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Boston Bombing Defense Strategy: Plant Seeds Now

Normally, a defense attorney's strategy is to claim his client didn't do it. But extraordinary cases call for extraordinary measures. On day one of the trial of Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, the defense conceded that Tsarnaev helped plant the bomb that killed three and injured over 260 back in 2013.

From the very beginning, though, the Tsarnaev team's strategy has been to look ahead to the sentencing phase by planting the seeds of that argument here in the guilt phase.

Planting the Seeds

The judge has been clear that evidence about what a great guy Tsarnaev is just isn't admissible at this stage, reported NPR's Tovia Smith on Tuesday. Whether he was a mild-mannered young man led astray by a domineering older brother has no relevance to the fact of his committing the crime, which the defense concedes he did.

But, said Smith, "defense attorneys say they can't afford to wait that long," and as such are "trying to hint at" his good character now, in the hope that it will pay off at sentencing, which is where this case is really going to get started.

A guilty verdict is all but assured; in reality, Tsarnaev's claim that he was influenced by his domineering older brother has little significance. What it does do is go to his degree of moral culpability, making him just a little less bad in the eyes of the jury and less deserving of the death penalty. If defense attorneys can get just one juror to say "no" to a death sentence, then Tsarnaev automatically receives life in prison, instead.

A Double-Edged Sword

In practice, though, trying to sneak evidence in can get dicey. As Smith points out, the prosecution will probably object to the introduction of character evidence at this point, but the defense will keep trying, anyway. The defense has to walk a fine line, though. Evidence that's too character-oriented might be excluded (FRE 403 is a double-edged sword), and if attorneys are too brazen, they could get sanctioned.

Even if the judge doesn't get involved, character evidence is perilous because once the defense "opens the door," the prosecution is free to rebut evidence of the defendant's good character with evidence of the opposite. In some situations, objecting and having something technically stricken from the record -- even though it can't be unheard -- is less effective than keeping quiet and rebutting later.

With such high stakes, Tsarnaev's trial requires a little more stratagem than the standard-issue criminal trial. Assuming the court lets in all the little crumbs of information about what a great guy he is, that investment could add up to a life sentence instead of a death sentence in a few weeks.

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