Tsarnaev defense: spare him the death penalty, put him in supermax prison

The final act of the Dzhokhar Tsarnaev trial began Monday with his defense team laying out in its opening statement why its client should be spared the death penalty.

In front of a courtroom at almost full capacity, defense attorney David Bruck opened the morning session with a soft and measured plea to the jury to instead sentence Mr. Tsarnaev to life in prison for participating in two bombings near the Boston Marathon finish line in April 2013 that resulted in three deaths and more than 260 injuries.

About three weeks ago, a jury convicted him on all 30 charges related to the bombings, triggering a sentencing phase in the trial to determine his punishment: either death or life in prison without the possibility of release. Last week, after three days of testimony, the government rested its case in that phase, calling for Tsarnaev to receive the death penalty.

For the defense, the sentencing phase will allow it to address issues it's been able only to dance around so far in the trial. Since the first round of opening statements in early March – when defense lawyers essentially admitted Tsarnaev’s guilt – their primary goal has been to spare his life.

In his almost hourlong opening statement, Mr. Bruck began by acknowledging the horror of the bombings and the suffering of the hundreds of victims that the jury has been hearing about throughout the trial.

But he also used that graphic testimony to make the point that the death penalty can never match or cancel out the suffering of the bombing victims.

“You’ve now seen more pain and more horror and more grief in this courtroom than any of you will have thought possible,” Bruck said to the jury. “There is no evening the scales, there’s no point hurting him the way others were hurt because it can’t be done. All you can do is make the best choice.”

The sentencing phase also enables the defense to dig into an argument it touched on but lightly in its initial defense – that is, the role of his older brother and co-bomber, Tamerlan. According to the defense, Tamerlan Tsarnaev was the radicalized mastermind of the bombings who pressured his younger brother into helping execute his own personal jihad.

“No one is going to claim that Tamerlan forced Dzhokhar to commit these terrible crimes,” said Bruck. “But the evidence will show that if Tamerlan hadn’t led the way, Dzhokhar never would have done any of these things.”

“How do we know this?” he added. “Because Tamerlan's motivation to carry out this attack was so much stronger and had been building for so much longer.” 

The first slate of witnesses on Monday saw the defense aggressively pursue a strategy of portraying Tamerlan as an imperious, irascible man who grew increasingly radical over the years.

The first three witnesses were men who saw Tamerlan shout down an imam twice in the months before the bombings: Laith Albehacy, Abderazak Razak, and Loaf Assaf, the imam whom Tamerlan confronted.

In late January 2013, Mr. Assaf described Tamerlan interrupting a sermon he was giving comparing the prophet Muhammad to Martin Luther King Jr.

“He was fired up, very hot, and he was shouting, ‘This is wrong,’” recalled Assaf. “He kept saying,‘This is not Islamic, this is not right, you are a hypocrite,’ and people at the time were telling him to shut up and sit down.”

Judith Russell – mother of Katherine Russell, Tamerlan’s widow – testified later in the afternoon that he tried to talk to her about Islam and politics “every time I saw him.”

“He always wanted to talk about how Islam was good, and over time it came to seem an obsession,” Ms. Russell said. “Over the time I knew him, I saw a progression in the intensity of his beliefs.”

In his opening statement, Bruck also outlined how the defense plans to show how the Tsarnaev brothers' turbulent and nomadic childhood – disrupted by decades of conflict and forced migration in their native Chechnya – helped contribute to their final decision to commit the bombings.

On the day the defense began to make its case that Tsarnaev should be spared the death penalty, another poll was released showing that less than 20 percent of Massachusetts residents believe he should be put to death for this crime.

These results – which continue a trend among residents in the region favoring life in prison over death for Tsarnaev – also found that, despite these specific opinions on Tsarnaev, nearly a third of respondents support the death penalty for the most egregious crimes.

“To voters, it would seem death is too easy an escape,” said Frank Perullo, president of Sage Systems, which conducted the poll for The Boston Globe.

Near the end of his opening statement, Bruck tried to show just how punitive life in prison would be for Tsarnaev. He showed the court aerial pictures of the sprawling, snow-covered federal super maximum security prison in Florence, Colo. The prison – also known as ADX Florence or the “Alcatraz of the Rockies” – houses the male inmates in the federal prison system deemed most dangerous and in need of the tightest control.

“This is where the government keeps other terrorists who used to be famous but aren’t anymore,” he told the jury.

He then moved to another photo, a close-up of a small barred window staring up at the sky. The window, Bruck said, represents inmates’ only contact with the outside world for the majority of their sentence. Communications would be strictly limited in the facility, he added, and a camera in his cell would watch him 24 hours a day.

“No matter what [Tsarnaev] does now, no matter what regrets he feels, no matter how he matures, no matter what amends he might want to make, his last choice came when he was 19, and he will never have the chance to make another choice again,” said Bruck.