Closing arguments completed today in Tsarnaev penalty phase

After 63 witnesses testified in the penalty phase, Steve Mellin stepped up to the lectern in courtroom 9 this morning, faced the jury and gave the government’s opening closing argument. Judy Clarke gave Jahar Tsarnaev’s closing argument. William Weinreb delivered the government’s rebuttal argument. The jury has retired to the jury room to begin deliberations. No one expects a verdict today.

The government led off, since it has the burden of proving beyond a reasonable doubt that the aggravating evidence sufficiently outweighs the mitigation evidence. If the jury unanimously agrees that the government satisfied its burden, it will sentence Jahar Tsarnaev to death. That means that the sentence will be life without possibility of parole (LWOP), even if 11 jurors agree that the government met its burden, but one does not.

I was surprised that the government doubled down on Jahar Tsarnaev’s middle-finger salute to a video camera to prove absence of remorse while he was waiting in a holding cell for his arraignment. They clearly took it out of context, as became evident when the entire clip was shown. To double down in both closings today really confirmed what I have been saying ever since they got caught. Their objectivity and professionalism was overcome by their blood lust. They should be embarrassed and remorseful, but they aren’t. That makes them hypocrites in my book.

Before Steve Mellin began his argument, Judge O’Toole spent more than an hour reading the instructions aloud to the jury. Important distinctions to keep in mind are:

1) aggravating factors must be proven beyond a reasonable doubt, whereas mitigating factors only need to be proven by a preponderance of the evidence;

2) jurors must unanimously agree that an aggravating factor has been proven beyond a reasonable doubt to consider it in determining the sentence, whereas they do not have to unanimously agree that a mitigating factor has been proven by a preponderance of the evidence;

3) jurors must individually decide how much weight to assign to the aggravating and mitigating evidence;

4) weight cannot be determined by any objective, mathematical or mechanical formula; and

5) since the death penalty is never automatic in any case, a juror can decide that the aggravating evidence does not merit the death penalty, even if there is no mitigation evidence.

For example, despite what he did, Jahar’s friends described him as kind and his aunts and cousins love him. Pursuant to these instructions, a juror could decide that the evidence admitted in aggravation does not sufficiently outweigh the evidence admitted in mitigation and vote to impose a sentence of LWOP. Or a juror could similarly decide that the evidence admitted in aggravation does not sufficiently outweigh Jahar’s father’s mental illness, his mother’s emotional instability and her religious extremism and their abandonment of the family leaving Tamerlan in charge.

You can expect Judy Clarke will focus on all mitigation factors, including his age, immaturity and absence of a criminal a criminal record, as well as the ones I mentioned in my examples in the preceding paragraph.

The following quotes are from the twitter feed by the pool of reporters in court covering the trial.

Steve Mellin began, “There’s so much death and loss and devastation in this case, it’s hard to know where to begin.”

“He killed indiscriminately to make a political statement. His actions have earned him a sentence of death. The defense will ask you to value the defendant’s life, but he did not value the lives of his victims.”

“After causing all this pain and suffering, this defendant went out and bought a gallon of milk. He acted like it was just any other day . . . he didn’t care.”

Regarding what Jahar wrote in the boat, “No remorse, no apology. Those are the words of a terrorist.”

“Remember the river of blood running down the sidewalk.”

“Death and misery is what he sought that day. There is no just punishment other than death.”

“What deserves more weight? What the defendant did or the speculation of what Tamerlan said?”

“Nowhere in that manifesto did he write, my brother made me do it.”

“He made a conscious decision to destroy loving and caring families. The mitigating factors are weightless.”

“All murderers start out as cute children. But sometimes, cute children grow up to be bad people.”

“After all the terror, carnage and fear that he caused, the right punishment is clear. The only sentence that will bring justice to this case is death.”

Judy Clarke began her closing after the lunch break.

“Jahar still had friends [after the bombing]. They said he was loyal, laid-back, funny. Sweet, shy and goofy.” one girl said.

[In the two years Tsarnaev has been in prison], “He’s never tried to influence anybody about his beliefs… never tried to break the rules.”

Over two years in prison, and all the government has on Tsarnaev is the still image of a middle finger. They took the clip entirely out of context..when he was called on it what did he say? I’m sorry. He apologized.”

“What unrepentant … young jihadi is going to meet with a Catholic nun? The picture the government painted of Tsarnaev as unrepentant & unchanged is not true. We ask you to reflect on Sister Helen Prejean’s testimony. It shows the great potential for redemption. Government may tell you he pulled the wool over Sister Helen’s eyes. She’s experienced and wouldn’t lie about what she thinks. He is grown. He is sorry and he is remorseful.”

“You can find one mitigating factor outweighs all aggravating. You can find no mitigating factors and still give life sentence.”

“You have an obligation to hear each other. You have no obligation to vote for death. No one of you has to ever, ever vote for death penalty”

“The law values life and you have no responsibility to vote for death. Each individual is a safe guard” against the death penalty.”

“He will die under bleak conditions, with no fame and no attention, and no glory or stature that martyrdom might bring.”

“Even if you believe that is who [the government says] he is, that is not who we are,”

Life in prison “reflects justice and mercy” and allows for redemption.

“Mercy is never earned but it is bestowed,”

William Weinreb spoke in rebuttal.

“Where is the evidence of brainwashing or mind control? Where is the evidence that he was under his brothers spell?”

“The whole middle finger video was worse than just clip. He was remorseless in court too.”

“Tsarnaev’s friends, relatives, teachers, told you who he was. His crimes tell you who he is.”

“Yes, you know who Tsarnaev was as a child. But you must consider who he became as an adult.”

“Life is the minimum punishment allowed by law for this, does he deserve the minimum punishment for those four deaths?”

Sister Helen Prejean spoke today for Jahar Tsarnaev

The defense and prosecution rested today and it looks like the jury is going to have to decide what sentence to impose without hearing directly from the defendant, Jahar Tsarnaev. Instead, they heard from him indirectly through the testimony of Sister Helen Prejean who met with him in March at the request of the defense team. Sister Helen is a Catholic nun best known for her opposition to the death penalty and her book, Dead Man Walking.

I walked in the room and looked at his face and I remembered thinking, Oh God, he’s so young . . . He said it emphatically. He said [refering to the Boston Marathon bombing victims], ‘No one deserved to suffer like they did.’ He kind of lowered his eyes. It was his voice. It had pain in it.

I’ve said many times that, if Jahar Tsarnaev wants to avoid the death penalty, he will have to own what he did, accept responsibility, express remorse and ask for mercy. He confessed his sin through Sister Helen.

Rather interesting to have a Muslim boy confessing his sin to a Catholic nun.

Whether her testimony on his behalf will carry the day remains to be seen.

I certainly hope it does.

All of this happened today without hearing the word allocution.

Closing arguments will begin Wednesday morning.

Boston Bombing News: Too “Dangerous” to Be Spared Execution?

(The following is my account of my observations and perceptions having attended the eighth day, (Thursday, 7th. May), in the penalty phase of trial in the case of U.S. v. Dzhokhar Tsarnaev.)

Proceedings in the courtroom today were once again subject to a lengthy delay while both the defense and prosecution teams met with Judge O’Toole in his chambers. At the time of writing the matters under discussion during this meeting remain unconfirmed but there has been much speculation that dialogue may have been concerning:

a) The prosecution’s objections to the prospect of Sister Prejean, (a well known and long time opponent of the death penalty), taking the stand as a witness for the defense.

b) The government’s threats to introduce allegedly “defiant” notes which were, (allegedly), written by Dzhokhar Tsarnaev whilst he was hospitalized and recovering from multiple gunshot wounds following his capture in April, 2013. (The government apparently wish to introduce these notes in retaliation for the defense’s introduction of testimony showing Tsarnaev’s now infamous “hand gesture” to be far less meaningful than the government attempted to project.)

Of course, there may also have been other matters for discussion this morning…

When judge, jury, legal teams and the defendant returned to the courtroom testimony picked up where it left off the previous day. On Wednesday the defense called their forty third witness, Mark Bezy, who is now retired after a career exceeding twenty years with the Federal Bureau of Prisons. Bezy was at one time warden at Terre Haute, (death row), in Indiana and also worked at the Supermax at Marrion, Illinois prior to this facility being replaced by ADX in Colorado.

Yesterday afternoon Tsarnaev’s defense extracted testimony from this witness which served to illustrate the very secure but shockingly inhumane conditions encountered by inmates at ADX. It seems obvious that the defense’s objective in obtaining such testimony is to avert the death penalty by convincing the death penalty “qualified” jury, (aka a jury whose members have indicated that they approve state sponsored murder), that LWOP would a harsher penalty than execution. (Or, as David Bruck phrased it in his opening statement, an “appropriate” penalty.)

By contrast, the prosecution, in their desperation to secure Tsaranaev’s execution, have sought, under cross examination, to portray ADX, (once held up to be an example of the ultimate in security), as inadequate and having many failings. The prosecution intimate that a facility such as ADX is in no way up to the job of protecting the American public from the evil of one such as Dzhokhar Tsarnaev. (This, despite the fact that “H” block at ADX houses multiple inmates convicted of crimes which constitute “terrorism.”) (more…)