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Boston Marathon bombing trial: Should Tsarnaev testify in his own defense? (+video)

The defense team for Dzhokhar Tsarnaev, the accused Boston Marathon bomber, will have to weigh the risks and rewards of putting their enigmatic client on the stand. 

Owner of boat\, where Tsarnaev found, what he saw

In the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev, more than 50 witnesses have been called to the US District Court in South Boston to give vivid and dramatic testimony recounting four fateful days in April 2013. Victims and experts have appeared in chronological order to piece together the chain of events, helping the jury become all too familiar with phrases like "military-grade explosives," "shrapnel," and "carotid artery."

But all this witness testimony has orbited around one central character who has so far remained inscrutable to outside observers and, presumably, the jury. Amid the often agonizing detail of the bombings recounted daily in the courtroom, the thoughts and feelings of Mr. Tsarnaev himself have remained stubbornly elusive.

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Lawyers on both sides have attempted to drop hints about Tsarnaev throughout the trial, trying to assert his personal level of culpability in a crime that the defense acknowledges he carried out with his older brother, Tamerlan Tsarnaev, now deceased. Testimony from FBI investigators and cellphone experts has fixated on how the brothers were physically positioned at the marathon finish line: Was Dzhokhar standing next to Tamerlan? Or behind him? Also, Dzhokhar Tsarnaev had two Twitter accounts – one of which seemed much more preoccupied with Islam than the other – but was this evidence of a religious radicalism, or was it harmless quotes of rap lyrics and TV shows?

These piecemeal insights into Tsarnaev's behavior raise the question of whether he will take the stand himself – and if so, what he might say.

The question of whether Tsarnaev will testify in his own defense is a complicated one. His lawyers, having already acknowledged his role in the bombings, albeit without changing his not-guilty plea, appear to be focusing their defense on sparing him the death penalty. And they've been trying to shift the bulk of the blame for the bombings onto Tamerlan Tsarnaev.

David Hoose, a defense attorney in Northampton, Mass., who specializes in death penalty cases, says he'd be "very surprised" if Dzhokhar Tsarnaev ends up taking the stand. But there's "really never been a case quite like this one, so anything is possible."

US District Judge George O'Toole has asked that most arguments relating to Tsarnaev's culpability and his relationship with his brother take place only in the event of a sentencing phase in the trial. Should that phase occur, the jury would listen to more witness testimony and arguments over whether Tsarnaev should receive either the death penalty or life in prison without possibility of release.

It is during this stage that Tsarnaev would be most likely to take the witness stand himself. After weeks of testimony about his actions from other people, it could be his only opportunity to present his side of the story to the jury.

Still, according to outside experts, it would be very unusual for Tsarnaev to take the stand. Mr. Hoose says he isn't aware of any federal capital case where the defendant testified.

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"Criminal defense lawyers fall into two categories: ones who think you should put your client on the stand unless there's a reason not to, and then there are those – I think majority – who feel you don’t put your client on the stand unless you have to," he says.

There are several reasons for this prevailing opinion, Hoose says. A defendant taking the stand allows the individual to tell his or her side of the story, perhaps building sympathy with the jury. But it also exposes the defendant to cross-examination from the prosecution, which could wipe out the positives of any testimony he or she gives.

Prosecutors would be "smacking their lips" at the opportunity to cross-examine Tsarnaev, Hoose says. They'd probably want to lay out "in excruciating detail all the opportunities and all the moments along the way where he could have changed his mind, where he could have decided to not do what he did."

Indeed, sometimes it can be too risky to try to include the defendant's perspective. When a defendant takes the stand, Hoose says, the jury's whole attention is on him or her, potentially at the expense of other factors that the defense wants the jury to consider during sentencing.

"Once you put your client on the stand, I think the focus comes completely onto him as opposed to all of the other mitigating circumstances that you’re amassing and gathering and urging the jury to take into consideration," Hoose says.

In the view of Tom Nolan, a criminologist at Merrimack College in North Andover, Mass., Tsarnaev has "nothing to lose" by testifying.

"His life literally hangs in the balance, and that would be the only occasion where this defendant is going to be ... able to plead for his life," he adds. "Having him remain mute I think increases the possibility of him getting the death penalty, and [the defense's] job right now is to keep him alive."

It is also possible that the jury wants to hear from Tsarnaev, according to some outside experts. He has been noticeably wooden and sullen in the trial so far. Besides occasionally smiling to his lawyers or glancing up at witnesses, he rarely shows any emotion or reaction to what's happening. Beyond the different colors of shirts under his blazer every day, journalists have had little to report about his movements, beyond the occasional scratching of his nose or fiddling with his hands.

"I’d say the jury is dying of curiosity," says Rosanna Cavallaro, a law professor at Suffolk University in Boston. "They want to hear from that person, they’ve heard a lot of evidence about that person, and they are waiting to get that other piece of puzzle." 

Nevertheless, the common option in federal death penalty cases is for the defendant's voice to be heard through friends and family members. 

Hoose was a member of the team that defended Kristen Gilbert, a nurse at a Veterans Affairs medical center who was convicted of fatally poisoning seven of her patients. However, the jury spared Ms. Gilbert the death penalty, and she is serving life in prison.

Hoose and his team were able to call Gilbert's father, two grandmothers, and former husband to the stand to speak to the impact her execution would have on them and their families. Her grandmothers recalled "cookie baking and quiltmaking," and her former husband – who had been a government witness earlier in the trial – submitted a statement for the defense expressing his deep concern about the injury his sons would sustain if their mother were executed.

Defense lawyers in federal death penalty cases often look for "someone [who] was treated kindly by this person and cares about this person," Hoose says.

"If this person’s death would mean something to someone who’s a good person, then maybe his life is worth saving after all," he adds.

But the cast of people that Tsarnaev's team could call on to provide such testimony appears limited. His parents are not in the country, having moved back to the Dagestan region of Russia. His father was quoted in January as saying, "Americans are going to harm my second son the same way they did to my oldest son."

Tsarnaev has two sisters living in New Jersey, but it is unclear if they will be witnesses in the trial. Katherine Russell, Tamerlan Tsarnaev's widow, has not been identified as a witness for prosecutors, her lawyer said when the trial began.

Three of Tsarnaev's college friends from the University of Massachusetts at Dartmouth have their own legal cases to deal with, related to getting rid of evidence related to the bombings and lying to investigators. It's not clear if they will testify for either the prosecution or the defense in the Tsarnaev trial.

Still, Hoose says it's "likely" the defense will call a family member to testify and discuss Tsarnaev's childhood and relationship with his brother. And Professor Cavallaro says it's possible the defense could call on high school friends and acquaintances to help present Tsarnaev's human side to the jury.

"There are people who can testify truthfully because they were on his wrestling team [in high school], they went out with him to house parties, and kids who would take the stand with no skeletons in their closet," Cavallaro says. "They could do a lot there without having to call [Tsarnaev]. They could shore up that image of him as a kid who went off the rails because of this very bizarre relationship with this very disturbed brother."

Perhaps the only certainty about Tsarnaev testimony is that, if it does happen, it will be because Tsarnaev himself wants to take the stand. Defendants are encouraged to follow their lawyers' instructions, but a criminal defendant is also guaranteed certain trial rights via the Fifth and Sixth Amendments, including the "ultimate authority" to determine whether to plead guilty, waive a jury trial, testify on his or her own behalf, or take an appeal.

Also, the effectiveness of any Tsarnaev testimony would hinge on whether it fits into his defense team's larger strategy.

Amid days of dense and emotional testimony, his lawyers have taken what few opportunities arise to try to portray Tsarnaev as a naive teenager caught up in the schemes of his radicalized, bullying older brother. If testimony by Tsarnaev were to not reinforce this narrative, it could ruin months of delicate defense work. And it's unclear how Tsarnaev feels about his actions now, two years later.

"If he’s able to present himself in his own voice and create a sense of his humanity and his weakness, that he's sympathetic, then that’s something I think his lawyers would want to do," Cavallaro says. "But I don’t know where he is psychologically right now."

Ultimately, the risks of the defendant taking the stand often outweigh the potential benefits, Hoose says, especially when it comes to federal death penalty cases.

"I think that’s always the case," he says. "[But] there’s never been a case quite like this. Unusual cases make for unusual decisions and unusual rulings."


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