In this peculiar legal case, the real defense of accused Boston Marathon bomber Dzhokhar Tsarnaev will begin only after he's been found guilty.
The trial began on March 4 and has already featured 96 witnesses. But it may be over the coming months – after he is expected to shift from being an accused bomber to a convicted one – that we truly learn about the young man at the inscrutable center of this high-profile trial. His attorneys have already conceded that he committed the bombings and attacks that resulted in four deaths and more than 260 injuries.
Given the evidence heard so far, it’s likely the jury’s knowledge of the bombings far outstrips their knowledge of the defendant himself. But the next phase of the trial could represent a significant shift in tone and subject matter, as arguments focus as much on the defendant himself as the crimes he has been charged with.
Mr. Tsarnaev pleaded not guilty to 30 charges relating to the April 15, 2013 bombings. In doing so, he required federal prosecutors to prove his guilt beyond reasonable doubt.
Prosecutors have been doing exactly that since the trial began last month – presenting a long, detailed case against Tsarnaev, bookended by emotional accounts from bombing victims and their families – and last week they rested their case with a final, emotional account about the bombings' youngest victim, 8-year-old Martin Richard.
Tsarnaev’s defense team rested their case barely 24 hours later, calling only four witnesses. But the closing statements set to be heard Monday morning are in reality only half-time in a trial the court believes could run into June.
Federal law splits capital death penalty cases into two separate phases: the first determining the guilt or innocence of the defendant, the second – if found guilty – determining their sentence.
Should the jury find him guilty after they begin deliberations Monday, the same group will then hear arguments from both sides over whether Tsarnaev should be sentenced to death or life in prison – the only two possible punishments – with a death sentence requiring unanimous agreement from the jury.
And while the first phase of the trial was at times grueling for members of the jury – several breaking into tears as they listened to descriptions of the chaos near the Marathon finish line – the second phase could be even more so. Not only because more intimate testimony is expected on the physical and emotional impacts of the bombings, but also because the jury will be hearing much more about Tsarnaev himself as they contemplate whether to sentence him to death.
Tsarnaev’s defense team is expected to lay out a “Svengali” defense for their client, a strategy named after a character in a 19th century novel and meaning, in a legal context, the defense of a criminal who was “a pawn of a more influential mastermind.”
In this case the “mastermind” is being framed as Tsarnaev’s older brother, Tamerlan, who participated in the bombings but was killed in a shootout with police in the days after the attacks. Tsarnaev's lawyers hope to convince the jury Tamerlan was the principal architect of the bombings, then bullied and pressured his younger, impressionable brother into participating.
The defense has proved successful in the past, but it can require a deep exploration of the defendant’s psychology and personal history. It is a defense Tsarnaev’s lawyers likely have been researching and constructing for over a year.
Perhaps the most high-profile recent use of the Svengali defense came over a decade ago in the defense of Beltway sniper Lee Boyd Malvo, a 17 year-old who participated in a three-week shooting spree around the Washington, D.C. area in 2002 with John Allen Muhammad, a 40 year-old former National Guardsman.
If there is a blueprint for the Tsarnaev defense, it may be found in the complicated – but ultimately successful– defense of Mr. Malvo, who is serving a life sentence in Virginia for his participation in the shootings that resulted in 10 deaths and three injuries.
As in the Tsarnaev case, Malvo’s lawyers did not contest their client’s guilt. They instead presented a complex, history-laden argument – plumbing his troubled childhood in Jamaica – that he had been brainwashed by Mr. Muhammed.
“We are not suggesting to you that they got the wrong man,” Malvo’s lawyer, Craig S. Cooley, told the jury in November 2003 during his opening statement. "This is a case of indoctrinization, and the evidence in this case is going to show you a degree of indoctrinization and incredible influence exerted over this child."
Tsarnaev’s attorney, Judy Clarke, echoed those arguments in her opening statement a month ago.
'It was him'
“It was him,” Ms. Clarke told the jury, later saying that Tsarnaev followed a path “born of his brother, created by his brother and paved by his brother.”
“It’s going to be a lot to keep your hearts and minds open, but that’s what we ask,” she added.
Clarke joined the Tsarnaev defense team as a death penalty specialist in April 2013, and she is well-known for keeping high-profile clients off death row with deep, well-researched personal histories. The background is not meant to distract from or excuse the horrific acts of her clients, but instead provide the jury the broad, sometimes generations-deep, context in which the actions took place.
Such defense strategies are typically laid out long before an opening statement is made, and involve work from a mitigation specialist researching the defendant’s personal history. A mitigation specialist has been meeting with Tsarnaev since late 2013, according to the Boston Globe.
Federal law requires defense teams in capital murder cases to have at least one mitigation specialist. The American Bar Association describes them as someone who “compiles a comprehensive and well-documented psycho-social history of the client.”
Mitigation specialists, the ABA adds, “have the time and ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed.”
Malvo's lawyers built their defense around three main arguments: that Malvo's history of abandonment made him more susceptible to Muhammad's pressure and influence; that Muhammad coerced and indoctrinated Malvo in significant ways; and that Malvo's character traits also changed noticeably before, during and after his interactions with Muhammad.
Ida-Gaye Warburton, who worked on Malvo’s defense team while a law student at Washington & Lee University, said being able to track down both expert and character witnesses, who knew Malvo independently of Muhammad, was key to the defense.
“Family members are good but independent persons are even better, [like] a school teacher, a grocery store owner he may have come into contact with, someone in the neighborhood,” says Ms. Warburton in an interview. “Family members will be seen as having a bias."
Gathering that testimony was the job of Carmeta Albarus, a mitigation specialist brought in to help with Malvo’s defense in 2003. Malvo was arrested in October 2002 and she first met with him in March 2003 – with his trial scheduled for the coming November.
“The first meeting that I had with him what really struck me was how fused he was with Muhammad,” she tells the Monitor. “He didn’t see himself and Muhammad as separate entities.”
When they first met he was asking people to address him as “John Lee Muhammad,” she says. Malvo had been uncooperative with his lawyers in the early months of his defense, she says, fearing they wanted him to turn on Muhammad.
She says her first “breakthrough” with him came after she traveled to Jamaica and began piecing together his early life history. She talked to his parents, neighbors, and old school teachers, people who had known him long before the Beltway shootings, reconstructing a history of abandonment and neglect that would form a cornerstone of his defense.
Ms. Albarus testified in both phases of Malvo’s trial. Many of the people she interviewed in Jamaica and Antigua – where the two shooters first met – also testified, including Malvo's father, Leslie, his schoolteachers from Jamaica and the US, and others who knew him from his childhood.
“Bringing all the people we brought from Jamaica and from Antigua and talking about [Malvo], their personal experiences with [Malvo], that we feel was what [helped],” she says.
The Washington Post reported that dozens of witnesses painted “a detailed portrait of Malvo’s conversion from slight, obedient student to angry sniper,” as well as to his “subservient, eager-to-please nature.”
Creating a narrative
“In my opinion, the narrative is really what is able to connect with the jury,” Albarus says. “The kid who looked forward to his dad coming home and taking him for a ride, taking him for ice cream, and then one day coming home and his dad isn’t there… That resonates with a person because that’s a human story.”
In his closing statements, Malvo’s lead attorney Michael S. Arif described his client and Muhammad as a “meeting of two rivers” – Malvo the “clean” river and Muhammad the “polluting” river.
“The clean one always loses,” Mr. Arif told the jury. “It becomes somewhat polluted.”
“He became John Lee Muhammad… The child that you saw a moment ago, Lee Malvo, was gone, did not exist for all practical purposes.”
Malvo’s physical behavior changed throughout the trial as well, media reports noted. The Post reported that Malvo shifted from “aloof” and “reserved” in court to “attentive and alert,” flashing smiles at his attorneys and joking with guards.
“What you have today is a young man who was in recovery who is starting to now come back to being Lee Malvo,” Arif added. “Without sounding overly melodramatic, and I want to apologize if it does, the last victim of John Muhammad sits at the defense table today.”
The Tsarnaev defense appears to be following a similar course so far, though his lawyers have never suggested he was brainwashed by Tamerlan. Malvo and Tsarnaev lived much different lives prior to their infamous crimes, but their defense is likely to include the same witness-driven insights into their childhood histories and hardships.
Some of those pieces have already been presented in the first phase of the trial.
Jurors have seen, for example, Tsarnaev’s college resume and a letter to his college, written months before the bombings, blaming poor grades on a collapsing family life. They’ve heard testimony from an old school friend that he was “one of the realest, coolest kids I’ve ever met.”
Albarus, now working as a social worker and mitigation specialist in New York, has been casually following the Tsarnaev trial. She says she is “very confident” in the defense team’s strategy.
“They have the preeminent capital defense lawyer,” says Albarus. “You do not get better than the team you have there.”
Indeed, lead defense attorney Judy Clarke has a history of compiling exhaustive histories of her clients. And her record in death penalty cases speaks for itself: she has defended some of the most notorious killers in US history – including Unabomber Ted Kaczynski, Tucson shooter Jared Loughner, and Susan Smith, convicted of drowning her two young children in a South Carolina lake. They all received life in prison instead of the death penalty.
For her defense of Ms. Smith, long hours of interviews in county lockup revealed a previously unknown history of family molestation and suicide, personal suicide attempts and infidelities with her husband. For Mr. Loughner, she reconstructed the mental health history of his family dating back to 1893.
The prosecution, for its part, is expected to try and keep the jury’s attention focused on Tsarnaev’s specific crimes, according to David Hoose, a Northampton, Mass. attorney and an expert on death penalty cases.
“The government is going to say that for some crimes there’s only one penalty that accurately reflects the outrage for what’s been committed,” says Mr. Hoose.
In his opening statement, prosecutor William Weinreb argued that Tsarnaev “believed he was a soldier in a holy war against Americans.”
“It doesn’t matter what role each of [the brothers] played, so long as you find they were partners,” Weinreb added. “He has a side to him that he kept hidden in from his closest friends,” including reading terrorist literature online.
Clarke, meanwhile, argued that Tsarnaev “spent most of his time on the Internet doing things that teenagers do” – involving Facebook, cars, and girls.
Indeed the sentencing phase as a whole could be defined by this sparring over whether Tsarnaev was a secret jihadist or a normal teenager under the power of his brother.
This Jekyll-and-Hyde battle has already played out in an unusual way in front of the jury, as the two legal teams argued over two divergent Twitter accounts Tsarnaev is believed to have used: one seemingly normal, one seemingly focused on radical Islam.
It’s possible, with both sides spinning their differing narratives, that a truly accurate picture of Tsarnaev will never emerge. (The one person who could settle the matter definitively – Tsarnaev himself – is unlikely to testify owing to the risk he could compromise his own defense.) If it does, it will come in the next few months of the trial.
Judge George O’Toole limited questioning on Tamerlan in the first phase of the trial, but in the sentencing phase the defense is expected to have much more latitude in questioning witnesses about the brothers’ relationship. His lawyers will also be able to delve into the mitigation case they have been researching since late 2013.
The trial so far has fixated on the events around the bombings themselves, but the sentencing phase will broaden its scope significantly. The first phase mostly examined events from April 15, 2013 to April 22, 2013 – when a bloodied Tsarnaev was pulled out of a boat parked at a house in Watertown, Mass. The second phase could pull back as far as the 1990s conflict in Chechnya, or even the forced relocation of Chechens (including Tsarnaev’s grandfather) under Josef Stalin in the 1940s.
Warburton says the defense will be an “uphill battle” for Tsarnaev’s lawyers because a layperson may regard the defense strategy with a "certain level of skepticism.”
“Right now the jury may be detached because of how horrific it is,” she adds. “What needs to be established is the mindset, his mental state when this occurred…. Certainly when it comes to the difference between life and death it’s worth being examined very seriously.”