Two days into Boston Marathon bombing trial, defense already facing challenges

After opening statements and two days of graphic victim testimony, two decisions from Judge George O’Toole may have stymied Dzhokhar Tsarnaev’s defense team.

The trial of accused Boston Marathon bomber Dzhokhar Tsarnaev is only two days old, yet the presiding judge has already made several rulings that could have important implications for Mr. Tsarnaev’s defense and, ultimately, whether he lives or dies.

Before testimony began on Thursday, Tsarnaev’s lawyers complained to Judge George O’Toole that survivors’ testimony from Wednesday was too gruesome and should be limited. Defense attorney David Bruck argued that under federal death penalty law, victim-impact testimony is supposed to be presented during the sentencing phase of the trial.

Prosecutors countered that the survivors were not giving victim-impact testimony, instead merely describing what they saw on the day. Judge O’Toole ultimately agreed with prosecutors and refused to limit survivors’ testimony.

That decision, coupled with an earlier ruling from O'Toole may have hampered the defense's strategy of portraying Tsarnaev as a peer-pressured accomplice to his older brother, Tamerlan, who was killed during a manhunt following the bombing in April 2013. Ideally, the defense team would like to establish this argument through both the guilt and sentencing phases of the trial.

However, prior to opening statements on Wednesday, O’Toole ruled that in the guilt phase he would limit discussions on whether Tsarnaev was "more or less culpable" than his older brother. The judge added that such arguments were generally not relevant before the sentencing phase of the trial, when the jury would decide whether Tsarnaev should be sentenced to death or to life in prison.

Daniel Medwed, a law professor at Northeastern University in Boston, says that he was surprised by O’Toole’s first decision — to restrict the defense team’s ability to make the argument that Tamerlan was primarily responsible for the bombings.

"I will be curious to see the extent to which this decision restricts the [defense] team’s ability to make this argument going forward," Professor Medwed said in an e-mail to the Monitor. "If the defense is denied the chance to develop this argument [in the guilt phase], then it might greatly affect the defense strategy."

O’Toole’s decision to not limit survivor testimony during the guilt phase of the trial was less surprising, Medwed said.

"The prosecution needs to prove its case beyond a reasonable doubt and presenting eyewitness testimony can be a compelling way of trying to do so, even if much of that testimony is particularly well-suited for the sentencing phase," Medwed wrote.

Medwed added that the defense might renew its objection if the prosecution presents so many survivors during the guilt phase that testimony becomes cumulative or redundant, "at least in terms of establishing the elements of the crimes."

The trial began Wednesday morning with opening statements from both legal teams, and the jury has spent the past day and a half listening to testimony from a series of prosecution witnesses who attended the Boston Marathon on the day of the bombing.

The first phase of the trial will deal expressly with Tsarnaev’s guilt or innocence regarding the 30 federal charges against him. If he is found guilty, the same jury will then hear the second phase of the trial, determining whether Tsarnaev should be sentenced to death or life in prison without possibility of release.

Tsarnaev’s lead attorney, Judy Clarke, left little ambiguity in her opening statement as to how her team views their client’s guilt.

"It was him," Ms. Clarke told the jury on Wednesday morning.

"We do not and will not at any point in this case sidestep or attempt to sidestep Dzhokhar’s responsibility for his actions," Clarke added.