Thursday, March 5, 2015


Opening statements were given in the Boston Marathon bombing trial yesterday. Dzhokhar Tsarnaev is facing the death penalty if convicted. And because conviction is all but certain, the end game is about the penalty.

Judy Clarke is Dzhokhar's lead defense attorney. Her 20-minute opening statement in the guilt/innocence phase is an eloquent lesson in credibility. From the NYT account,
“It was him,” the lawyer, Judy Clarke, said bluntly of her client, who sat slouched in a chair at the defense table. She added that Mr. Tsarnaev, 21, would not sidestep responsibility for his actions, which she described as “inexcusable.”
          * * * *
Ms. Clarke’s blunt, even surprising admission about her client’s actions seemed to be an effort to telegraph to the jurors that she would not waste their time with falsehoods, in part to earn their trust.
Making this strategic admission allowed the defense to lay the groundwork for the mitigation in second stage, primarily that he followed the extreme radical ideas of his deceased older brother. Clarke went so far as to ask the jurors to keep an open mind in second stage when considering the sentence.

Such restraint is difficult. This recalls the trial lawyer's adage that the best cross examination is, "No questions, Your Honor" (which is also what the Tsarnaev defense did for many of the government witnesses). It goes against our grain to quietly, or affirmatively, concede damaging facts.

Effective advocates know the end game and develop a strategy to get there. This means identifying the facts beyond change and building a credible defense that accommodates those facts. And that is what the Tsarnaev defense has done brilliantly.

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