The essence of the adversarial process, which lies at the heart of the American justice system, is this: Each side makes its best case, using the evidence that bolsters it and challenging any evidence that doesn’t; the jury weighs what it has seen and decides which side was more convincing; and then justice triumphs.
Judges like to compare lawyers’ opening statements to the picture on a jigsaw-puzzle box – except the two sides show the jury two different pictures, then throw down lots of pieces. The jury has to decide which one of the two pictures the pieces combine to resemble. Except that it’s not a great analogy. Strictly speaking, the defense doesn’t have to present its own picture – it needs only to show that the picture presented by the prosecution is wrong. And sometimes it doesn’t even want to do that.
For Dzhokhar Tsarnaev’s defense to succeed in the Boston Marathon bombing trial, it needs to turn the adversarial process into a non-adversarial one. The government has been painting, masterfully, a picture of profound loss and pain. The defense wants the jury to perceive Tsarnaev as part of that tragedy – a victim, despite being one of the perpetrators. To this end, the defense has declined to cross-examine any of the bombing victims, relatives of victims, first responders, or even FBI agents who testified about the investigation.
The mood in the courtroom has gone, at times, beyond sad and somber, and the defense can’t risk breaking with this mood for even a second.
But this strategy puts the defense at the mercy of the prosecution. In a more conventional criminal trial, the sides constantly test the limits of the rules of what the judge will allow as evidence, and it is the other side’s job to raise objections that repeatedly require the judge to delineate the limits of the conversation. In the Boston bombing case, the prosecution’s witnesses sometimes take their stories in a direction that makes it particularly difficult for the jury to see Tsarnaev as a victim. On the second day of testimony, two different police officer witnesses, for example, mentioned Iraq.
Boston Police officer Lauren Woods told of first administering first aid to a young woman named Lingzi Lu and then staying with her body on Boylston Street after she died. She explained that she wanted to protect the body in case there was a third blast – and she wanted to make sure the victim’s face was preserved if that happened. The reason, she said, was that her own cousin was killed in Iraq and she had never seen him after he died. Suddenly, Officer Woods, who had worn her dark-blue uniform to court, was transformed into a soldier in a battlefield, protecting the body of a fallen comrade. The defense stayed silent.
Only when the jury was out of the courtroom did defense attorney David Bruck address Judge George O’Toole. “This is particularly prejudicial in a case involving a Muslim immigrant defendant,” he said. “It will make it very difficult for the jury to abide by the statutory requirement of the Federal Death Penalty Act, which requires that the jury sentence without regard for religion or national origin.”
In other words, once the government recasts the bombing in terms of a war between the United States and radical Islam – which would be consistent with the picture painted by the prosecution in its opening statement – Tsarnaev has no hope of avoiding the death penalty.
“It is impossible to object to this in the presence of the jury without increasing the prejudice even further,” said Bruck. “It creates ‘us’ and ‘them.’”
The judge agreed. “I don’t want to hear the word ‘Iraq’ or ‘Afghanistan’ without prior warning,” he said and instructed the government to counsel its witnesses accordingly.