The Death Penalty and Dzhokhar Tsarnaev

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If you follow the penalty phase of the trial of Boston Marathon bomber Dzohkar Tsarnaev which starts next week, you will watch some of the most dedicated and accomplished lawyers in the country demonstrate the bankruptcy of the capital punishment system.

It is as if we turn a question of life and death over to two dueling advertising agencies and rely on them to help us decide.

The annals of death penalty litigation bulge with horrific lawyers. Stephen Bright, director of the Southern Center for Human Rights, recounts stories of prosecutors in exoneration cases who hid evidence, encouraged perjury, or showcased bad forensic science in his essay, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer. As his record shows, we have had drunken defenders, crazy defenders, and defenders who referred to their client as “this little ol’ n****r man.”

Those miserable lawyers are an indictment of the capital punishment system in operation.

The superb opposing legal teams in the Tsarnaev case will provide an indictment of the system in principle. They will prove that an adversary trial can never produce what the Supreme Court says capital punishment depends on: the community’s individualized moral judgment on a particular defendant.

No lawyers can supply what that judgment needs: a full understanding of an individual.

They aren’t even trying. There will be a lot of sophisticated courtroom technique on display in the Tsarnaev courtroom, but the reality is brutally simple. The prosecutors are using their skills to get Tsarnaev killed; the defenders are using theirs to keep him alive.

Everything you (and the jurors) will see is driven by that reality.

A prosecutor feels no pressure to provide an accurate portrait—or any portrait at all—of a capital defendant. The prosecutors’ strategy is to collapse the actor into the act. The details of the life of someone like Tsarnaev just get in the prosecutors’ way.

The prosecutors want to present a silhouette. What sort of person is Tsarnaev? The sort of person who would commit these murders—and leave this nightmare of dead little boys, severed limbs and traumatized survivors behind him. The prosecutors may ridicule the image of Tsarnaev as a helpless follower of his domineering older brother, but they don’t really have to. They succeed if Tsarnaev is reduced to a faceless threat. It doesn’t matter what representation of Tsarnaev the defense offers, so long as the prosecutor can argue that beneath that representation the mysterious murderer abides, and always did.

For the defenders, the situation is different: they are compelled to follow a process that goes by the Orwellian term “humanizing.” In it, the defenders have to commit themselves to a particular version of a human, and convey only that version—as vividly as possible.

But where do they start? With Tsarnaev? How many of us will know ourselves well enough to be of much assistance with that challenge?

Is there any reason to think that Tsarnaev, seeing complex family and cultural dynamics from the inside, and as a child, ever had much understanding of them? Can he share what he does know with his lawyers? Experienced capital defenders are better than you and I at overcoming the barriers of age, class and culture that prevent a capital defendant from sharing everything he knows.

But no relationship in which one partner holds the other’s life in his or her hands is going to be free of the distorting effects of power. All the other raw materials for a portrait—school records, interrogation records—are subject to some degree to the distorting effects of power too. And no capital defendant, no matter how much he likes and trusts his lawyers, can be anything but panicked by the possibilities that an ill-chosen disclosure may bring down on him.

The defenders won’t lie or make things up, but they will leave things out. That is because before they put anything in, they must go through a harrowing analysis of whether some trivial fact they introduce will get their client killed, in full knowledge that their analysis can be imperfect. No one can know for certain how a given juror—and maybe the crucial juror—will react to any fact.

Will Juror Number Four see Tsarnaev’s calm at the counsel table as evidence of sociopathy, or as a lost teenager’s terrified shutdown?

Assembling a mosaic to portray a capital defendant is like handling nitroglycerine.

The relationship between a death penalty defendant and the lawyers’ adversarial copies of him will never be transparent. The process just doesn’t allow for it. This is a structural fact, not a lawyers’ performance issue.

At the end of the trial the jurors will be forced to vote on the fate of a portrait—on the life or death of the courtroom effigy that substitutes for the defendant.

But if the jurors vote for death and there has to be an execution, then the effigy will not suffice, and an actual human, not the “humanized” courtroom construction, will be strapped to the gurney.

The prisoner who is executed will be a stranger to the jurors who condemned him.

James Doyle, a Boston author and defense lawyer who has represented death row inmates in post-conviction proceedings, was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

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