Tsarnaev: Judy Clarke's Opening Statement

By Jeralyn, Section Terror Trials
Posted on Wed Mar 04, 2015 at 12:51:05 PM EST
Tags: TsarnaevTrial, Boston Marathon Bombing (all tags)

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Here are some quotes from reporters in the courtroom who listened to Judy Clarke's opening statement in Dzhokhar Tsarnaev's trial: Catherine Parrotta, Fox News and Jim Armstrong of WBZ (CBS):

"We meet in the most tragic of circumstances."

The circumstances that bring us here today still are difficult to grasp, are incomprehensible, are inexcusable.

For the next several weeks we are all going to come face to face with unbearable grief. We're going to see it, feel it, and agonize with every witness

"We will not sidestep Tsarnaev's responsibility for his actions" [More...]

The govt, defense will agree on many things that happened the week of April 15. Tsarnaev walked down street with a pressure cooker bomb

there's no question it's Tsarnaev you will see in the video leaving a bomb. "It was him."

After their pictures were on TV, the brothers "went on a path of devastation", killing Officer Collier and leaving community in fear

Tamerlan carjacked a man, Tsarnaev followed. Tamerlan fought in Watertown, but his little brother fled.

If the only question was if it was Tsarnaev who did these things, it would be very easy for you. It was him

Clarke shows photo of Tsarnaev and his brother in their backyard, asking "what took Tsarnaev from this, to this"...walking down Boylston with a backpack?

Discusses Tamerlan's radicalization and trip to Russia. "It was Tamerlan who self radicalized, it was Dzhokhar who followed him"

Tamerlan did the research on the bombs, bought the BBs and pressure cookers, fireworks, ammunition, backpacks. Tamerlan led the way every step of the way.

Make no mistake, Dzhokhar Tsarnaev's computer had the materials the government talks about, but there's no evidence he downloaded them. It all came from Tamerlan.

The computer evidence will show both brothers' computers had a library of material. But Dzhokhar spent most of his time doing things teens do

We won't argue Tamerlan forced Dzhokhar to do these things, but you will hear of the influence he had. (Tamerlan didn't put a gun to Tsarnaev's head, but he had huge influence over his brother.) (Judge chimes in: very limited evidence)

She moves on to how Tsarnaev became more attached to brother when parents left

We must hold Tsarnaev responsible for the horrible things he did. But he took that path because of his brother's influence.

The govt talked about writings in boat. "Essentially what he wrote was he was jealous his brother achieved martyrdom"

"He wrote words he read and heard". We ask you carefully assess how deeply rooted the writings may be

There are questions that can't be answered now, that we ask you carry over to the second phase

None of you would be here right now if you couldn't keep your hearts and minds open and think about the evidence all the way

Holding your minds open to the second phase won't be an easy task. That's what you promised as jurors

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Tsarnaev: Judy Clarke's Opening Statement | 11 comments (11 topical)

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It looks like Judy Clark (none / 0) (#1)
by desertswine on Wed Mar 04, 2015 at 08:22:39 PM EST

has got the toughest job in the world right now.

She's been there before (5.00 / 1) (#2)
by Peter G on Wed Mar 04, 2015 at 08:30:57 PM EST

and has done that. Done it beautifully and brilliantly, in fact. And it's "Clarke," btw, not "Clark."


: Clarke is brilliant....and... (none / 0) (#8)
by ZtoA on Thu Mar 05, 2015 at 11:48:27 AM EST

compelling.

Does Anyone Know... (none / 0) (#3)
by ScottW714 on Thu Mar 05, 2015 at 09:25:35 AM EST

...if Dzhokha wants to live ?

I will never understand the willingness of state/people to spend untold dollars to kill, yet they always broke when funds are needed to help people who have done nothing wrong other than being born poor.

How many mouths could be fed for what they are going to spend trying to kill one human being who is not disputing his guilt ?

Too many IMO.

I don't know if he does (none / 0) (#4)
by CST on Thu Mar 05, 2015 at 10:28:03 AM EST

Not that it necessarily matters, or that anyone necessarily asked, but the city of Boston residents overwhelmingly oppose the death penalty in this case and the Boston Bar association asked the Feds to drop the death penalty.

So now we have a situation where as a resident of Boston I hope the defense prevails, and I imagine there are many people that are now in that boat. It's an odd place to be.


: That is a Shame... (none / 0) (#7)
by ScottW714 on Thu Mar 05, 2015 at 11:43:56 AM EST

...they are going through the motions for something the kid admits and to trying and do something the community doesn't want done to him. In my eyes, he is practically a child.
I don't think it matters either, but it would be nice to know where he stands on his own life. I can't imagine he is being treated very well or that isolation for a young person is easy.

mitigating and aggravating factors (none / 0) (#5)
by Reconstructionist on Thu Mar 05, 2015 at 11:00:05 AM EST

Context is provide by 18 U.S.C. § 3592, which reads in pertinent part [emphasis supplied to highlight aggravating and mitigating factors which seem highly likely to be at issue in this specific case.]:
18 U.S. Code § 3592 - Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified
(a) Mitigating Factors.-- In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:
(1) Impaired capacity.-- The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
(2) Duress.-- The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
(3) Minor participation.-- The defendant is punishable as a principal in the offense, which was committed by another, but the defendant's participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
(4) Equally culpable defendants.-- Another defendant or defendants, equally culpable in the crime, will not be punished by death. [ brother is not "a "defendant"]
(5) No prior criminal record.-- The defendant did not have a significant prior history of other criminal conduct.
(6) Disturbance.-- The defendant committed the offense under severe mental or emotional disturbance.
(7) Victim's consent.-- The victim consented to the criminal conduct that resulted in the victim's death.
(8) Other factors.-- Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.
**
(c) Aggravating Factors for Homicide.-- In determining whether a sentence of death is justified for an offense described in section 3591 (a)(2), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist:
(1) Death during commission of another crime.-- The death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the commission of, an offense....
(2) Previous conviction of violent felony involving firearm.....
(3) Previous conviction of offense for which a sentence of death or life imprisonment was authorized....
(4) Previous conviction of other serious offenses
(5) Grave risk of death to additional persons.-- The defendant, in the commission of the offense, or in escaping apprehension for the violation of the offense, knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense.
(6) Heinous, cruel, or depraved manner of committing offense.-- The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.
(7) Procurement of offense by payment...
(8) Pecuniary gain....
(9) Substantial planning and premeditation.-- The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism.
(10) Conviction for two felony drug offenses.
(11) Vulnerability of victim.-- The victim was particularly vulnerable due to old age, youth, or infirmity.
(12) Conviction for serious federal drug offenses....
(13) Continuing criminal enterprise involving drug sales to minors....
(14) High public officials.-- The defendant committed the offense against [certain public officials] ....
(15) Prior conviction of sexual assault or child molestation....
(16) Multiple killings or attempted killings.-- The defendant intentionally killed or attempted to kill more than one person in a single criminal episode.

The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists

I sc$#@d that up (none / 0) (#6)
by Reconstructionist on Thu Mar 05, 2015 at 11:06:10 AM EST

mitigating:

impaired capacvity
duress
no prior record
disturbance
other

aggravating

Death during commission of another crime
Substantial planning and premeditation
Multiple killings or attempted killings
other

Does the indictment give notice of (none / 0) (#9)
by Peter G on Thu Mar 05, 2015 at 12:16:59 PM EST

some "other" aggravating factor? If not, both the statute and the Eighth Amendment (as interpreted by the Supreme Court) would bar consideration of any "other" aggravator. By law, potential mitigation (factors tending against death) is open-ended, while potential aggravation (tending to support a capital verdict) must be specifically alleged in advance, and closed-ended vis a vis the jury's options to consider any factors.


: good point (none / 0) (#10)
by Reconstructionist on Thu Mar 05, 2015 at 12:49:27 PM EST

As I recall it doesn't.
I also think the special findings list in the indictment included express "statutory" factors which I did not identify as "highly likely." I didn't think the "especially heinous, cruel or depraved factor" is higly likely to be established by evidence because it is modified/limited by " in that it involved torture or serious physical abuse to the victim."
Torture is not an issue and I don't think serious physical abuse is present. "Serious physical abuse" means a significant or considerable amount of injury or damage to the
victim's body. Serious physical abuse -- unlike torture -- may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted. However, the defendant must have specifically intended the abuse in addition to the killing.(Richmond v. Lewis, 506 U.S. 40, 45,
51, 113 S. Ct. 528, 533, 536 (1992), and the victim must have been conscious of the abuse (Sochor v. Florida, 504 U.S. at 537, 112 S. Ct. at 2121). See also 18 U.S.C. 2340 (2); United States v. Jones, 132 F.3d 232, 249-50 (5th Cir.), aff'd, 527 U.S. 373 (1999)
I also doubt the "vulnerable" victim" factor will be found applicable based on a young victim.In United States v. Johnson, 136 F. Supp.2d 553, 560 (W.D. Va 2001), the court struck
aggravator, which was based on the fact that the victim was pregnant. The court rejected the
government's contention that it was not required to show a nexus between the victim's pregnancy and
the crime, relying on the fact that "those state courts which have interpreted and applied similar
aggravating factors have universally required that the victim's pregnancy-based vulnerability somehow contribute to the victim's injury or death." The court concluded that no nexus was shown - the victim was killed instantaneously by an explosive device, and nothing about her pregnancy weakened her ability to withstand the blast. I think the same consideration apply to the youth here. "Youth" means that the victim was a child, a juvenile, a young person, or a minor, that is: any person who was, by reason of youthful immaturity or inexperience, significantly less able: (1) to avoid, resist, or withstand any attacks, persuasions, or temptations, or (2) to recognize, judge, or discern any dangers, risks, or threats. I don't see a nexus here any more than in the case of a pregnant woman being victim of a bomb.
(I could be wrong)

Interesting take (none / 0) (#11)
by CST on Fri Mar 06, 2015 at 10:17:33 AM EST

On the logic behind pleading not guilty but admitting guilt:

"Allowing jurors to reach a verdict also provides them with the cathartic opportunity to unanimously convict a heinous criminal, but still show some compassion during the second stage of the trial when jurors must decide on a sentence."