Bill Richard’s unimaginable horror and a jury’s choice

March 6, 2015

We do not expect our children to die before we do.

Yesterday afternoon, Bill Richard took the stand in the Boston Marathon bombing trial. He told the members of the jury what happened to him, his wife and their two children, Martin and Jane. “We were running late,” he said. The winners had already finished and they had to walk back along the race course to find a place where they could see the runners pass on their way to the finish line. After watching for awhile, the kids got bored so the family took a break and got some ice cream at a nearby Baskin & Robbins. Then they tried to find a spot closer to the finish line. They found an opening in the crowd in front of the Forum Restaurant where the kids could stand behind the metal rail barricade next to the street and see the runners.

When he heard the first “thunderous explosion” near the finish line about a block away, he thought it was a sewer explosion. Concerned, he decided that they should leave the area. He hopped over the fence and turned to help his family into the street. A few seconds later, the second bomb exploded tearing his pants apart and knocking him to the ground. He gathered up his son and carried him across the street and gently placed him on the ground.

Chris Caesar and Hilary Sargent of Boston.com pick up the story,

“When I saw Martin’s condition, I knew that he wasn’t gonna make it,” he said. “I told [Denise, his wife who lost an eye] I was gonna go be with Jane [his daughter whose leg was blown off]…she agreed.”

“It was at that time I saw my son alive, basically for the last time,” he added. “I knew we needed to move quickly, or we’d lose Jane, too.”

Richard accompanied both Henry [Martin] and Jane to Boston Children’s Hospital, describing the environment “like a scene from the movies.” There, Denise called Richard to tell him Martin had died.

“I said, ‘I know,’” he told the jury.

Jane later had 20 pieces of shrapnel removed from her body. Richard—unwilling to abandon his injured daughter—was also treated at Children’s Hospital for hearing loss, burns, and shrapnel wounds.

“But I can still hear the beautiful voices of my family,” he said.

No one ever expects to be in a situation like this. Unimaginable physical pain and unimaginable never ending emotional pain.

Incomprehensible.

What should we do with the man who visited this horror on this innocent family and more than 260 other innocent people, including two other people who died?

What should we do?

Should we kill him?

What good would that do?

Does he even understand what he did?

I have been here before. I was a death penalty lawyer and I have witnessed awful things.

I have learned that even the worst of the worst have that spark of light that binds us all to each other and can be nurtured into a mighty flame.

That is my cause, my purpose, my life’s work.

I believe in forgiveness, mercy, redemption and resurrection, no matter what a person may have done.

I would never deny that to anyone.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

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.


Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.


Ibragim Todashev may have been unarmed when killed by FBI agent

May 30, 2013

USA Today is reporting that 27-year-old Ibragim Todashev may have been unarmed when he was shot and killed by an FBI agent in Orlando on May 22nd.

Todashev’s father Abdul-Baki Todashev told the the Moscow media that his son had multiple gunshot wounds to his torso and one to the back of his head. The elder Todashev also displayed photos he claimed were of his son’s body in a Florida morgue, according to AP.

Ibragim Todashev was the ethnic Chechen whom the FBI were interrogating regarding his association with Tamerlan Tsarnaev, the late Boston Marathon bombing suspect. Todashev was also a suspect in a triple homicide in Massachusetts two years ago.

The early reports that I read said Todashev was shot because he pulled a knife on an FBI agent.

The USA Today story quotes unnamed sources that Todashev had overturned a table but was unarmed when shot.

The Florida branch of the Council on American-Islamic Relations has called for a federal civil rights investigation into Todashev’s death.

“We have confirmed through senior sources within the FBI that Ibragim was indeed unarmed when he was shot seven times in the head, what appear to be even in the back of the head,” said Hassan Shibly, executive director of the CAIR Florida. “That’s very disturbing.”


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