Closing arguments completed today in Tsarnaev penalty phase

After 63 witnesses testified in the penalty phase, Steve Mellin stepped up to the lectern in courtroom 9 this morning, faced the jury and gave the government’s opening closing argument. Judy Clarke gave Jahar Tsarnaev’s closing argument. William Weinreb delivered the government’s rebuttal argument. The jury has retired to the jury room to begin deliberations. No one expects a verdict today.

The government led off, since it has the burden of proving beyond a reasonable doubt that the aggravating evidence sufficiently outweighs the mitigation evidence. If the jury unanimously agrees that the government satisfied its burden, it will sentence Jahar Tsarnaev to death. That means that the sentence will be life without possibility of parole (LWOP), even if 11 jurors agree that the government met its burden, but one does not.

I was surprised that the government doubled down on Jahar Tsarnaev’s middle-finger salute to a video camera to prove absence of remorse while he was waiting in a holding cell for his arraignment. They clearly took it out of context, as became evident when the entire clip was shown. To double down in both closings today really confirmed what I have been saying ever since they got caught. Their objectivity and professionalism was overcome by their blood lust. They should be embarrassed and remorseful, but they aren’t. That makes them hypocrites in my book.

Before Steve Mellin began his argument, Judge O’Toole spent more than an hour reading the instructions aloud to the jury. Important distinctions to keep in mind are:

1) aggravating factors must be proven beyond a reasonable doubt, whereas mitigating factors only need to be proven by a preponderance of the evidence;

2) jurors must unanimously agree that an aggravating factor has been proven beyond a reasonable doubt to consider it in determining the sentence, whereas they do not have to unanimously agree that a mitigating factor has been proven by a preponderance of the evidence;

3) jurors must individually decide how much weight to assign to the aggravating and mitigating evidence;

4) weight cannot be determined by any objective, mathematical or mechanical formula; and

5) since the death penalty is never automatic in any case, a juror can decide that the aggravating evidence does not merit the death penalty, even if there is no mitigation evidence.

For example, despite what he did, Jahar’s friends described him as kind and his aunts and cousins love him. Pursuant to these instructions, a juror could decide that the evidence admitted in aggravation does not sufficiently outweigh the evidence admitted in mitigation and vote to impose a sentence of LWOP. Or a juror could similarly decide that the evidence admitted in aggravation does not sufficiently outweigh Jahar’s father’s mental illness, his mother’s emotional instability and her religious extremism and their abandonment of the family leaving Tamerlan in charge.

You can expect Judy Clarke will focus on all mitigation factors, including his age, immaturity and absence of a criminal a criminal record, as well as the ones I mentioned in my examples in the preceding paragraph.

The following quotes are from the twitter feed by the pool of reporters in court covering the trial.

Steve Mellin began, “There’s so much death and loss and devastation in this case, it’s hard to know where to begin.”

“He killed indiscriminately to make a political statement. His actions have earned him a sentence of death. The defense will ask you to value the defendant’s life, but he did not value the lives of his victims.”

“After causing all this pain and suffering, this defendant went out and bought a gallon of milk. He acted like it was just any other day . . . he didn’t care.”

Regarding what Jahar wrote in the boat, “No remorse, no apology. Those are the words of a terrorist.”

“Remember the river of blood running down the sidewalk.”

“Death and misery is what he sought that day. There is no just punishment other than death.”

“What deserves more weight? What the defendant did or the speculation of what Tamerlan said?”

“Nowhere in that manifesto did he write, my brother made me do it.”

“He made a conscious decision to destroy loving and caring families. The mitigating factors are weightless.”

“All murderers start out as cute children. But sometimes, cute children grow up to be bad people.”

“After all the terror, carnage and fear that he caused, the right punishment is clear. The only sentence that will bring justice to this case is death.”

Judy Clarke began her closing after the lunch break.

“Jahar still had friends [after the bombing]. They said he was loyal, laid-back, funny. Sweet, shy and goofy.” one girl said.

[In the two years Tsarnaev has been in prison], “He’s never tried to influence anybody about his beliefs… never tried to break the rules.”

Over two years in prison, and all the government has on Tsarnaev is the still image of a middle finger. They took the clip entirely out of context..when he was called on it what did he say? I’m sorry. He apologized.”

“What unrepentant … young jihadi is going to meet with a Catholic nun? The picture the government painted of Tsarnaev as unrepentant & unchanged is not true. We ask you to reflect on Sister Helen Prejean’s testimony. It shows the great potential for redemption. Government may tell you he pulled the wool over Sister Helen’s eyes. She’s experienced and wouldn’t lie about what she thinks. He is grown. He is sorry and he is remorseful.”

“You can find one mitigating factor outweighs all aggravating. You can find no mitigating factors and still give life sentence.”

“You have an obligation to hear each other. You have no obligation to vote for death. No one of you has to ever, ever vote for death penalty”

“The law values life and you have no responsibility to vote for death. Each individual is a safe guard” against the death penalty.”

“He will die under bleak conditions, with no fame and no attention, and no glory or stature that martyrdom might bring.”

“Even if you believe that is who [the government says] he is, that is not who we are,”

Life in prison “reflects justice and mercy” and allows for redemption.

“Mercy is never earned but it is bestowed,”

William Weinreb spoke in rebuttal.

“Where is the evidence of brainwashing or mind control? Where is the evidence that he was under his brothers spell?”

“The whole middle finger video was worse than just clip. He was remorseless in court too.”

“Tsarnaev’s friends, relatives, teachers, told you who he was. His crimes tell you who he is.”

“Yes, you know who Tsarnaev was as a child. But you must consider who he became as an adult.”

“Life is the minimum punishment allowed by law for this, does he deserve the minimum punishment for those four deaths?”