by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
It must be so hard to defend someone as unpopular as Dzhokhar Tsarnaev and plead for his life, while he does everything to make it harder. How does one lessen his involvement when he carried out so many explicit and intentional acts and has been so consistent: remorseless.
He shed no tears for the 3 civilians and 1 M.I.T. police officer killed, the 264 people injured, or the countless others traumatized. Instead, he went and got a sandwich.
When his brother was killed, did he turn himself in and say, “I didn’t want to do it; I’m so sorry; my brother made me.”? No.
He is now 22, but at the time, Dzhokhar was a 19 year-old American college student at U. Mass, Dartmouth with the right to drive and be judged as an adult. The “My-brother-made-me-do-it” defense went nowhere. His counsel wanted him to be perceived as an impressionable adolescent misled by his older brother, but has he done anything to reinforce anything his defenders tried to assert? No.
The defense conceded his actions, but tried to pass the buck to the alleged influence of the defendant’s deceased older brother. One problem: Dzhokhar never blinked while he was involved or since.
In the sentencing phase, what could possibly matter? It is hard enough to overcome one count that carries the death penalty, let alone 17.
Although the assessment of mitigating factors v. aggravating circumstances is not simply a quantitative matter, but a qualitative one, no doubt the jurors will take an inventory, likely to result in something along these lines:
Is a contemptuous defendant with 5 aggravators per mitigating factor enough to convince even one juror to withhold the death penalty? Is the mother of two – not one – terrorists sympathetic? Unlikely, but time will tell.
The jurors are de facto death-penalty qualified, lest it be discovered later that this was a falsehood. What may save the defendant isn’t the defense, but other factors (e.g., not giving him the satisfaction of becoming a martyr by dying for his so-called cause, latent rejection of the death penalty in the largely Catholic jury pool, or jurors holding themselves above his conduct). If he is spared, it will be because of who the jurors are and what they believe, not because of anything the defense does or fails to do.
He certainly can’t complain about the quality of his public defender, Judy Clare Clarke, who defended other notorious defendants and overcame the death penalty for child-killer, Susan Smith.
His public defender may deserve sympathy. Dzhokhar Tsarnaev?
Other articles related to high-profile defendants, criminal trials and jury consultants from A2L Consulting include:
- Boston, a Bomb of a Trial
- How NOT to Go to Court: Handling High Profile Clients
- Witness Preparation: The Most Important Part
- Knock, Knock. Misuse of Humor in Litigation and the George Zimmerman Trial
- The Jodi Arias Trial, A Case Study in Experts, Witness …or Witless?
- The CEO in Litigation: Problems, Solutions and Witness Preparation
- Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations.
- How PowerPoint Failures in Demonstrative Evidence Can Sink a Case
- Telling a simple story in a white collar criminal case
- Don't get cute with your trial graphics
- Learn how to look your best in a video deposition
- A jury consultant's secrets of witness preparation
- 10 Signs of a Good Jury Questionnaire