“This is by no means a mathematical or mechanical process,” said Judge George O’Toole as he instructed the jury a few moments before they heard closing statements in United States v. Dzhokhar Tsarnaev. Yet O’Toole had just presented the jurors a verdict form, the pages of which ask them—once their deliberations begin—to tally up their votes on a list of pros and cons guiding their decision to kill Tsarnaev or spare his life.
One checkmark on the fry-the-bastard side of the ledger; another in the lock-him-up-forever column. Given the cavalcade of complicating factors the two sides have asked them to consider, I bet at least a few jurors wish they weren’t banned from using laptops in the deliberation room. It might be useful to whip up an Excel spreadsheet to track the stats.
The defense offered 21 “mitigating factors” meant to convince the jury that Tsarnaev would be more justly punished by a lifetime in prison than by death. Among them:
- He was but 19 years old.
- He acted under the influence of his older brother.
- “Dzhokhar Tsarnaev has expressed sorrow and remorse for what he did and for the suffering he caused.”
The government countered with “aggravating factors” meant to justify Tsarnaev’s execution. Some of these must, under the law, be established before a jury can impose death. Others were tacked on at the prosecution’s discretion. They included:
- The existence of planning and premeditation.
- The notion that the crime was “especially heinous, cruel, and depraved.”
- “Dzhokhar Tsarnaev demonstrated a lack of remorse.”
You may note fairly stark disagreement on one of these points. Is Tsarnaev remorseful or not? The jury has little evidence with which to settle the dispute.
The government noted Tsarnaev’s calm purchase of a gallon of milk at Whole Foods 20 minutes after the bombs went off. They read aloud the “glib commentary” of his tweets from the hours and days that followed: “Ain’t no love in the heart of the city.” “I’m a stress-free kind of guy.” They presented the now-famous image of Tsarnaev flipping the bird at a courtroom security camera, offering it as proof that he is “unrepentant.”
For its part, the defense pointed to Monday’s testimony from Sister Helen Prejean (the Catholic nun and death penalty opponent made famous by the film Dead Man Walking), who met with Tsarnaev multiple times in prison. She claimed he told her, his eyes lowered, his voice sincere, that “no one should have to suffer” the way the victims did. We’ll have to take her word for it regarding Tsarnaev’s feelings on this matter. He declined to take the stand himself to make apologies or express any sorrow. This is his right—and the jury was instructed to infer nothing from it. Tsarnaev also declined to sit up straight or appear to be engaged in any way at all as witnesses testified about the day he blew off their legs or murdered one of their family members. Judge O’Toole reminded the courtroom Wednesday that the “demeanor” of the defendant during the course of the trial is not meant to enter the jury’s consideration. Still, it’s hard to believe it hasn’t lodged in the backs of the jurors’ minds.
Most of the other factors offered up by each side are pretty indisputably true. It’s hard to imagine, for instance, that absent the influence of older brother Tamerlan, Tsarnaev would have morphed into a violent jihadist. Nor would any reasonable observer deny that the Tsarnaevs’ choices of target and weaponry were, indeed, heinous.
Defense attorney Judy Clarke reminded jurors that several of Tsarnaev’s teachers had found him hardworking and respectful, and that some of his friends who testified thought he was a nice guy. She asked the jury to weigh that information in their decision. Prosecutor William Weinreb began his rebuttal by agreeing with Clarke that yes, the jury should indeed weigh all these things. For instance, he suggested: They might choose to weigh the aggravating factor that Tsarnaev shredded an 8-year-old’s body against the mitigating factor that his elementary school teachers spoke well of him. “That’s entirely up to you,” he said, with his trademark, deadpan snark.
Weinreb then cannily turned the defense team’s witnesses against them. He pointed out that the stream of attentive, dedicated teachers, coaches, and mentors that came before the court to describe what a lovable kid Tsarnaev had been contradicted the defense team’s claims that Tsarnaev’s rough upbringing played a role in his crimes. He in fact had all the support any kid could need, Weinreb argued. He also had a car, a cellphone, a laptop, high-quality public education, good medical care, and lived walking distance from Harvard Square. Described by Weinreb thusly, Tsarnaev’s childhood sounded positively cushy.
But the most interesting fight between the government and the defense wasn’t over the past. It was over the future. Clarke told the jury they were making a decision about not just who Tsarnaev was, but “who he is and who he might become.” She asked the jury, “Is his a life worth saving? Is there hope for him? Is there hope for redemption?” She framed the choice to spare him as a noble decision—one coming from a place of strength, granted by people wise and secure enough to bestow mercy.
Weinreb offered a different vision of the decades to come. If Tsarnaev were allowed to live, would he spend his days in prison staring at a wall, thinking about his victims? Or would he instead be thinking about “himself,” about “his penpals,” about “his next workout.” Weinreb asked us to imagine Tsarnaev living out his days eating, praying, exercising, reading magazines, all the while safe and well fed. “Maybe he’ll even write a book,” Weinreb snarked with disgust.
Whether Tsarnaev will be executed has been basically the only open question since the moment he was captured alive. We’re now about to find out the answer. Should the jury believe the defense when it says that Tsarnaev is “not the worst of the worst”? Or the government when it claims Tsarnaev is “callous” and “inhumane”?
The discussion inside the jury room will no doubt be intense and surreal, as 12 citizens from very different walks of life debate the gravest decision any of them are ever likely to make. And there’s no good ending here. Snuffing Tsarnaev might bring a measure of solace to some who deserve it, and I hesitate to begrudge them that. But it won’t resurrect the dead, or reattach lost limbs. Throwing him in a cement cage for 70 years isn’t a happy answer, either. Option one: He lives out the long life he denied his victims, unchanged and untouched, thinking his despicable thoughts all the way to the grave. Option two: He undertakes a journey of self-transformation and repentance. But it doesn’t much matter, because there’s no possibility of parole. (Even if he does figure out what he did wrong, do we really give a shit? He’s a day late and four dead, innocent people short.)
I don’t think either of these punishments will deter the next wannabe jihadi. I don’t think either punishment will balance the scales in any way. I just want to turn the clock back to a sunny Marathon Monday, amateur runners nearing the finish line with big smiles on their faces, friends and families cheering, the whole afternoon a celebration of human endeavor, and community, and civic joy. That can’t happen. Instead, we must do this grim business.