A Perfect Storm of Bad Things in a Major Criminal Case: Tales from the Boston Bomber Trial

Well, I have resisted getting into the Tsarnaev case. However, it represents the perfect storm of many of the themes we’ve been exploring in recent posts: an impossible fact pattern, a Defendant who is universally reviled after killing or maiming a bunch of innocent bystanders (including a small child), pundits falling all over themselves to see who can say the stupidest thing… and now my favorite, a small snippet of evidence demonstrating my entire point about how this type of evidence can be misleading and must be considered in context. Perfect.

Last point first: we are now in the “Penalty Phase” of the trial. At least as I type this we are — by the time this is posted it will probably be over. I predict, contrary to just about everyone I know, that the jury won’t vote for Death. We shall see. The misleading snippet of “evidence”, to use the term loosely, was presented, of course, by the U.S. Government Prosecution. By doing this they are demonstrating yet another fundamental principal of criminal defense work that I have not discussed here: overplaying your hand and willfully attempting to mislead the jury.

Actually, I sort of have discussed it in terms of “framing a guilty man.” For this is what they are doing.

Tsarnaev is guilty. Make no mistake. His own lawyer, Judy Clarke (whom I have known for years) said as much during her opening statement during the “Guilt Phase” of the trial. (Of course that should be called the “Innocence Phase” but never mind. I never said our system is actually fair, just that it is supposed to be.)

You see, in most jurisdictions including Washington, a capital case is divided into two halves. The first half is the Guilt (or Innocence) Phase, where the jury decides whether or not the Defendant committed the crime or crimes that could justify putting him or her to death (almost always him). The second phase, the “Penalty Phase,” is where that same jury decides whether to actually put him to death, having found him guilty during the Guilt Phase. A HUGE problem with this approach of course is that the jury must be “death qualified”, which means they have to agree that the death penalty is something they would be able to vote for. Any bleeding heart liberals, like me, would be excused at the very beginning of the trial and not allowed to serve on the jury during either phase. It does not take a brain surgeon to see how jurors like this might be less likely to listen critically to evidence during the guilt phase.

This, combined with the fact that most capital cases have horrible fact patterns, leads many defense attorneys, like Judy Clarke, to basically waive the arguments they may have during the first half of the trial in order to save their ammo for the inevitable guilt phase.

It allows the lawyer to maintain credibility with the jury because it is hard to get them to listen to you during the penalty phase if you are making weak arguments during the guilt phase which the jury then summarily dismisses before convicting. For this reason most capital cases require two different attorneys: one to handle each half. This gives the jury a fresh lawyer to resent during the second half. It also allows the defense attorney to focus on facts during the first half in a way that will (hopefully) help them later lead the jury to the conclusion that putting the Defendant to death is not a good choice.

Judy Clarke, a master at these types of cases, has done a textbook job of taking this approach with great skill during this trial. This brings me to the point about the pundits. I found myself talking back to the TV when I saw CNN’s Ashley Banfield, surely the least qualified person on the planet to be portrayed as a “legal expert,” scratch her head in bafflement when Judy got up in opening during the guilt phase and immediately said that her client was unequivocally guilty of being one of the Boston Bombers. Poor Ashley was dumbfounded. Of course that is probably because she has zero legal training or actual experience. She is not even a lawyer, much less a criminal defense attorney. I have no idea why CNN puts her in this position. They must not know much about the law.

So, for Ashley’s benefit (since by now you all now why Judy did what she did) let me explain: by taking this approach, Ms. Clarke managed to avoid alienating the jury right out of the box while simultaneously allowing her to begin “planting the seeds” needed to persuade the jury not to kill her client. Simply put, she was saying, “Yeah, he did it. But he was just a stupid teenager who lived in the shadow of his horrible dangerous murderous older brother and only got involved in this because his brother manipulated him.” Something like that. She has continued on that theme brilliantly, finding ways to ask questions about forensics that support this theory: the fingerprints on the bombs were the older brother’s, the computer searches were done by him, not Dzhokhar, who was just a stupid kid rocking out on music and porn and Facebook on line, not bombs. Etc. Good work, Ms Clarke. The fact that she is probably right doesn’t hurt either.

Which brings me back to the snippet. This makes me mad. It is not the first time I have been mad at a US Attorney and it won’t be the last, I am sure. You see, they tend to be the bullies in the sandbox. The ones with all the toys. Twice the size as everyone else. And their “parents” own the sand box.

They have all the advantages, all the power, all the money, and all the resources. Snap their fingers and 1000 FBI and Homeland Security agents are scurrying around like rats at their beck and call. And still they cannot resist the urge to cheat, to throw sand at the little kids.

It is the huge elephant in the room in our federal criminal justice system, one that few normal citizens ever find out about… unless they wind up caught up in it personally, in which case they are all like deer in headlights. One of the most difficult things to do as a criminal defense attorney is to try to explain just how stacked the deck is in federal court to clients who naively believe in fairness, without sounding too cynical or defeatist in the process. It’s hard.

What was the snippet that makes me so mad here? A photograph. That’s right. Just a photo. Of Tsarnaev flipping his middle finger at a surveillance camera. Have a look.

They then argue that Tsarnaev is flipping the bird to the entire nation, expressing his hate and venom at our entire way of life. The only problem is that this is complete b.s. He may have hated and despised us all and wanted to kill small children just for fun — in other words he may even be a good candidate for the death penalty in many people’s minds. But this is not proof of that. This is proof of a bored annoyed teenager — acting like one.

You see the prosecutor took that photo from a video. Have a second look. You can see a caged young man, held for hours and hours alone in a holding cell, bored, annoyed, walking in circles. Walking up to the surveillance camera and using it as a mirror, straightening his hair (was that evidence of evil intent? — don’t tell my wife). For a split second he flashes a “V” (wonder what that proves?) then for another tiny split second, barely extends his middle finger. That is it. Is that reason to kill him?

As Glenn Greenwald points out in his excellent analysis of this “evidence” it is incredible that instead of focusing on an American hating murderer of small innocent children, willing to do anything to rain grief and misery down upon the country, the US Attorney cannot resist the urge to overplay their hand. Why would they possibly want to do this? Easy. Because they are worried that Judy Clarke’s approach was working. In other words, that the criminal defense attorney was doing a good job, just like the Constitution says they should, and they just can’t take it any more. They just have to paint that one brush stroke too many.

What really bothers me is that, apparently, the Government was allowed to argue all sorts of dark and dastardly inferences from this misleading photo, showing how horrible Tsarnaev is, but Ms. Clarke was not allowed to argue less nefarious inferences.

Real fair. Reminds me of the time I was threatened with contempt of court for arguing that my client was innocent.

Do not misunderstand. I do not love Dzhokhar Tsarnaev. In fact I kind of hate him. I remember distinctly where I was when those bombs went off. I was ranting and raving about how horrible that was, how they needed to get those bastards and was delighted when Tsarnaev ran over his brother and killed him. Talk about Karma. But, as I have explained repeatedly, that does not and should not matter. All that matters is that he is tried fairly and given the best defense possible. It is wonderful that he has Judy Clarke at the helm, a lawyer who has made a career out of helping despised defendants with impossible cases, all in the name of fairness. It’s just too bad the US Attorneys don’t feel the same way.


Originally published at www.seattlecriminallawyerblog.com on April 27, 2015.