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.


Why I Am Opposed To The Death Penalty

October 23, 2011

I am opposed to the death penalty in all cases. Period.

I have many reasons. Here are a few of them.

First and foremost, I oppose it because it is immoral. That it is imposed following a jury trial and appellate review, does not wash the defendant’s blood off the jury’s hands and, by extension, our hands because state sanctioned premeditated murder is still premeditated murder. No government ever should be in the business of killing its own people.

Second, death penalty cases typically cost more than three times the cost of incarcerating a defendant to life without possibility of parole.

Third, the death penalty has no deterrent effect. It does not reduce homicide rates. In fact, the opposite is true. Homicide rates are highest in the states that have a death penalty and lowest in the states that do not have a death penalty.

Fourth, our criminal justice system is so infected with racism, corrupt, and broken that it is impossible to know for certain if any given defendant committed the crime charged and, if he did, whether he deserves the death penalty, as opposed to life without parole.

Most people do not know that under our laws there is no murder, however heinous or depraved, that automatically results in a death sentence. When a jury convicts a defendant of a death eligible offense, the case proceeds to a sentencing phase in which the jury ultimately must decide whether the prosecution proved beyond a reasonable doubt that the aggravating evidence (typically the murder and the defendant’s prior record, if any) so outweighs the mitigating evidence (evidence about the defendant and his role in committing the murder) that the defendant should forfeit his life. Assuring consistency that similarly situated defendants convicted of committing similar murders are consistently sentenced to life without possibility of parole instead of death, or vice versa, has proven to be impossible within states, let alone between states.

In Callins v. Collins, 510 U.S. 1141 (1994), Justice Harry Blackmun dissented from the United States Supreme Court’s denial of review in a death penalty case stating,

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

He concluded,

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it—and the death penalty— must be abandoned altogether.” Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (Marshall, J., concurring in judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Justice Blackmun was a conservative Republican who believed strongly in the death penalty when he was appointed to the Supreme Court. As you can see, he finally reached the conclusion that it is impossible to fairly and equitably decide who lives and who dies. I reached the same conclusion, based on my 30 years of experience as a lawyer specializing in death penalty defense and forensics.

Justice Blackmun died in 1999.


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