The Closing That Should Have Been

Those who believe Dzhokhar Tsarnaev is guilty of bombing the Boston Marathon consistently cite just three reasons for their belief:

1. He confessed from his hospital bed.
2. His attorney said he did it.
3. He admitted guilt when he made allocution.

I have read these three reasons again and again in anger-laced comments written by those whose minds have long ago rusted shut regarding Dzhokhar Tsarnaev. In light of the fact that they can cite no other evidence of his guilt, I wonder how this is possible and why they refuse to look any deeper.

Doubt speaks loud at 2am. That’s when I sometimes find myself wide awake wrestling with it. Even those who are strong in faith walk through that valley from time to time, though I wish it were not so.

I would be willing to bet even Noah experienced moments when he was tempted to throw the whole thing under a big tarp and check with God again before nailing on another board. And if he had, who could have blamed him? An ark is a hard thing to hide.

So is a blog for that matter. Not that I would ever want to hide or discontinue this one. Luke 11:33 says “No one lights a lamp and puts it in a place where it will be hidden, or under a bowl. Instead they put it on its stand, so that those who come in may see the light.”

This issue of Dzhokhar’s guilt or innocence is not some controversy in a presidential debate where the one who presents the most believable “spin” is declared the winner. In a criminal case, things are either true or they aren’t.

Take all of your wasted honor
Every little past frustration
Take all of your so-called problems
Better put ‘em in quotations
(“lawyer” “ lawyer”)
(“Can we do this later?”)
(“You said you were gonna let me sleep…”)

Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say

1. He confessed from his hospital bed.

I will admit that one gave me pause and it was not a good feeling. I considered the fact that I could be passionate, eloquent and still wrong.

And then I remembered all those episodes of The First 48 and Dateline I’ve seen on TV and all those articles I’ve read where innocent people recount what it’s like to be falsely accused then questioned again and again with intensity.

“We know you did it…”

The ground rules of Interrogation 101 do not include treating the one being questioned with common courtesy and showing them respect. Their physical needs are often shockingly disregarded. Intimidation is a given. Despite what a person says and no matter how many times they say it, if it is not what the interrogators already believe to be true, it will be rejected and ignored until they hear (or get you to write) the phrase that pays.

This, I believe, is how a bedside “confession” was obtained (read coerced) from Dzhokhar in the early hours following his capture.

Given the severity of his injuries, his emotional state from not knowing if his brother was dead or alive, the requests to “do this later, let him sleep, let him throw up, remove the handcuff” (the handcuff that kept him shackled to a bed he couldn’t have risen from if he had tried), who could fault him for confessing just to be left the hell alone?

Walking like a one-man army
Fighting with the shadows in your head
Living out the same old moment
Knowing you’d be better off instead,
If you could only

Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say

2. His attorney said he did it.

With a defense attorney saying things like this… who needs a prosecution? From How Courts Work by The American Bar Association:

The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.

The trial begins with the opening statement of the party with the burden of proof. This is the party that brought the case to court – the government in a criminal prosecution – and has to prove its case in order to prevail. The defense lawyer follows with his or her opening statement. In some states, the defense may reserve its opening statement until the end of the government’s case. Either lawyer may choose not to present an opening statement.

In a criminal trial, the burden of proof rests with the government, which must prove beyond a reasonable doubt that the defendant is guilty. The defendant does not need to prove his or her innocence – the burden is on the government.

The lawyers’ closing arguments or summations discuss the evidence and properly draw inferences. The lawyers cannot talk about issues outside the case or about evidence that was not presented.

The judge usually indicates to the lawyers before closing arguments begin which instructions he or she intends to give the jury. In their closing arguments the lawyers can comment on the jury instructions and relate them to the evidence.

The lawyer for the government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail in the case.

After that side has made its case, the defense then presents its closing arguments. The defense lawyer usually answers statements made in the plaintiff’s or government’s argument, points out defects in their case and sums up the facts favorable to his/her client.

Because the government has the burden of proof, the lawyer for that side is then entitled to make a concluding argument, sometimes called a rebuttal. This is a chance to respond to the defendant’s points and make one final appeal to the jury.

Occasionally the defense may choose not to make a closing statement. If so, the government loses the right to make a second argument.

For whatever misguided, twisted or even criminal reasons, Judy blew it with her opening statement. According to the rules of engagement above, she did not have to make that same mistake again in her closing but she did –  and I wince every time I read it. Her remarks sound like they should be coming from the mouth of a prosecutor.

Starting at an early age, Dzhokhar meekly accepted loss without putting up a fight. Becki Norris talked about one such time when she testified on his behalf in the sentencing phase of the trial. Dzhokhar wore the wrong color pants to school as they were all he had. For this infraction he was sent home. His mother was so angry that she pulled him from the school where he was thriving and on track for a bright academic future. His teacher loved young Dzhokhar, saw his potential and wanted to try talking to his mom. Dzhokhar quietly told her not to.

Apparently, even back then, Dzhokhar saw some battles as too big to fight, so he didn’t try – even when someone wanted to fight for him. He saw giants and knew he was no match for them.

Have no fear for giving in
Have no fear for giving over
You’d better know that in the end
It’s better to say too much
Then never to say what you need to say again

3. He admitted guilt when he made allocution.

An allocution is a formal statement made to the court by the defendant who has been found guilty, prior to being sentenced. It allows the defendant to explain why the sentence should be lenient.

In light of this definition and what Dzhokhar actually said, I wondered, at first, why he said anything at all. And then it hit me: Dzhokhar was doing what Dzhokhar has always done that made him so loved by all who knew him. Dzhokhar was trying, in his own way, to comfort and reassure the victims, even as they closed their eyes, their hearts, and their minds to what he had to say. He was not trying to explain why the sentence should be lenient. He was doing what he did back in school. He was accepting the outcome without putting up any fight at all.

That is why I found the statements made afterwards by Carmen Ortiz so offensive. One cannot renounce (violent extremism, terrorism) what one has never embraced.

After seeing how the trial played out with no actual evidence presented, no smoking gun found, no believable video, no riveting expert witness etc., if I had been Judy Clarke, I would have gone for broke with my closing statement, explaining why I said “it was him” when clearly, according to the evidence, it was not.

I would have found a way to rectify my mistake even if it meant disbarment or a contempt of court charge. If it was going to be my last case, I would have made damn sure it was my finest. I would have found a way to withstand the corrupt judge who fought me at every turn. This case would have brought out the Erin Brockovich in me. Dzhokhar deserved a fighter who would fight for him with every fiber of their being – whether he wanted them to or not.

Here is how I would have done it:

Even if your hands are shaking
And your faith is broken
Even as the eyes are closing
Do it with a heart wide open

Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say
Say what you need to say

The Closing That Should Have Been

Ladies and gentlemen of the jury,

On April 15, 2013 Boston, Massachusetts was hit by an earthquake. The ground shook and three people died while others were severely injured when two bombs exploded at the finish line of the Boston Marathon.

Earthquakes cause tsunamis. And tsunamis cause destruction. The epicenter of the quake may have been the finish line of the Boston Marathon, but the tsunami, the tidal wave of fear, outrage and anguish that washed over the city – that did not stop where Boylston Street ends.

The entire city and surrounding communities were engulfed, affected and continued to be affected by a tidal wave of emotion that I also encountered when I first took this case.

The first time I stood before you, I was still being affected. I said “it was him” when clearly, judging by the evidence that has been presented to you in this case it was not him.

Tidal waves strip and destroy everything and everyone they touch. No one can withstand their force though some try. Every member of this jury has been hit by a tidal wave of gore, shock, anguish and tears intended to make you react, to strip you of the ability to reason and properly evaluate what you have seen and heard.

This tidal wave, this assault of graphic pictures and heart-wrenching, gut-wrenching stories washed over you day after day after day after DAY!!!!

Many who took the stand and told these stories have visible scars on their bodies. Others who took the stand have no visible scars; their wounds are on their hearts and in their minds.

Tidal waves often come in two separate distinct phases. Both phases are overwhelming. Emotional facts are red-hot. For that reason, our brain holds onto them. For that reason the prosecution had the victims tell you their emotional stories first.

It may sound cold to remind you, but I must remind you – we are not here to prove what happened. Two bombs exploded, three people were killed, others were badly injured – we know these things happened. You knew these facts long before you became jurors in this case. You merely had to turn on your TV to learn them.

When the victims took the stand and told you what they suffered that day, I remind you that not a single person who took the stand was able to tell you who caused their injuries, their loss, their pain.

There were no eye-witnesses to the crime for which Dzhokhar has been accused. All eyes were on the race when the bombs exploded.

And yet there is a young man sitting before you, his own face and body marred by injury and you have not been presented with a single fact that proves this young man did anything to cause damage and destruction at the Boston Marathon in 2013.

What you have been shown is evidence that he was there at the marathon. You saw evidence that he made phone calls. You saw what he wore and you saw the backpack he carried on just one shoulder. You saw what he held in his hand.

And you saw him run from danger just like everyone else when the bombs exploded.

In the second phase of the tidal wave that was this trial, you were inundated and overwhelmed with information, much of it of a highly technical nature. It filled your mind to the point where you likely shut down, stopped listening. Digesting and evaluating facts about technology, geography, culture and religion is difficult and tedious.

So let me make this simple for you. Here’s what you need to understand, to know, and to remember from this case when you enter that room to deliberate:

Go over all that you have been shown. You did not see forensic evidence linking Dzhokhar to the crimes for which he is accused.

Evidence presented by cell phone records and receipts proves to you that Dzhokhar was not present when purchases were made for items the prosecution claims were used in the bombing. Dzhokhar’s tweets and computer searches proved his lack of interest in religion, politics and jihad. Devices believed to be under his control had information downloaded to them from his brother’s computer and reflected his brother’s interest in religion, politics and jihad. This was proven by technical experts who explained to you how they were able to determine the flow of information from one computer, one device, to another.

What does this mean; what does this tell you? It means, it tells you that Dzhokhar did not plan the bombing. It means, it tells you that Dzhokhar had no interest in carrying out violent jihad against the United States by bombing the Boston Marathon.

You heard the prosecution’s own witness testify that the fingerprints found on the bomb fragments do not belong to Dzhokhar. Ask yourself how can this be? If he helped make the bombs, his fingerprints would be there. And yet they weren’t. You know what this tells you: Dzhokhar did not make the bombs.

Dzhokhar did not plant a bomb at the marathon.. He came to the marathon with a backpack (May I have exhibit # xxx again please) – this backpack. This is the one he brought to the marathon that day. And this (may I have exhibit # xxx please) is a picture of the backpack the prosecution said held the second bomb.

These backpacks are clearly two different colors. What does it tell you when you can clearly see Dzhokhar brought a different color backpack to the marathon?

You have been shown a video of Dzhokhar surrounded by a crowd of spectators watching the race. At one point, his shoulder dips and you were told by the prosecution this is when Dzhokhar set down his backpack. This was the prosecution’s slam dunk video that was supposed to end all question over whether or not Dzhokhar planted a bomb at the marathon that day.

Whether Dzhokhar set his backpack down or not is irrelevant. The color of his backpack is proof that his pack did not contain the second bomb. This video is meaningless to this case.

So according to the fingerprint evidence Dzhokhar did not make the bombs. According to pictorial evidence and testimony by the prosecution, Dzhokhar did not bring a bomb to the marathon. When he set his backpack down, he did not plant a bomb at the marathon.

What does that leave?

Did Dzhokhar still somehow detonate the second bomb that exploded at the marathon? Let’s review what you were told about that. You were told that a detonator was found at the site of the second explosion and that fingerprints on that detonator belonged to Tamerlan, not Dzhokhar. So what does that tell you? It tells you Dzhokhar did not detonate the second bomb.

As much as your emotions and the emotions of the victims may be pushing you to find Dzhokhar guilty in order to hold someone accountable for this terrible crime, I remind you that you have seen and heard nothing that can support the claim that Dzhokhar is the person to be held accountable.

On April 15, 2013, Dzhokhar Tsarnaev clearly and casually, on just one shoulder mind you, carried not a black backpack, but a light colored backpack with dark trim to the Boston Marathon, thereby proving he did not bring or plant a bomb as accused. In his hand, just as clearly, he held a cell phone and only a cell phone. A detonator for the second bomb was found and when it was found, Dzhokhar’s prints were not on it, thereby proving he did not detonate a bomb as accused.

When Dzhokhar was a child, he wore the wrong color pants to school and was sent home for it. On April 15, 2013, he brought the wrong color backpack to the Boston Marathon.

And it is time for you the jury to send him home for it.

The evidence is speaking with a clear voice, as clearly as I am speaking to you right now. The evidence is telling you to find Dzhokhar not guilty. That is the only reasonable, unbiased verdict supported by the evidence. To come to any other conclusion is to decide by  fear, anger and emotion – not fact.

It’s time for you to look at the color of the two backpacks, declare him not guilty and send him home for it.

Published by: iwasleah10years

Winston Churchill said no crime is so great as daring to excel. I am ready to take that dare. An unexpected and somewhat unexplainable compassion for Dzhokhar Tsarnaev has drawn me out of my comfort zone.


2 thoughts on “The Closing That Should Have Been”

  1. That is the million dollar question… Are people deliberately obtuse or genuinely confused? I find the latter hard to believe.

  2. Excellent and powerful!! I can’t help but wonder why you see it all so clearly, so full of common sense, along with myself and others, yet the majority of people don’t really see or hear anything, like zombies on a couch devouring all the MSM propaganda BS that gets dished out. What will it take for people to wake up, maybe a stint in a courtroom as a defendant. That would do it for sure.

    I love this “When Dzhokhar was a child, he wore the wrong color pants to school and was sent home for it. On April 15, 2013, he brought the wrong color backpack to the Boston Marathon. And it is time for you the jury to send him home for it.” Beautiful!

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