“Sometimes children who are forgotten or neglected or raised in chaos and craziness are able to recognize that they don’t have to protect their families and they can ask for help and get it and their hollowness does not get filled up by the darkness of the most dominant person in their lives, who they happen to love beyond their understanding. Not so with Dzhokhar.”
Judy Clarke’s closing argument covered pages 96 – 136 of the court document. She made the above statement on page 121.
I would have opened with it.
The first sentence of that paragraph is strong. It grabs you. It grabs your heart. The jury needed to hear it right out of the gate. If they had, it would have been an Atticus Finch moment.
How I wish I could have read her closing and advised her, rewritten it for her. How arrogant of me to say that? One needs a certain degree of arrogance in the courtroom. I could have pulled it off.
I am not an attorney. I have never tried to hide that fact. I am a fiction writer, as yet unpublished, who happens to think like an attorney and love a boy I have never met like a mother loves a son.
I will never write a crime novel. I want no profit from this blog. My only reason for creating it is to help Dzhokhar and comfort those who mourn for him, including me.
I know some of the points I make are being rewritten and discussed in other places on the internet. I am actually happy to see that. I make no protest when I am not given credit. Some people want the throne. I prefer to be the power behind it.
So my closing would have begun with the above statement but I would have left off the second sentence. It wasn’t time to mention Dzhokhar by name yet. The wave was still building height; Judy let it break apart before it hit the beach.
The jury needed time to listen and think of all the kids they knew personally who had overcome tremendous odds. Perhaps, in some cases, they would have been reflecting on their own painfully challenging past. They needed to call to mind all the troubled families they knew or were a part of.
This case was all about emotion. Clarke needed to make them feel some of her own.
After saying “Not so with Dzhokhar” she continued:
“If you’re looking to me for a simple and clean answer as to why this young man, who had never been arrested, who had never sassed a teacher, who spent his free time in school working with disabled kids – if you ask me – if you expect me to have an answer, a simple, clean answer as to how this could happen, I don’t have it. I don’t have it.”
In my opinion, saying “I don’t have it” (and saying it twice), is just as damaging as saying “it was him.” It makes me cringe all over again.
And there is no “if” about it – the jury IS looking to the defense attorney to explain how all this happened. We all are – or were.
Fallacy – noun: a mistaken belief, especially one based on unsound argument.
On page 118 Clarke says this:
“We’ve told you that Dzhokhar followed his brother down Boylston because that is the tragic truth. But if not for Tamerlan, this wouldn’t have happened. Dzhokhar would never have done this but for Tamerlan. The tragedy would never have occurred but for Tamerlan. None of it.”
“Dzhokhar became convinced of the fallacy of the cause of his brother’s passion and became a participant. He carried a backpack, and he put it down in a crowd…”
If I had been a juror, I would have stopped listening at this point. I like questions answered at the point that I think of them. If they aren’t answered, they become a distraction to my hearing anything further. And I have a big question in response to that statement: How does one become convinced of the fallacy of the cause of someone’s passion and become a participant?
I would have understood if she’d said:
“Dzhokhar became convinced of the absolute rightness of the cause of his brother’s passion and became a participant.”
I would have understood if she’d said:
“Dzhokhar became convinced of the fallacy of the cause of his brother’s passion and yet he still became a participant. How did this happen?”
But to say:
“Dzhokhar became convinced of the fallacy of the cause of his brother’s passion and became a participant” and then keep talking about the actions that were taken as a result “He carried a backpack, he put it down in a crowd…” is beyond confusing to me.
I hate confusing. Give it to me straight, especially during closing arguments. This is the last thing I am going to hear from you before I decide if your client lives or dies. It will be in my mind as I prepare to make my marks on the jury form.
I found another disastrous statement on page 98:
“I’m not asking you to excuse him. There are no excuses. I’m not asking you for sympathy. Our sympathies lie with those who were harmed and killed and their families.”
As Dzhokhar’s attorney, I wouldn’t have said that if my life depended on it. As his attorney, I would have been asking for sympathy, against all odds.
And you would not have seen me chatting and laughing with the prosecution when court was not in session. I would not have been there to make nice. I would have been like the actor who stays in character between scenes, remaining by my client’s side in a visual display of where and with whom my sympathies rested.
Defense attorneys are hated when the crime is heinous enough. I would have expected the scorn and worn it well. When the storm comes, you turn your face to the wind – it keeps the hair out of your eyes so you can see where you’re going.
There are many points in this closing argument where it is unclear to me where Clarke was trying to go. On page 136 she said:
“Finally a sentence of life in prison without the possibility of release allows hope.”
STOP RIGHT THERE… it does? Excuse me? The Pope said a sentence of life without the possibility of parole is nothing more than a hidden death sentence and I agree with him.
On page 135 Clarke had already said this about LWOP:
“It ensures that Dzhokhar Tsarnaev will be locked away in a bleak environment, in bleak conditions.” And we all know that for him, bleak means solitary.
Let’s do a word association. I say “bleak.” You say “hopeless.” Right? Most people do not see a bleak environment with bleak conditions as very hope-inspiring.
In spite of all the mistakes in the closing, three jurors agreed with the strongest four mitigating factors:
1. DT acted under the influence of his older brother.
2. Whether because of Tamerlan’s age, size,
aggressiveness, domineering personality, privileged
status in the family, traditional authority as the
eldest brother, or other reasons, DT was particularly
susceptible to his older brother’s influence.
3. DT’s brother Tamerlan planned, led, and directed
the Marathon bombing.
7. DT would not have committed the crimes but for
his older brother Tamerlan.
We have not been told if the same three jurors agreed with all four mitigating factors. I would like to assume they were because the factors are so very similar and inter-related. It would just make sense. But remembering that nothing has made sense in this trial, I don’t want to assume anything.
Besides, let us pretend, for the sake of argument that three different jurors agreed with each of the four factors. Do the math: three different sets of jurors multiplied by four factors equals twelve jurors. If only that were true, which I know it likely was not. It would mean not a single juror believed deep down that he deserved the death penalty yet they all voted in favor of the ultimate punishment.
How did this happen?
How does a person say “I believe you acted under the influence of your brother, but you still deserve to die.”
How does a person say “I believe that whether because of Tamerlan’s age, size, aggressiveness, domineering personality, privileged status in the family, traditional authority as the eldest brother or other reasons, you were particularly susceptible to your older brother’s influence, but you still deserve to die.”
How does a person say “I believe your brother planned, led and directed the Marathon bombing, but you still deserve to die.”
This is the one that really gets me:
How does a person say “I believe you would not have committed the crimes but for your older brother Tamerlan but you still deserve to die.”
How do you say that to a 19-year old who has never been in trouble before? How do you not offer the chance for real redemption, and by that I do not mean life in prison without the possibility of release, although I know the sentencing options were not the jury’s to dictate.
Maybe if an Atticus Finch type closing had been the last thing the jurors heard, there would have been a better outcome.
“Sometimes children who are forgotten or neglected or raised in chaos and craziness are able to recognize that they don’t have to protect their families and they can ask for help and get it and their hollowness does not get filled up by the darkness of the most dominant person in their lives, who they happen to love beyond their understanding.
Sometimes the story has a happy ending. Sometimes it does not.
You are looking to me for a simple answer to the question of why this young man, who had never been arrested, never sassed a teacher, this kind, respectful, hard-working boy who spent his free time in school working with disabled kids, this invisible child from a chaotic, dysfunctional family, why was he unable to resist the forces that ultimately worked to tear him and his life apart?
I have that answer.
In every story of every life that is able to overcome insurmountable hardship and make good in this world, there is a point where help is offered. Someone reaches out, reaches down and says “I see you, I hear your cry, I know your pain. I have walked where you are walking. I know why you are failing, I understand the attraction of weed and alcohol when you are desperate to numb the pain that eats away at your soul, even as you laugh and smile to hide its very existence.
I see you and I am here to help.
That moment never came for Dzhokhar. And the last chance for it is now, with you. Twelve people who are this boy’s last hope.
The death penalty is for the worst of the worst. Life without parole in isolation is for the worst of the worst. This boy has survived over two years in solitary confinement and has not engaged in a single act of aggression. If he had, the prosecution would have made sure you heard about it. They would not have had to resort to a story about him giving a camera the finger. But after more than two years, that is all they had.
I understand the pressure you must feel. The crime, the suffering of the victims, was and is terrible. And this is your community. You must make a decision regarding the future of this boy and leave here to face many who want nothing less than his torture and destruction.
It takes courage to extend compassion when all those around you expect and demand justice, and by justice I mean vengeance. An eye for an eye.
Dzhokhar Tsarnaev is worth saving. He is worth redeeming. In this way, and only in this way, can good arise out of the ashes of this tragedy.
If you vote to send him to his death, I assure you, evil will have won. You can not; you must not allow this to happen.”
My hope and faith remain strong that someday soon there will be another courtroom and another trial in another state and other voices that will speak out with clarity and eloquence for Dzhokhar. How I wish it were possible for me to be one of them.