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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?”

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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.

  • sandero

    testing… new FDL…

  • knowlyn

    Thanks for posting, MIB. I don’t even know what to say about the middle finger thing anymore. It’s all so empty. Weinreb also stooped pretty low, I thought, when he dismissed DT’s female friends as “sweet on him.” What did you make of all the defense objections during the rebuttal? Did you hear anything that sounded legitimately legally problematic in the prosecutor’s content?

    I liked how Clarke finished her closings, although it’s calling on the jurors to take an anti-death and pro-mercy stance that just may not work. But maybe that’s their best shot? I’m not really sure how to feel about the rest of it. What was your opinion of her closing?

  • Mark

    All legal performance aside as I am not qualified to critique on that level, I thought the prosecution came across as vengeful and hateful and hell bent on killing someone, while the defense came across honest and remorseful and coming from a position of mercy. To be honest, I am less inclined to believe the prosecution’s reasons for killing Jahar are truthful and genuine on their part than I am the defense’s reasons for not killing him. But, I am not on the jury.

  • OldGold

    Despite what popular culture portrays, the closing argument is the least important phase in a trial. Seldom are jurors swayed this late in the proceeding. Today’s arguments certainly would seem to follow this established pattern

    Yet, I had hoped that Judy Clarke might do the unusual and give a closing that would make a
    meaningful difference by connecting the dots in the defense’s unfocused mitigation defense by answering the “why” question. Unfortunately, she was unable to do so. She conceded this by saying, “If you are looking to me for a simple and clean answer as to how this happened, I don’t have it.”

    Still, there may well be a juror or two that firmly believes that LWOP is the proper sentence.

  • Patriarch

    Objectively, Weinreb & Mellin were far more seasoned in their conclusions. It was a summary, &

    regardless of the “evidence” (name- dropped convenienly) of notes from the Chechen expert, Tool

    overruled the objection, because the jury could hear a summary.

    However, he did not admonish the jurors not to consider anything in the closings as evidence to weigh.

    That is judicial error & an appealable issue, the most recent of a voluminous binder.

    Not withstanding, Mellin IS a BRADY VIOLATOR, & has been accused of such BY PREVIOUS

    APPELLATE JUDGES.

    http://thebostonmarathonbombings.weebly.com/government-lawyer-appointed-for-boston-marathon-bombing-trial-faced-allegations-of-professional-misconduct.html

    ftp://law.resource.org/pub/us/case/reporter/F3/383/383.F3d.191.03-15.04-8.04-7.html

    HE IS A SORRY EMBARRASSMENT TO THE LEGAL PROFESSION – proving that Holder had to
    beckon him from his Connecticut offices long after pre-trial proceedings commenced.

    Did he file a pro hac Vicie motion?

    After reading the Feds final arguments, I can only conclude, this case was a FRAUD UPON THE
    PEOPLE OF THE USA – LIES BY OMISSION.

    TO WIT:
    Sample: Substitute “Tsarnaev” & “defendant” for “FBI DHS JTTF & FEMA” & it paints a picture of REALITY:
    “Who remains so stress-free after such crimes? Only a terrorist who believes in what he did?
    “He returned to UMass Dartmouth in secret triumph,” Mellin says. And not once does he tweet
    “Tamerlan made me do it.”
    Mellin quotes the boat note #Tsarnaev’s writing that he and he alone can’t stand to see evil go
    unpunished; no blame to Tamerlan.
    “This defendant did not want to die…unlike his brother he made a different choice.” He praised
    his brother as martyr.
    (Mellin doesn’t mention that the note refers to a dead Tamerlan; yet in the hospital, Jahar
    continuously asks where is his brother Tamerlan.)
    “The defendant engaged in substantial planning and premeditation. The law punishes those more
    harshly like the defendant..”

    Holder is not interested in THE BRADY RULE (withholding of evidence) as in the ENRON CASE.

    THE ENDS JUSTIFY THE MEANS in the DISTRICT OF CORRUPTION.

    THE SALEM WITCH TRIALS LIVE ON.

  • Patriarch

    Very difficult to edit typos. Lines do not scroll to lower line without using “return” on iPad.. Please advise disqus.

  • Frederick Leatherman

    I do not believe lawyers should be devoting their energy and professional skills to killing people. The process is infinitely corrupting no matter how determined they are to believe they are doing the right thing. They transform and become what they hate.

    It’s really very simple. They shouldn’t be attempting to kill people to show that killing people is wrong.

  • Frederick Leatherman

    I agree that closing arguments generally do not matter. I also was hoping for an explanation and disappointed by its absence.

    For whatever reason, I believe Jahar was insufficiently well formed or integrated. Too desperate to please. Too susceptible to being misled.

    He is not alone.

  • Frederick Leatherman

    I don’t feel comfortable rating the closing arguments because I wasn’t there. I appreciate the efforts of the reporters tweeting from the courtroom, but they are not trial lawyers. For example, I do not have a basis to evaluate the emotional impact of Judy Clarke’s closing on the jury. Without that, her closing is just words. She probably did great, but I don’t know that.

    As for the objections to Weinreb’s rebuttal, I’m not sure what was going on. I couldn’t tell from the twitter feed.

    The most common objection during a rebuttal argument is that the lawyer misstated the evidence. The objection is made to let the jury know that the defense disagrees with the statement. Judges almost never sustain those objections because they do not want to be perceived as commenting on the evidence. Instead, they will overrule the objection(s) and remind the jurors what the lawyers say is not evidence and it’s the juror’s responsibility to recall and decide what the evidence was.

    Conrad appeared to be very angry and her reaction suggests to me that Weinreb crossed a line in his eagerness to get a death sentence. Assuming I’m right, his misstatements may be an indicator that he feared Judy Clarke might have convinced some jurors to vote LWOP.

    For example, at one point he said, the defendant has not provided an explanation for something or other. That comment was improper because it was a comment on the defendant’s constitutionally protected right to remain silent and it switched the burden of proof from the government to the defendant. That’s two constitutional violations in one sentence. If the jury returns a death verdict, that single sentence might result in a retrial of the penalty phase.

    A lawyer of his caliber should never have made that mistake. It shows how desperate he was.

  • Frederick Leatherman

    “However, he did not admonish the jurors not to consider anything in the closings as evidence to
    weigh.”

    You’re wrong. He advised the jurors many times orally and in writing with the jury instructions that what the lawyers say is not evidence.

    Please do not use all caps to get your point across.. It’s irritating. We all know how to read.

  • knowlyn

    I don’t know if we are thinking of the same thing, but my impression was that he was saying that the defense hadn’t provided evidence for the mitigating factor relating to Tamerlan’s influence. That would be the defense’s burden. He was questioning why they hadn’t put on witnesses such as his parents, sisters, that could comment directly on the brothers’ relationship. (Of course, he knows darn well why they wouldn’t put the parents on the stand.)

    Below is a link to a sidebar transcript that happened after the closings regarding the rejected defense request that the jurors be instructed that a lack of a unanimous verdict results in life w/o parole rather than a mistrial. I don’t have any opinions about this legally, but a reporter at WBUR was saying that both of the last two death penalty trials in Massachusetts did include such an instruction. In the sidebar, the judge contends not giving that instruction is consistent with some circuit court ruling. From a purely lay perspective, I don’t get the problem in allowing a jury to know that fact.

    http://cooljustice.blogspot.com/2015/05/death-by-long-form-tsarnaev-with.html

    I hope the closings transcripts become available online, like the openings did.

  • Frederick Leatherman

    I don’t understand it either. In the pursuit of justice, it’s always better to err on the side of clarity in the form of too much explanation than ambiguity in the form of too little. Having said that, I think Clarke clarified the point and I think it’s implicit in the instructions that were given.

    Regarding my point about commenting on silence and shifting the burden of proof, I agree that you’re right about the defense having the burden of proving the existence of any mitigating factors and it would be fair to comment that they had failed to meet that burden. In other words, you’re right and I was wrong.

    I agree with you that Weinreb was extremely disingenuous and I think Judge O’Toole should have sustained the defense objection.

  • Frederick Leatherman

    I don’t advise Disqus about anything and I’m not your messenger.

  • Carolyn D

    I wonder if it fully connected with Jahar how the bombs would destroy people like that. And, yes, I see him as a major people-pleaser. I don’t know how he’s going to survive in Supermax.

  • Frederick Leatherman

    Since we’re on verdict watch, I think a little music is in order. Here’s Jackie Greene’s new soulful song, Trust Somebody from his upcoming seventh studio album titled Back to Birth that is scheduled for release on August 21st.

    http://zumic.com/music-videos/176405/trust-somebody-jackie-greene-youtube-official-audio-stream/

  • OldGold

    The defense’s best shot would have been getting a more overt and global statement of contrition out of Dzhokhar Tsarnaev through his conversations with Sister Helen Prejean. The word “sorry” was sorely missing.

  • Mark

    Very nice!!!!! Thanks for sharing.

  • Patriarch

    I wasn’t referring to you. You are not the moderator of this platform…are you?
    You have an omniscient complex.
    Lighten up, sir.

  • Patriarch

    He did NOT REMIND THEM AFTER THE REBUTTAL & AFTER THE OVERRULED OBJECTIONS.

    A jury does not think as you do…Counselor.

  • Frederick Leatherman

    Glad you liked it.

  • Frederick Leatherman

    I agree. That’s the gaping hole in the defense case for LWOP. They tried to paper over it with Sister Helen Prejean, but . . .

  • Frederick Leatherman

    After 30 years of jury trials, I think I know more than a little bit about juries.

    Stop with the all caps. It’s a form of shouting and it’s offensive. If you can’t make your point without shouting, you need to go somewhere else.

  • Patriarch

    unbelievable..
    “how to win a criminal jury trial with diplomacy, finesse, & threats” by mason in blue
    (every publisher rejected it …guess why?)