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Defense Opening Statement for Tsarnaev in Penalty Phase as support for the death penalty drops to 15%

David Bruck gave the Opening Statement this morning for the defense in the penalty phase of the Tsarnaev trial.*

He began by emphasizing that each juror must decide for himself or herself what the punishment should be. This is an “individual choice,” he said, not a group effort to arrive at consensus. As I’ve said before, this is a major difference from the way deliberations are conducted in the guilt phase. Anything short of unanimity is a verdict for life without possibility of parole; whereas, anything short of unanimity in the guilt phase would be a hung jury. The emphasis on each individual’s decision changes the whole dynamic.

“This hearing is not about whether to punish Dzhokhar Tsarnaev, it’s only about how.”

“We are asking you to punish Dzhokhar by imprisoning him for the rest of his life.”

“There is no evening the scales. There’s no point in trying to hurt him as he hurt, because it can’t be done.”

“One punishment is over quickly, the other will last years & decades.”

“No matter the punishment, his last chance came when he was 19 and he will never be given another”

“Death is quick, but it means more media attention & notoriety.”

“Dzhokhar Tsarnaev will not be a martyr if he is sentenced to life.”

“If given life, he will be safely and securely locked away where he will never be heard from ever again.”

Bruck showed a slide of ADX, the federal supermax prison in Florence, CO where inmates are housed in solitary confinement, a place that has been described as a “high tech version of hell.”

“Nothing you will hear from the defense will say that he could not control himself or that his brother forced him to commit crimes.

“No one is going to tell you to feel sorry for him.”

“No one will say Tamerlan forced him to do it…Tamerlan’s motivation was so much stronger & existed much longer.”

With that segue, Bruck began describing Tamerlan and his complicated relationship with his mother who radicalized him after the family moved to the U.S.

After the marriage, the Tsarnaev family rejected her. The family were nomads for 15 years after rejection from their mother’s father. They spent time all over Central Asia.

Both parents were diagnosed as mentally ill after they immigrated to the U.S..

Tamerlan was idolized by his mother, by the entire family, furthering his influence over Dzhokhar.

When Dzhokhar went to college, both his parents returned to Russia under duress and he was left with Tamerlan as his only guide.

Meanwhile, Tamerlan had suffered brain damage in a fight in 2009. He was failing at everything and his life was falling apart.

As his mother’s dreams in America began to crumble, she turned to radical Islam, and took Tamerlan with her.

His father, Anzor was too struck by mental, physical illness to lay down law for kids, so  Tamerlan took over his role as father to Dzhokhar.

Bruck told the jury that they will hear from a psychologist who will tell them that Dzhokhar was not fully mature when he got involved in the bombing. His brain was like “a powerful engine with no brakes.”

He dismissed the flipping-the-bird-at-the video-camera incident in the jail holding cell that created such a firestorm last week as an “immature act” with no special significance. He also said Dzhokhar has no sneer; “you’ll hear how he was shot and wounded and that’s why he made that face.”

He ended with, “Life in prison is much better for everyone.”

Finally, as the defense case begins, the latest Boston Globe poll shows only 15% of Massachusetts residents support the death penalty for Tsarnaev.

*Since I was not present in the courtroom and proceedings in federal court are never televised or livestreamed, material in quotes was tweeted by multiple reporters in the courtroom.

Note: David Bruck followed the strategic format taught to newbie death penalty lawyers for an opening statement in a penalty phase. He knows it well. He’s one of the teachers.

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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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