More than two months after the start of the trial for admitted Boston Marathon bomber Dzhokhar Tsarnaev, U.S. District Judge George O’Toole spoke to jurors in court Wednesday about weighing the factors that will determine a life or death sentence.
Tsarnaev, 21, was convicted of all 30 federal counts, after placing two bombs at the 2013 Boston Marathon finish line that killed three and injured more than 260. Seventeen of the charges carry a possible death penalty.
After a nearly 45-minute delayed start, O’Toole led the jurors and the courtroom through the 24-page verdict slip that will be completed during deliberation. O’Toole spoke about the steps the jury should take when assessing the charges.
The jurors must first determine whether the government has proven beyond reasonable doubt that Tsarnaev was 18 years old at the time he committed the crime, in addition to considering the aggravating factors, or circumstances of the crime that justify the death penalty, which are argued by the prosecutors in the case.
Once this has been considered, the jury is responsible for looking at the mitigating factors, or factors that potentially limit Tsarnaev’s culpability, presented by the defense. The 21 mitigating factors listed on the verdict slip do not need to be unanimously agreed upon by the members of the jury.
While some mitigating factors, such as Tsarnaev’s age, agree with the facts laid out in the aggravating factors, others directly oppose what the government has set out to prove. For example, while one non-statutory aggravating factor is “Dzhokhar Tsarnaev demonstrated a lack of remorse,” the defense argues in its final mitigating factor that “Dzhokhar Tsarnaev has expressed sorrow and remorse for what he did and for the suffering he caused.”
Lastly, each member of the jury will weigh the aggravating factors presented by the prosecution with the mitigating factors presented by the defense to determine the appropriate sentence for Tsarnaev. For the death penalty to be imposed, all 12 jurors must agree that capital punishment is the appropriate sentence.
“The decision is yours as individuals to make,” O’Toole said.
O’Toole gave the jurors many other warnings and instructions, including not to consider financial costs to the government when determining a sentence and not to consider the defendant’s choice not to testify or make any statements in court.
Following a short morning recess, Prosecutor Steve Mellin delivered the government’s closing statements. With photos on the screens, Mellin described the scene on Boylston Street after the bombs went off, reminding the jurors of witness testimony.
Tsarnaev walked up to the Forum Restaurant, Mellin said, and placed a bomb four feet behind a row of children, including 8-year-old Martin Richard, who was killed that day.
“The defendant put the backpack down behind those children, and he waited,” he said, and then stared at the jury in silence for 20 seconds. “That was 20 seconds. He waited almost 12 times that long.”
Mellin spoke in detail about Richard, Lu Lingzi, Krystle Campbell and Sean Collier, the four people who lost their lives as a result of the bombings or, in Collier’s case, the violence in the days after. He then commented on Tsarnaev’s demeanor after the bombings.
“All of this loss is overwhelming in scope and impact, yet after causing all this pain and suffering, this defendant bought a half gallon of milk without shedding a tear,” Mellin said. “He acted like it was any other day. He was stress-free and remorse-free. He didn’t care because the death and misery was what he sought that day.”
Mellin went through the government’s aggravating factors, as listed on the verdict form. He told the jurors when it comes to proving at least one intent factor, the same evidence that was used to support intent in the guilt phase still applied. Mellin held up a passage from al-Qaeda’s Inspire magazine with instructions for building a bomb.
Within one or two days, the passage read, the bomb can be ready to kill 10 people. Within a month, it can be ready to kill tens of people. Mellin later pointed out an Inspire magazine article that read, “Make a Bomb in the Kitchen of Your Mom.”
“How many people did he think would die?” Mellin said. “He didn’t set out to commit acts of terrorism on an impulse. The whole plan was well thought-out and a long time in the making.”
Mellin also highlighted Tsarnaev’s use of social media, namely his tweet from 5:04 p.m. on the day of the Marathon. “Ain’t no love in the heart of the city, stay safe people,” Tsarnaev tweeted. The next day, at 10:43 p.m., he tweeted, “I’m a stress-free kind of guy.”
In discussing these tweets, Mellin touched on the defense’s proposed mitigating factors, largely commenting on the argument that Tamerlan Tsarnaev, Dzhokhar’s deceased older brother, coerced him into helping carry out the bombings.
“Not once in those tweets did he say ‘Tamerlan made me do it,’” Mellin said. “Tamerlan Tsarnaev was not the defendant’s master. They were partners in crime and brothers in arms.”
Mellin reminded the jury about the circumstances of a life sentence. The facility Tsarnaev would be sent to, United States Penitentiary Administrative Maximum Facility in Florence, Colorado, Mellin said, is not as terrible a living situation as the defense has argued it to be.
If sentenced to life in prison, Mellin said, Tsarnaev would be placed in a cell with a window, have the opportunity to earn a college degree and speak to family on the phone and through letters. He would have the ability to speak to other inmates and prison staff, and the staff would keep him from being harmed, Mellin said.
“Times change. No one can predict the future. But his life will not be worse than death,” Mellin said.
In concluding the government’s closing statements, Mellin asked the jury to remember that Tsarnaev was an adult at the time of the crime, and though he praises his brother for becoming a martyr, the defendant himself avoided death many times in the days following the bombings.
“A death sentence is not giving him what he wants,” Mellin said. “It is giving him what he deserves.”
Following a lunch recess, defense attorney Judy Clarke stood before the jury to convince them to sentence Tsarnaev to life in ADX “supermax,” as the facility is known, instead of giving him the death penalty. She delivered a heavily biographical closing argument, highlighting Tsarnaev as an impressionable teen from a broken home, influenced by the patriarchal and war-torn culture of his family’s native Chechnya.
In either scenario, Clarke said, “Dzhokhar Tsarnaev dies in prison. The question is where and how. We’re asking you to choose life. Yes, even for the Boston Marathon Bomber.”
Rehashing testimony from the defense witnesses who considered Tsarnaev sweet, shy, hardworking and respectful of women, Clarke situated her client as the “shining star” of the Tsarnaev family, in opposition to his brother Tamerlan.
Tsarnaev, Clarke said, was the “invisible kid” of his family. Raised by first-generation immigrant parents, he idolized Tamerlan, given his father’s severe mental illness and his mother’s detached, flighty nature.
According to the defense, Tsarnaev followed his brother around “like a puppy,” and his reverence for Tamerlan only grew in 2012 after he left to attend the University of Massachusetts Dartmouth and both of their parents moved to Russia.
Tamerlan reacted negatively to his parents’ departure, Clarke said, and he went to Russia “looking for jihad,” returning six months later and continuing his search.
Clarke said her client cooperated with EMTs when he was discovered hiding in a boat at a Watertown home days after the Marathon, leaving little to suggest he would be a difficult inmate were his life to be spared from execution and lived out in maximum security.
Given his age at the time of his crime, Clarke said, Tsarnaev’s brain was not fully developed. Now 21, Tsarnaev has demonstrated remorse for his victims’ suffering, Clarke said.
“It’s not only possible, but its probable that Dzhokhar has potential for redemption,” she said.
But prosecutors said Tsarnaev is fully culpable for his crimes and scorned the defense for continually pinning the blame on Tamerlan.
“No matter how many times they say the defendant takes responsibility for his actions, they continue to blame it on his brother,” said Assistant U.S. Attorney William Weinreb in the government rebuttal.
Weinreb dismantled the defense’s claim that Tsarnaev was emotionally dependent on his brother. Tamerlan was abstinent and disapproved of his brother’s use of drugs and alcohol, Weinreb argued, prompting Tsarnaev to largely avoid his brother altogether.
Not only was Tamerlan far less influential in Tsarnaev’s life than the defense has maintained, but his home life was a far cry from dystopian, Weinreb said. The Tsarnaev family, Weinreb said, lived in an admirable Cambridge neighborhood in a “snug” but “adequate” apartment. The Tsarnaev kids had their basic needs met, he said, with American luxuries like iPods, cars and computers in addition.
Pictures showed a smiling Tsarnaev partaking in extra-curricular activities, such as wrestling and Model U.N., where, Weinreb said, he enjoyed “more support and guidance than a lot of adolescents have.”
After addressing many of the defense witness’ testimonies by Tsarnaev’s “friends,” who Weinreb regarded as acquaintances and “a number of women who were sweet on the defendant,” the prosecution rejected for the last time the notion that Tsarnaev did not “self-radicalize.” Many people look at materials like Inspire — which were inconsequentially provided by Tamerlan — and don’t “shred people alive,” Weinreb said.
The jurors met briefly at the conclusion of the day to begin deliberations, and they are expected to continue Thursday morning.
