Boston Bombing News: Penalty Phase (Day One)

Dzhokhar Tsarnaev

Editor’s Note: The following is an account of the proceedings on Monday, April 27, in the case of the US v. Tsarnaev. The defense began to present its case to avert the death penalty.

As is becoming quite usual, the first hour of proceedings today were taken up by yet another “closed door” meeting in the judge’s chambers attended by both the defense and prosecution. Judge George O’Toole apologized to the jury for this delay which he put down to “organizing work” and informed the jury that they would not be permitted to take notes during the imminent opening statements from the defense in this penalty phase of the trial. (The reason given for this was that such statements are not part of the evidence in this case.)


Opening statements for the defense were presented by David Bruck and mirrored opening statements presented by Judy Clarke in the guilt phase of this trial in that Bruck immediately acknowledged the horror of the bombing of the Boston Marathon, the courage of those victims and survivors of the bombing who had previously testified as witnesses for the government, and the guilt of his client. He then went on to assure the jury that they had done what was required of them in finding Dzhokhar Tsarnaev guilty in all thirty counts in the face of “overwhelming evidence”, but reminded the jury that they were not required to recommend the death penalty.

Bruck then spoke briefly concerning his client’s family. He reminded the jury of the defense’s belief that Dzhokhar’s elder brother, Tamerlan, bore primary responsibility for the bombing, outlined Dzhokhar’s cultural obligation to support and obey his elder brother and asserted that both of the Tsarnaev brother’s parents had been diagnosed with serious mental illness and had therefore been unable to provide their children with a stable family background. The court was assured that we would learn much more of these family dynamics in the coming days. The now notorious “holding cell” video was again mentioned as an example of the necessity of context.

David Bruck concluded opening statements for the defense by assuring the jury that his client should and would be “severely punished.” He suggested to the jury that, should they approve the death penalty, then this punishment would be over relatively quickly, but, should they instead recommend LWOP, that this punishment would have to be endured for decades. Photographs of ADX, the maximum security facility in Florence, Colorado were displayed on screens in the courtroom whilst Bruck described conditions for inmates at this facility. Bruck informed the jury that if they were to recommend LWOP, that Tsarnaev would indeed serve his sentence at ADX and that the USAG, (Lynch), and the USDA, (Ortiz), could, if they thought it advisable, ensure that Tsarnaev was denied all contact with the outside world and that no interviews with the media would ever be permitted. In essence, Dzhokhar Tsarnaev would never be heard from again. (A continuation of the SAMs?) Bruck stated that LWOP in ADX would be “an appropriate punishment” for his client.


The first witness for the defense, who identified himself as Laith Albehacy, took the stand at 10.55 am. Mr. Albehacy, whose home country is Egypt, but who has resided in the US since 2008, is employed as a manager at a halal food store in Cambridge. During his testimony Albehacy described a casual but largely uneventful encounter with Tamerlan Tsarnaev at the store where he worked but also spoke of two outbursts by the elder Tsarnaev, on separate occasions, at the Cambridge mosque where both attended religious services. During cross examination for the prosecution, William Weinreb established that this witness had never met Dzhokhar Tsarnaev, and sought to portray this witness’s testimony as irrelevant.

The second witness for the defense, Loay Assaf, took the stand at 11.40 am, following morning recess. Mr. Assaf gave a brief summary of his background and family life and spoke of his regular sermons at a variety of mosques and Islamic organizations in the Boston area. It was Mr. Assaf whom Tamerlan Tsarnaev interrupted during two sermons at the Cambridge Mosque. The first occasion was during the fall of 2012 when Tamerlan stood up and objected loudly to the idea of Muslims celebrating Thanksgiving and voting in the political process in the US. This interruption was said to last 20 to 30 seconds after which Tamerlan sat back down.

The second occasion took place in January 2013 when Assaf spoke in favor of Martin Luther King Jr. This time Tamerlan left the mosque after his outburst. Assaf said that he attempted dialogue with Tamerlan in order to establish “where he was coming from” but that Tamerlan could offer nothing in this regard. It was acknowledged that interrupting a sermon in a mosque is something which is practically unheard of. Cross was brief and simply portrayed Tamerlan’s outbursts as emotional rather than rational, which seemed to aid the defense rather than the prosecution.

Razak Abderrazack, the third witness of the day, took the stand at 11.52 am. He was assisted by an interpreter. Mr. Abderrazack is employed at the same food store in Cambridge as the first witness for the defense, Laith Albehacy. Abderrazack described an encounter with Tamerlan at his work place when Tamerlan became enraged that turkeys for the American holiday, Thanksgiving, were being sold in a halal food store. During cross examination the prosecution gained Abderrazack’s admission that he actually knew very little of Tamerlan.

A former acquaintance of Dzhokhar Tsarnaev, from his school days, was the day’s fourth witness. When Robert Barnes made his way through the courtroom to the witness stand Dzhokhar turned to observe. (This is the first time I have seen Dzhokhar turn to face those assembled in the courtroom.) Mr. Barnes admitted, as the first witness, Albehacy, that he had been subpoenaed by the defense but stated that he was now fully prepared to testify.

This witness, a year older than Dzhokhar, attended the same grade school and high school and knew both of the Tsarnaev brothers in addition to mutual friends. Barnes spoke of Dzhokhar as a “good kid” and of his being physically smaller than, and submissive to his elder brother, and outlined his sporting activities in high school. He then went on to describe Tamerlan as he first knew him and mentioned drinking, smoking weed and attending parties. This, he said, was in sharp contrast to the Tamerlan he encountered later, when he was attending Boston College and visited old haunts in Cambridge.

On one occasion he met, (unintentionally), Tamerlan at a pizza parlor across the road from their old high school, Ringe and Latin. Tamerlan’s conversation, according to Barnes, seemed limited to religion and the evils of US foreign policy, (Barnes slipped in here that he had his own issues with US foreign policy), and an altercation with a mutual friend was described during which Tamerlan was said to have become physically abusive to that mutual friend. Under cross, Weinreb remarked to Barnes, “You can’t tell us a whole lot”? Barnes promptly retorted “I can tell you what I just told you.” Weinreb then asked Barnes to confirm that Dzhokhar “was a good wrestler”, in an effort, I believe, to negate the defense’s suggestion of physical intimidation.

The fifth witness to appear was Gerald R. Grant Jr., who had appeared previously. Mr. Grant is an expert in digital analysis. Numerous exhibits were displayed during Grant’s testimony and most were admitted to evidence. The defense made more of what Grant had failed to analyze than of what he had. It was pointed out that out of around eight hundred communications made by Tamerlan, only a little over twenty which had been studied were addressed to his younger brother. (Tamerlan’s wife, Katherine, had been copied on many of these communications.)  When William Fick, for the defense, began to question Grant on his findings related to Dzhokhar’s cell phone the prosecution raised an objection. Judge O’Toole then called for a lunch break and said that the prosecution’s objection would be resolved before testimony resumed.

A brief sidebar followed the lunch break prior to Grant continuing his testimony. It had been decided over lunch that information obtained from Dzhokhar’s cell phone and related to internet searches on the bombing of the Boston Marathon would be admitted to evidence. We were then shown a video obtained from Tamerlan Tsarnaev’s phone of his daughter playing on a climbing frame at the park. Grant was then questioned as to what he didn’t know of the Tsarnaev brothers’ communications and why but he refused to acknowledge anything he was not familiar with based on his own work and analysis.

Gasps were audible in the courtroom when the sixth witness identified herself as Judith Russell, the mother of Tamerlan’s wife, Katherine. Mrs. Russell spoke of her work as a registered nurse and of her husband, from whom she is now separated, who is an ER physician. The Russells have three daughters, two of whom are now students in college. Katherine is the elder of the three sisters. Mrs. Russell spoke at length about her daughter’s and her own relationship with Tamerlan and how her daughter had met Tamerlan through a roommate while a student at a Boston college. She described Katherine as having been devoted to her husband but said that Tamerlan had shown no interest in getting to know his wife’s family. It was mentioned that the first time Tamerlan had been invited to the Russell family home he had arrived one and a half hours late. Mrs. Russell said that she had no problem with Tamerlan having been of the Muslim religion and that there was “nothing wrong with Islam”, but attributed her uneasiness with her daughter’s choice of partner to that relationship’s propensity to isolate her daughter from her previous friends and interests.

A brief sidebar took place at 2.40 pm, after which Mrs. Russell continued her testimony in regard to the relationship between Katherine and Tamerlan and the increasing fervor for religion exhibited by both. She acknowledged that she had been aware of her former son-in-law’s trip to Russia but was unaware of the real reason for this trip and had considered this trip to be ill-advised.

Cross-examination of this witness was brief. Mrs. Russell was, by this time, obviously close to tears. She made the point that her daughter was a “good mother” and had kept a clean and pleasant home. She said that the apartment her daughter had shared with Tamerlan in Cambridge was nothing like what had been portrayed in the media. Mrs. Russell had met her son-in-law’s mother once, at a baby shower for Katherine. She acknowledged that this meeting did not go well and that she had not taken to this woman. Russell said that Tamerlan’s mother sat at the baby shower “like a queen.”

The seventh witness, Gina Crawford, claimed to be Katherine’s best friend since childhood. She described Katherine as a teenager and the changes in her friend as that friend’s relationship with Tamerlan Tsarnaev developed. Ms. Crawford did acknowledge that Katherine had always held an interest in politics but stated that Tamerlan’s influence seemed to have intensified that interest. Crawford’s testimony was in many ways similar to Judith Russell’s and most particularly in regard to their respective opinions on Tamerlan and his mother, Zubeidat. Neither Judith Russel or Gina Crawford had ever met Dzhokhar. The prosecution declined to cross examine  Crawford.

A brief “snafu” occurred prior to the final witness of the day taking the stand when the “wrong” witness was escorted into the courtroom. Judge O’Toole remarked that “It’s been a long day.”

The eighth and final witness to be called was Robert Ponte, a music teacher at Cambridge Ringe and Latin. He spoke of Tamerlan’s request to join the Jazz Ensemble when he attended this school in 2008. This request was initially granted. Mr. Ponte described Tamerlan as “respectful” but “unsocial.” The point of his testimony seemed to be to portray Tamerlan’s facial expression, when told that he would be dropped from the ensemble due to a lack of skill, as somewhat intimidating according to Ponte’s recollection.  Ponte’s testimony seemed to have little point and told us very little. (Nadine Pellegrini, for the prosecution, remarked somewhat dryly on this.)

The day ended a little after 4.00pm and testimony is expected to continue throughout the week.

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