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The Worst of the Worst [1]

['Condé Nast', 'Patrick Radden Keefe']

Date: 2015-09-14

Had the jury been selected from a representative sampling of Bostonians, there would have been little possibility of a death sentence. But jury selection in death-penalty cases involves a procedure known as “death qualification,” in which prospective jurors are questioned about their views on capital punishment, and anyone who opposes the practice on principle is disqualified. This makes a certain amount of sense, because a death sentence must be unanimous; if a single juror objects from the outset, the whole proceeding might be a waste of time. In Alabama or Oklahoma, where there is broad support for capital punishment, it is easy to death-qualify a panel of jurors. But in Boston a jury that is death-qualified is also demographically anomalous: according to polls taken during the trial, sixty per cent of Americans favored executing Tsarnaev, but only fifteen per cent of Bostonians did.

During jury selection, a middle-aged restaurant manager was asked if she could deliver a death sentence. “I don’t really feel that I’m sentencing someone,” she said. “It’s like at work—I fire people, and I’m asked, ‘How can you do that?’ I’m not the one doing that. They did it. By their actions. Not coming to work, stealing, whatever.” Elisabeth Semel, the Berkeley professor, notes that, with a death-qualified jury, “you are starting out with a jury that is conviction-prone and death-prone, because if they weren’t they wouldn’t be sitting there.” The restaurant manager became the forewoman of the jury.

On a May morning, as gulls hung on the breeze in Boston Harbor, Clarke addressed the jury a final time. She dismissed the idea of Jahar as a radical, arguing that he had been in his brother’s thrall. “If not for Tamerlan,” she said, the attack “would not have happened.” She played video of Jahar putting his backpack behind the Richard family. “He stops at the tree, not at the children,” she insisted, a little lamely. “It does not make it better, but let’s not make his intent worse than it was.” Clarke called Tsarnaev a “kid” and “an adolescent drawn into a passion and belief of his older brother.” In his confession inside the boat, she argued, he was merely parroting the rhetoric of others. “He wrote words that had been introduced to him by his brother.”

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At one point, Clarke nearly conceded the logic of capital punishment. “Dhzokar Tsarnaev is not the worst of the worst,” she said. “That’s what the death penalty is reserved for.” Then again you could argue that if Tsarnaev wasn’t among the worst of the worst Clarke would never have taken the case. And Clarke—who once defended someone who slashed a pregnant woman’s belly and strangled her to death in order to steal the baby from her womb—has devoted her career to the notion that even the very worst should be spared. But she knew that these jurors didn’t oppose the death penalty, so she appealed to their sympathy, repeating the words “us” and “we,” reminding them that they were standing in judgment of one of their own. As her closing neared its crescendo, her normally casual demeanor assumed a frantic urgency, and she gesticulated—pounding her fist, slicing the air—as if she were conducting an orchestra. “Mercy is never earned,” Clarke said. “It’s bestowed.”

Then William Weinreb approached the lectern for a rebuttal. “His brother made him do it,” he said. “That’s the idea they’ve been trying to sell you.” Weinreb observed that Clarke, in her closing statement, had referred to Tamerlan “well over one hundred times.” But Tamerlan was not on trial, and the defense’s evidence had actually revealed that Jahar Tsarnaev was a fortunate child whose family had loved him and given him opportunity. “He moved with his parents from one of the poorest parts of the world to the wealthiest,” Weinreb said. “They were looking for a better life, and they found it.” Weinreb calmly dismantled the social history that Clarke and her colleagues had constructed.

“The murders on Boylston Street were not a youthful indiscretion,” Weinreb said. Clarke had called the killings senseless, “but they made perfect sense to the defendant.” Even Prejean, Weinreb noted, was unpersuasive about Tsarnaev’s sense of remorse. The sentiment he expressed to her was not so different from what he wrote in the boat: it was a pity when innocent people died, even if it was necessary. “That’s a core terrorist belief,” Weinreb said.

Miriam Conrad and David Bruck both fumed and raised objections. Clarke just stared at Weinreb, her chin propped on her left fist, her thumb digging deeper and deeper into her cheek. Earlier, one of Weinreb’s colleagues had cited Emerson: “The only person you are destined to become is the person you decide to be.” Now Weinreb assaulted the belief system upon which Clarke had staked her career. All of us, Weinreb said, should be judged on the basis of our actions. Tsarnaev should be put to death “not because he’s inhuman but because he’s inhumane.”

Before the murderer Gary Gilmore was executed at Utah State Prison in 1976, bullets were distributed to the five-member firing squad; one of them was a blank. This dispersal of moral responsibility is a curious feature of our system of capital punishment: the message is that the state is doing the killing, and therefore no individual is culpable for the death. In lectures, Sister Helen Prejean rebuts this notion by saying, “If you really believe in the death penalty, ask yourself if you’re willing to inject the fatal poison.” In other words, we are all implicated when the state kills.

One common rationale for capital punishment is that it will deter others from committing awful crimes. But there is no evidence that this is the case. (Arthur Koestler once pointed out that when thieves were hanged in the village square other thieves flocked to the execution to pick the pockets of the spectators.) A second justification is that the most violent criminals, even if they are jailed for life, could still endanger others. The government labored to suggest that Tsarnaev might someday be transferred out of seclusion and into the general population at ADX. One defense witness, a former prison warden, observed that, in such an unlikely event, his greatest safety concern would be for Tsarnaev.

The remaining ground for capital punishment is retribution. In a 1957 essay, “Reflections on the Guillotine,” Albert Camus described retaliation as a “pure impulse” that is ingrained in human nature, passed down to us “from the primitive forests.” This does not mean, he argued, that it should be legal. “Law, by definition, cannot obey the same rules as nature. If murder is in the nature of man, the law is not intended to imitate or reproduce that nature. It is intended to correct it.” As Oliver Wendell Holmes put it, retribution is simply “vengeance in disguise.”

Before the jurors began to deliberate, they were issued a questionnaire that asked them to decide whether various “aggravating” and “mitigating” factors had been proved by the government and the defense. Though Judge O’Toole cautioned jurors not to simply tally the check marks and arrive at an answer, the exercise retained an air of sterile arithmetic. Clarke reminded the jury that, however they completed their forms, each of them was making a moral judgment. “This is an individual decision for each of you,” she said. She could not let them think of the jury form the way the restaurant manager thought about errant employees, or the way the firing squad thought about that blank. As Clarke spoke, she looked straight at the forewoman, who glared back at her, arms folded across her chest.

After fourteen hours of deliberation, the jury returned with a death sentence. According to the jury forms, all but three of the jurors believed that, even without the influence of Tamerlan, Jahar would have carried out the attacks on his own. Only two believed that the defendant was remorseful. “Judy would probably say, if the public saw everything she sees, it would look at the client or the case differently,” David Bruck once remarked. But in this instance Clarke had failed to paint a picture of her young client that was moving enough to save him. It may be that she never found the key. During her closing, she said, with frank bewilderment, “If you expect me to have an answer, a simple, clean answer as to how this could happen, I don’t.” Judge O’Toole had warned the jurors not to read anything into the defendant’s manner in court, but Tsarnaev’s inscrutability appears to have hurt him. Most jurors declined to speak with the press, but one of them told the Daily Beast, “My conscience is clear. . . . And I don’t know that he has one.”

Unbeknownst to that juror, and to the public in Boston, Tsarnaev had already expressed remorse for his actions. On June 24th, six weeks after the jury dispersed, Judge O’Toole presided over the formal sentencing of Tsarnaev, and Clarke made a fascinating remark. “There have been comments over time with regard to Mr. Tsarnaev lacking remorse,” she said. “It’s incumbent upon us to let the court know that Mr. Tsarnaev offered to resolve this case without a trial.” Tsarnaev had not simply agreed to plead guilty before the trial, Clarke said; he had written a letter of apology. But it was never shared with the jury, because the government, under the terms of the Special Administrative Measures, had it sealed.

I spoke recently with Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard. “This could have been an immediate plea,” she said. “He was prepared to coöperate with the government. Why go through with it all?” In Gertner’s view, there is “no legal justification” for the secrecy surrounding the proceedings, given that Tsarnaev did not appear to pose an ongoing threat. “The classification was based on a premise that this was an international security issue, which is a little dishonest,” she said. It seemed absurd that prosecutors had suppressed Tsarnaev’s letter of apology on the ground that releasing it could be unsafe. (A spokesperson for the prosecutors declined to comment on why the letter was suppressed.)

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Gertner offered a hypothesis for why the Justice Department was intent on a death sentence: it might relate to the politics of Guantánamo. Supporters of the detention facility have long argued that American federal courts are not equipped to try terrorists. But here was a case in which a civilian federal court could deliver not just a guilty verdict but the death penalty. Numerous people have been convicted of terrorism in civilian courts since September 11th, but Tsarnaev is the first to receive a death sentence. Gertner said that the trial should not have been held in Massachusetts. If relocating was not appropriate in this case, she observed, when would it be? “They’ve essentially eliminated change of venue for anyone in the country,” she said. The whole trial, she concluded, “was theatre, as far as I was concerned.”

A second juror, a twenty-three-year-old named Kevan Fagan, recently spoke to the press. Asked by the radio station WBUR about the Richard family’s letter opposing the death penalty, he said, “If I had known that, I probably—I probably would change my vote.”

Before Judge O’Toole could deliver the death sentence, Clarke said, “Mr. Tsarnaev is prepared to address the court.” He rose, next to her, wearing a dark jacket and a gray button-down shirt. “I would like to begin in the name of Allah, the exalted and glorious, the most gracious, the most merciful,” he said. He spoke in a thick accent that sounded vaguely Middle Eastern. (Before the bombing, he had sounded more conventionally American.) “This is the blessed month of Ramadan, and it is the month of mercy from Allah to his creation, a month to ask forgiveness of Allah,” he continued.

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[1] Url: https://www.newyorker.com/magazine/2015/09/14/the-worst-of-the-worst

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