ensemble, but he couldn’t really play the piano well?” The teacher assented to this, as well. End of cross. I had to wonder why the defense had bothered to call the poor guy to the stand. Is this truly the best they can do?

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One of the more interesting figures in this case (a person who’s barely been mentioned until now) is Tamerlan’s wife, Katherine—a suburban girl from Rhode Island who met Tamerlan in a Boston club, then converted to Islam and began to wear the hijab after Tamerlan impregnated her. Monday, we heard from Katherine’s mother and from her best high school friend. They testified that Katherine became increasingly obsessed with Islam as she spent more time with Tamerlan. We also saw text messages between Katherine and the best friend from the day of the bombing. In a curious exchange, Katherine reacts to the news with a bit of moral equivalence: “A lot more people are killed every day in Syria and other places,” she texted her friend. “Innocent people.” Whether Katherine had prior knowledge about the bombing has not been addressed in the case, and is one of the great untold tales of this whole proceeding.

The fact remains that none of Monday’s testimony, taken on its own, explains what could compel Tsarnaev to set a bomb on the ground four feet behind a row of children. But the defense hopes that the more they round out a portrait of this man as a human being—with stories about his brother and his sister-in-law—the harder it will be for the jury to kill him. A story in the Boston Globe Monday noted that the prosecutors always refer to “the defendant,” while the defense attorneys always refer to “Dzhokhar.” It’s an effort to remind jurors that he is a person, not merely the enactor of these crimes.

Defense attorney Bruck actually used the word “context” in his opening statement. He employed the now-infamous photo of Tsaranaev flipping the bird as his example. Taken as a still image, it conveys defiance and lack of remorse. But when you learn that Tsarnaev had “just been unchained after who knows how many hours,” and that his “facial expression looks like a sneer until you know he’d been shot in the face” and was still debilitated, argued Bruck, the “shocking gesture wasn’t quite as advertised.”

I’m not sure that all the context in the world can prevent this jury from seeking vengeance. Neither is Bruck—which presumably is why he threw out one more reason not to kill Tsarnaev. During his opening statement, Bruck displayed a recent New York Times aerial photo of the Colorado federal supermax prison where Tsarnaev will spend his entire life if he’s not executed. Bruck noted that prisoners see only a patch of sky and nothing else. There are no media interviews and no autobiographies permitted. Tsarnaev would face “a lifetime of thinking about what he did.” In choosing between death and life in prison without possibility of release, Bruck drew the distinction as such: “One punishment is over quickly, although after more media attention and fame and notoriety. The other punishment is over decades while he is locked away and forgotten.”

It’s such a delicate dance for the defense. Find it in your hearts, they ask the jury, to view this person as a human being. Then find it in your wills to decide that the most brutal punishment is to banish him to a hellhole that will utterly strip him of his humanity.