Jahar Tsarnaev finally cries in court today

Jahar Tsarnaev finally displayed emotion in court today when his Aunt Patimat Suleimanova took the stand to testify on his behalf in the penalty phase. She is his mother’s older sister. As soon as she took the stand, she began hyperventilating and sobbing hysterically. She was unable to speak and had to be excused. As she left the witness stand, Jahar began to cry. That is the first time during the trial that he has displayed any emotion.

Today was devoted to family witnesses who traveled from Russia to testify on his behalf. We learned a lot about his parents, particularly the change his mother, Zubeidat, went through after she transformed into a Muslim fundamentalist who cast aside her jewelry and wardrobe of colorful clothes and started wearing the hijab. Unfortunately, none of the witnesses have had any contact with Jahar since he was 8-years-old. They described a happy and beautiful boy whom everyone loved.

The defense also elicited evidence that the eldest brother in Chechnya culture occupies a position of authority in family life relative to the siblings and this would have been true in the Tsarnaev family. Jahar has been described by a female college friend as a follower and not a group decision maker.

Difficult to tell how this testimony affected the jury.

I was touched today by this statement from Becki Norris, one of Jahar’s teachers.

“I have discovered the painful truth that when you care deeply for someone, that does not stop even when he does unfathomably horrible things.”

Her statement perfectly captures today’s testimony.

Tsarnaev: To testify or not to testify, that is the question

Tuesday, January 13, 2015

Good morning:

The Fifth Amendment provides in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

Dzhokhar Tsarnaev Death Penalty Trial Started Today

Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial
Plea Bargaining in Capital Cases
Tsarnaev: Death penalty cases are won or lost during jury selection

Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.

Judge denies motion for mistrial in Arias penalty phase

Monday, May 20, 2013

The Chicago Tribune is reporting that Maricopa County Judge Sherry Alexander denied a defense motion for a mistrial today during the penalty phase in the Jodi Arias case. Court recessed for the day and will resume tomorrow with Ms. Arias presenting her plea to the jury.

The defense moved for a mistrial when its only mitigation witness, Patricia Womack, refused to testify claiming that she had received death threats and was conflicted about the case.

I couldn’t do it,” she told NBC News in an email. “I feel there is so much good in Jodi to be saved but then also someone’s dear life was taken.

Defense attorney, Kirk Nurmi also alleged a separate ground. He accused the prosecutor of intimidating Ms. Womack by threatening to charge her with a crime. However, the Tribune reports that

Prosecutor Juan Martinez told the court on Monday that, in a prior interview with Womack, she had refused to answer questions about her drug use. He said that her refusal to incriminate herself would have precluded her from testifying.

Defense attorney Kirk Nurmi claimed that Womack’s absence would deny the jury a full picture of Arias’ life prior to meeting Alexander in 2006.

Maricopa County Judge Sherry Stephens ruled there was no basis for a mistrial. She also denied a subsequent request by Nurmi to withdraw from the case, and adjourned the court for the day.

This is an interesting issue because prosecutors are not permitted to intimidate defense witnesses into not testifying for a defendant. Unfortunately for the defense, Ms. Womack appears to have been more concerned about her conflicted feelings and if that is the case, I believe this issue will not get Ms Arias a new penalty phase, assuming the jury sentences her to death.

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Questions for readers about Jodi Arias penalty phase

Thursday, May 16, 2013

Good afternoon:

The jury in the Jodi Arias case unanimously agreed yesterday that the prosecution proved the aggravating circumstance beyond a reasonable doubt (i.e., excessive cruelty).

Meanwhile, defense counsel apparently moved to withdraw from the case after they found out that their client had decided to volunteer for the death penalty.

The judge denied their motion.

The case resumed today with the penalty phase.

Defense counsel are in a difficult situation.

Do they ask the jury to grant her request and sentence her to death, or do they ask the jury to disregard her request and sentence her to life without parole?

What would you do, if you were in their situation?

Now, I will up the ante and ask a tougher question. Let us suppose that they have powerful mitigation evidence to present that would likely persuade jurors to reject the death penalty and sentence her to life without parole. If you were representing her, would you present that evidence despite her objections?

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred