Opinion: Tsarnaev and the fallacy of justice in a death penalty trial
by O.L. Coach
April 10, 2015
For all intents and purposes, the trial on the evidence is now over.
The next phase will be focused on saving the life of Dzhokhar Tsarnaev, but before anyone suggests Judy Clark and the defense team should be hung in effigy for "losing" this case, I recommend we step back and take a moment to give some consideration as to why they might have taken the path they are on.
Granted, this is fraught with peril, as I am seeing through a glass darkly, but let us at least consider other explanations that move beyond what we are reading in the media.
Early on, high-profile defense lawyers set the expectations bar down around our ankles. In a flurry of motions they noted their they difficulty in meeting the professional and ethical requirements to provide a thorough and vigorous defense of Dzhokhar Tsarnaev - because of limited access to evidence.
Court rulings completely excluded access to specific evidence because of the government's protestations it was irrelevant or unobtainable, and after much foot-dragging, prosecutors eventually released certain evidence - but in untagged/unstamped formats, rendering it difficult to sort through the massive data dump, from a crime scene spanning an entire region, if not multiple countries.
The judge accelerated the trial process at an undue and unprecedented speed.
I suggested then, that if that's how the government and the court were going to play it, why didn't defense lawyers simply quit and walk away from the case, or better yet, not provide any kind of peer recognized defense for their client at all?
In this way, they could force a show down by compelling the Court to replace them. Here, and elsewhere, I was roundly criticized for suggesting such a thing! No attorney worth his or her salt would do this in good conscience to a vulnerable client, and if they did they risked being disbarred and certainly would find it difficult securing clients in the future...
But since the defense rested days ago and the verdict was guilty, Tsarnaev's attorneys have faced heavy criticism for apparently doing just that - offering no defense at all during the ‘guilt’ phase of the trial. After thinking it for over some, I would like to venture a guess as to why.
First, I am assuming they are world class legal minds that most of us are second guessing and therefore, we should at least consider they know more about the law, strategy, and tactics than most of us (all put together) do, and deserve to be heard and given the benefit of doubt.
Second, they are committed opponents of the death penalty. Unlike most of us, their commitment to a social cause as serious as preventing the death penalty, results in their active engagement in the struggle against it, probably on a daily basis. They don't just pay it lip service - they donate time and energy to fight it.
Third, there are close to a thousand sealed motions in this case. What is being hidden there? What is being kept from the public?
Finally, after two years of studying every rumor, innuendo and opinion, reading every eye witness account, watching every snippet of available video and audio, scrutinizing every photograph, listening to every scanner feed - it’s impossible to watch the evidence coming out of the trial without perceiving glaring inconsistencies, contradictions, out-and-out lies, and a possible cover up of immense proportions.
So assuming all of the above is true, how to reconcile the apparent defense strategy of rolling over in the guilt phase, when it would seem to scream to high heaven for an immediate rectification?
Speaking hypothetically, if I am a committed opponent of the death penalty and find myself boxed in by considerations deemed both political and of a national security nature, what do I do? In defiance of the system, I put on the best defense those limitations allow me to work with, and expose not only this specific trial, but the entire federal death penalty process for the sham hypocrisy it undoubtedly is.
It's my contention Tsarnaev's lawyers made a mockery of this trial and the federal death penalty system, by putting on the defense they have been "allowed" to utilize - before an obviously biased jury, before an obviously biased judge - nothing more and nothing less.
If there is a better example of the ridiculousness of the federal death penalty system than this, I don't know what it is.
Only death penalty attorneys know the utter insanity of arguing passionately for your client’s innocence in the guilt phase of the trial, only to have to turn around and beg for leniency and show remorse to the same jury that convicted you in the first place.
The system is terribly flawed, because it forces defendants to make a choice between life and death, rather than guilt or innocence. And in cases where the cards are stacked against you, like terrorism (or FBI shootings 150-0), the only hope is that evidence will come to light outside of the trial (such as a whistleblower), that forces a revision of the original conviction.
Maybe that is the point of Tsarnaev's meaningless defense.
Maybe, just maybe, they are forcing the case to be re-tried outside of the court system altogether - or at a minimum, outside of Boston - and as far away from Judge George O'Toole's Court as possible.
The next phase will be focused on saving the life of Dzhokhar Tsarnaev, but before anyone suggests Judy Clark and the defense team should be hung in effigy for "losing" this case, I recommend we step back and take a moment to give some consideration as to why they might have taken the path they are on.
Granted, this is fraught with peril, as I am seeing through a glass darkly, but let us at least consider other explanations that move beyond what we are reading in the media.
Early on, high-profile defense lawyers set the expectations bar down around our ankles. In a flurry of motions they noted their they difficulty in meeting the professional and ethical requirements to provide a thorough and vigorous defense of Dzhokhar Tsarnaev - because of limited access to evidence.
Court rulings completely excluded access to specific evidence because of the government's protestations it was irrelevant or unobtainable, and after much foot-dragging, prosecutors eventually released certain evidence - but in untagged/unstamped formats, rendering it difficult to sort through the massive data dump, from a crime scene spanning an entire region, if not multiple countries.
The judge accelerated the trial process at an undue and unprecedented speed.
I suggested then, that if that's how the government and the court were going to play it, why didn't defense lawyers simply quit and walk away from the case, or better yet, not provide any kind of peer recognized defense for their client at all?
In this way, they could force a show down by compelling the Court to replace them. Here, and elsewhere, I was roundly criticized for suggesting such a thing! No attorney worth his or her salt would do this in good conscience to a vulnerable client, and if they did they risked being disbarred and certainly would find it difficult securing clients in the future...
But since the defense rested days ago and the verdict was guilty, Tsarnaev's attorneys have faced heavy criticism for apparently doing just that - offering no defense at all during the ‘guilt’ phase of the trial. After thinking it for over some, I would like to venture a guess as to why.
First, I am assuming they are world class legal minds that most of us are second guessing and therefore, we should at least consider they know more about the law, strategy, and tactics than most of us (all put together) do, and deserve to be heard and given the benefit of doubt.
Second, they are committed opponents of the death penalty. Unlike most of us, their commitment to a social cause as serious as preventing the death penalty, results in their active engagement in the struggle against it, probably on a daily basis. They don't just pay it lip service - they donate time and energy to fight it.
Third, there are close to a thousand sealed motions in this case. What is being hidden there? What is being kept from the public?
Finally, after two years of studying every rumor, innuendo and opinion, reading every eye witness account, watching every snippet of available video and audio, scrutinizing every photograph, listening to every scanner feed - it’s impossible to watch the evidence coming out of the trial without perceiving glaring inconsistencies, contradictions, out-and-out lies, and a possible cover up of immense proportions.
So assuming all of the above is true, how to reconcile the apparent defense strategy of rolling over in the guilt phase, when it would seem to scream to high heaven for an immediate rectification?
Speaking hypothetically, if I am a committed opponent of the death penalty and find myself boxed in by considerations deemed both political and of a national security nature, what do I do? In defiance of the system, I put on the best defense those limitations allow me to work with, and expose not only this specific trial, but the entire federal death penalty process for the sham hypocrisy it undoubtedly is.
It's my contention Tsarnaev's lawyers made a mockery of this trial and the federal death penalty system, by putting on the defense they have been "allowed" to utilize - before an obviously biased jury, before an obviously biased judge - nothing more and nothing less.
If there is a better example of the ridiculousness of the federal death penalty system than this, I don't know what it is.
Only death penalty attorneys know the utter insanity of arguing passionately for your client’s innocence in the guilt phase of the trial, only to have to turn around and beg for leniency and show remorse to the same jury that convicted you in the first place.
The system is terribly flawed, because it forces defendants to make a choice between life and death, rather than guilt or innocence. And in cases where the cards are stacked against you, like terrorism (or FBI shootings 150-0), the only hope is that evidence will come to light outside of the trial (such as a whistleblower), that forces a revision of the original conviction.
Maybe that is the point of Tsarnaev's meaningless defense.
Maybe, just maybe, they are forcing the case to be re-tried outside of the court system altogether - or at a minimum, outside of Boston - and as far away from Judge George O'Toole's Court as possible.
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________________________________________________
We actively encourage comments, discussion and debate on this site! Please remember to keep it relevant and be respectful at all times.
