I like when stories have two sides, when I’m challenged to view events through different people’s eyes. But as the defense rested in the trial of Dzhokhar Tsarnaev, I felt deflated and so did others who’ve been watching.
Those were the words I heard afterward in the hallway outside the courtroom.
The 13th Juror
Prosecutors spent 15 days unspooling the vivid accounts of people who were broken in body by the bombs, but not in spirit. They showed videos of the defendant lurking in the crowd like a shark. One minute he is carrying a backpack over his shoulder; the next he is running away without it.
They offered up heart-stopping details of a cop-killing, a carjacking and a shootout with police. They even took the jury on a field trip to view a scrawled manifesto in a boat pocked by bullets and streaked with blood.
Then prosecutors closed out their case with gruesome photos of three spectators blown apart near the finish line of the 2013 Boston Marathon.
The defense presented just four witnesses who talked about the science of Internet searches and fingerprints. The sidebar conferences with the judge seemed to take almost as long as the testimony – all of six hours. After the drama of the prosecution’s case, the defense seemed dry and hard to follow.
But make no mistake: This trial has never been about whether Tsarnaev did it. The defense concedes his involvement. This is a death penalty case. Seventeen of the 30 counts against Tsarnaev, known to friends as Jahar, carry a possible death sentence. They allege he set off weapons of mass destruction at a public event as an act of terrorism. The only question is whether he should pay with his life.
The defense case, whatever it is, is yet to come.
At this stage, the so-called “guilt phase” of a capital trial, there wasn’t much else the defense could do. Their hands were tied: The prosecution got to tell a story, and all the defense could do was try to poke holes in the narrative.
The defense case – presented by Judy Clarke, David Bruck, Miriam Conrad and William Fick – might have seemed scattershot so far, but there was a point: to pin the blame on the dead guy, the defendant’s older brother.
Tamerlan Tsarnaev, a 26-year-old Golden Gloves boxer, was the more radicalized of the two brothers, according to the defense. He’s the one who wanted to wage jihad. He’s the one who died as a martyr.
His little brother, the follower, was left holding the bag.
Three Boston Marathon spectators, including an 8-year-old boy, were killed in the blasts. Tamerlan died in a shootout with police in Watertown a few days after the bombings. A campus cop at the Massachusetts Institute of Technology also was shot and killed by the brothers, allegedly for his gun.
Defense witnesses testified about the bomb-making materials and the jihadist literature. They put all of them in Tamerlan’s hands. The militant material was traced to Tamerlan’s laptop hard drive – although it also was on Jahar’s laptop – and to a mystery thumb drive. The dates of the computer file transfers roughly coincide with Tamerlan’s visit to Russia.
Tamerlan’s laptop was used in the weeks before the bombings to search for information on the type of gun used to kill MIT police officer Sean Collier, as well as terms such as “detonators,” “transmitters and receivers” and “fireworks firing systems.”
Jahar, the defense argued, spent most of his computer time on Facebook and the Russian version of Facebook. A defense expert contradicted the prosecution’s assertion that Jahar began to consider bombing the marathon a year earlier.
His Twitter posts from the day of the 2012 Boston Marathon included mundane musings on whether he should sleep in or get breakfast.
“Sleep after breakfast is always sweeter,” he tweeted.
The bombs were likely built in the Tsarnaev family’s Cambridge apartment from pressure cookers bought at Macy’s, BBs purchased at Wal-Mart, gunpowder from fireworks, duct tape, Christmas lights and nails. Tamerlan purchased a toy car radio transmitter on Amazon.
One witness said a room off the apartment’s kitchen looked like a “construction site.” There, investigators found Tamerlan’s fingerprints all over the place, but not Jahar’s.
Tamerlan’s prints were found on the duct tape, a soldering gun, a glass jar containing nails, and a how-to book on wiring. They were found on cardboard and a scrap of paper inside the backpack carrying the first bomb that went off, outside Marathon Sports on Boylston Street.
The defense is looking ahead. Once the question of Tsarnaev’s guilt is settled by the jury, the case will move into its next chapter, the penalty phase. For the defense, saving Jahar Tsarnaev from the death penalty depends on building a case that shows he wasn’t the mastermind, but rather a troubled pawn of his brother’s.
Lead defense attorney Clarke has successfully fought for the lives of some of the most notorious killers of our times – Unabomber Ted Kaczynski; 1996 Olympics bomber Eric Rudolph; Zacarias Moussaoui, the so-called 20th hijacker on 9/11; Buford Furrow, a member of Aryan Nation who killed a postal worker and shot at kids in a Jewish day care center; and Jared Lee Loughner, the Arizona man who shot U.S. Rep. Gabrielle Giffords and killed six others.
Both sides have rested in United States vs. Dzhokhar Tsarnaev, and the attorneys will make their final arguments to the jury on Monday. We’ve nearly reached the end of the first stretch of the journey, and it was all but a foregone conclusion.
We knew it was going to be a mismatch the moment Clarke conceded in her opening statement: “He was there.” She urged jurors to keep their “hearts and minds open” to consider questions that the defense couldn’t answer during this first phase of the trial.
In the penalty phase, prosecutors will present evidence of aggravating factors that make this crime especially heinous, and they are likely to call bombing victims to give emotionally compelling victim impact testimony.
The defense will finally get to tell its story. There are few clues in the court file as to what that might be, but Tsarnaev’s lawyers are almost certain to delve into his family history.
Tsarnaev was 8 when his mother and father brought him to the United States from Russia during a vacation. The family is Muslim – his father is Chechen – and his parents received asylum; they sent later for Tsarnaev’s older brother and two sisters.
His parents divorced and returned to Dagestan as he entered college. They have not been in the courtroom for the trial. In fact, nobody but his lawyers seems to be present in court for Tsarnaev.
The defense will likely probe more deeply into Tsarnaev’s relationship with his older brother. Clarke has told jurors that he revered – and feared – Tamerlan. And, they could present evidence of mental illness in the family.
One fact that has haunted this trial – and will be an aggravating factor for the prosecution – is the age of the youngest bombing victim, Martin Richard. Tsarnaev’s relative youth, on the other hand, lines up in the column of mitigating factors.
He was 19 when he dropped his backpack containing a homemade pressure cooker bomb directly behind Martin Richard. The boy’s 69-pound body took the brunt of the explosion.
“He was 8 years old,” the medical examiner testified.
Those were the final words spoken from the witness stand in the government’s case.
If Tsarnaev is convicted, which is very likely to happen in the coming week, the defense will have an opportunity to get in its last word.