People love drama.
The sight of O.J. Simpson struggling to put on a bloody glove from the crime scene of the horrific double murder for which he was accused and the sound of Johnnie Cochran triumphantly announcing “If it does not fit, you must acquit” made for courtroom theatrics at its finest.
Anyone who followed that trial remembers: O.J. grimaced, struggled and finally, even apologetically, held up his hand, half-covered in the previously blood-soaked, frozen and now too-small leather glove thus “proving” it couldn’t possibly have been on his hand that fateful night.
He never should have been given the chance. That judgment error by the defense, along with other critical mistakes, allowed O.J. Simpson to walk out of that courtroom a free man.
Maybe jurors are like kids. Maybe they need a bit of entertainment to keep them engaged. During Dzhokhar’s trial one juror even seemed to need something just to stay awake. Given the amount of boring technical testimony about brain development and how radical Islamic literature traveled from one electronic device to another and who owned it, something dramatic was needed.
I would have used the boat note.
The jurors were taken to an undisclosed location to see the boat in context. They heard testimony as to the meaning of the words on its walls: did Dzhokhar believe them? Were they his words or just rhetoric he regurgitated?
If one looks at his actions, I would have argued, one sees clearly that Dzhokhar did not see heaven down the barrel of those guns, but something quite different, something that scared him enough to make him run. And as far as saying he wasn’t jealous of his brother, who had obtained heavenly reward before him – that did not fit with how many times he earnestly asked whether or not his brother was alive and how he descended into shock upon learning he was not.
And did the boat note constitute an actual confession; show me where it actually states that he and his brother committed the bombing. You can’t, because it doesn’t.
The burden of proof was on the prosecution. The defense did not have to prove innocence. The judge explained that. Dzhokhar’s attorneys did not make the prosecution work very hard. They did little to create anything close to reasonable doubt.
I would have. The boat note would have provided me one such opportunity.
Knowing that the writing instrument was reported at various times to be a pen, a pencil, and a marker, I would have been busy before trial creating fiberglass panel graffiti of my own with each of those instruments and making sure the person or persons who made those statements were added to the witness list.
By the time the picture of the boat note and the pencil supposedly used to create it was released to the media, I would have learned from trial and error why the story kept changing: the other methods of defacing a boat did not work.
On the day of trial, I would have been ready for a little show-and-tell.
Blank fiberglass panels would be brought into the courtroom of the same size as that containing the boat note. A large picture of the boat note would be on display to see how closely and easily I could duplicate it, one previously -reported writing instrument at a time, as I lay on my side, questioning the government witness, in a mock-up of the boat compartment where Dzhokhar was found, with the lights in the courtroom dimmed to the approximate level of light Dzhokhar would have had under the boat cover.
Sounds ridiculous? Sometimes ridiculous works.
I would have asked questions regarding how the story of the writing instrument kept changing. I would have reminded the witness what time of night Dzhokhar likely climbed into that boat and that it would have been pitch dark at that point. (He couldn’t have written with a pencil then. He wouldn’t have known it if he lay bleeding all over one.)
I would have reminded the witness that by the time it was light enough to see the next day (cue the lights s-l-o-w-l-y please) Dzhokhar would have been without food, water and medical care for let’s see now, how many hours? He would have been in terrible pain. And what effect would that have had on his mental state? I would have discussed his injuries in detail. I would have refreshed everyone’s memory on how much of Dzhokhar’s blood they saw inside the boat via pictures.
Finally, with the lights back to normal I would have thrown a boat tarp over the jury just like the one on The Slip Away when Dzhokhar crawled inside it. They would see for themselves how well it blocked light.
Sounds preposterous? Sometimes preposterous works.
There would have been no sleeping during this presentation and I think it would have led to some spirited debate in the jury room.
It may even have produced a different verdict.
People love drama and all that was needed was reasonable doubt.