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Dzhokhar Tsarnaev has a right to allocution

Dzhokhar Tsarnaev-VOA

Dzhokhar Tsarnaev

Various articles in the Huffington Post, the National Monitor, and the International Business Times have discussed whether Dzhokhar Tsarnaev will testify during his trial.

I do not believe he will testify in the guilt/innocence phase or the penalty phase of his trial because that would open him up to cross examination, which he dares not risk. This does not mean, however, that he cannot speak to the jury. He has the right to allocution, which means he has the right to speak before sentence is pronounced. All defendants have this right.

In the first death penalty case that I tried, I had my client read a letter that he wrote to his daughter expressing regret for what he had done and for how that had affected their relationship. He broke down several times but eventually managed to get through it. The jury spared his life and several jurors told me afterward that they voted to spare his life because of his genuine tearful regret.

I am certain Judy Clarke and David Bruck have considered using allocution as a means for Dzhokhar Tsarnaev to speak to the jury about sentencing without being cross examined. Whether the tactic will succeed depends on whether he genuinely expresses remorse and regret.

The keyword is ‘genuine.’ Anything less and he will almost certainly be sentenced to death.

Dzhokhar’s chances to beat the death penalty today took a torpedo amidships from Andrew Kitzenberg, who witnessed the shootout in Watertown. He said after Tamerlan rushed the cops and was tackled in the street, Dzhokhar got in the Mercedes and, instead of driving off down the street away from the cops, he did a U-turn and accelerated toward them. They scattered and barely missed being run over. Tamerlan got caught under the car and was dragged 30-50 feet down the street.

He also participated in lobbing three pressure cooker bombs at the cops.

As I have mentioned before, the evidence appears to show him voluntarily participating in the mayhem. It would be close to impossible for him to satisfactorily answer questions such as, “Why did you pull a U-turn, and accelerate toward the cops instead of driving away?” There is no good answer to that question. He could not save Tamerlan, who had embraced death by running into a hail of bullets (he was shot 7 times).

Testifying is a really bad idea, allocution is the only way to go.

[NOTE: Masoninblue currently is unable to connect to FDL, so may not be able to engage in comments on this post.]

Photo By VOA [Public domain], via Wikimedia Commons

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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