Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?
Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.
Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.
There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.
Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.
I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.
I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.
Judy Clarke plans to use the trial to save his life.