Opening Statement Strategy - Boston Criminal Defense Blog


On March 4, 2015, opening statements were made to the jury in the Dzhokhar Tsarnaev Boston marathon bombing trial.  Although media coverage of the trial in Federal court is not allowed the drama was nevertheless high.  ABC News and the Associated Press reported that Tsarnaev’s attorney made a dramatic move in her opening statement and stated her client did the act.

Defense attorney Judy Clarke told jurors “It was him”. She told the jury that the accused bomber will not sidestep any of his actions.  Tsarnaev carried one of the pressure cooker bombs on April 15, 2013, and placed it near the finish line, she told the jury. He was there when a police officer was killed. He was involved in a shootout with police.

After months of trying to seat an impartial jury, and in the face of overwhelming evidence against Tsarnaev, instead of denying the allegations, his lawyer admitted the obvious in her opening statement that her client is guilty.  Some may ask why then continue with the trial.  Although this opening may muddle the issues, do not forget the simple fact that Tsarnaev has not pleaded guilty despite what his attorney has said in her opening. The opening statement reveals a questionable strategy as to why this trial will continue.

The defense will argue that Tsarnaev’s brother was the driving force behind the bombings and it was the brother who enlisted the younger Tsarnaev’s help.  It is apparent that the defense strategy in this case is to shift the focus of the trial to the penalty phase so as to try and win sympathy for their client and hopefully avoid the death penalty.  The penalty phase however, is a separate trial.  If Tsarnaev avoids the death sentence for this horrific crime, then some will say that the defense has done its job.

This strategy however is a dangerous defense tactic and may end up being a tactical miscalculation.  The admission by the defense that Tsarnaev did the acts, still forces the government to prove its case. Despite what was said in the opening, there is no guilty plea from Tsarnaev. What this means is Tsarnaev is still entitled to a trial which will put the the victims through the anguish of having to relive this event at trial.  What the defense has not said in its opening, in this writer’s opinion, is the real miscalculation.  They have not said that Tsarnaev has accepted responsibility for his acts and is contrite and sorry for what he has done.

Under federal law there is a theory of acceptance of responsibility which is credited to a defendant upon sentencing which might help Tsarnaev avoid the death sentence.  If the defendant clearly demonstrates acceptance of responsibility for his offense, the court will decrease the offense level according to Federal Sentencing Guidelines.  Tsarnaev has not accepted responsibility.  A true acceptance of responsibility would have the effect of assisting authorities in the investigation or prosecution of Tsarnaev’s own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.  This defense strategy will have the opposite effect of re-victimizing the victims which will not benefit Tsarnaev.

In the Boston marathon bombings, three people were killed and more than 260 hurt when two shrapnel-packed pressure-cooker bombs exploded near the finish line on April 15, 2013. Tsarnaev, then 19, was accused of carrying out the attacks with 26-year-old Tamerlan, who was killed in a shootout and getaway attempt days later.

Authorities contend the brothers — ethnic Chechens who arrived from Russia more than a decade ago — were driven by anger over U.S. wars in Muslim lands. The brothers immigrated to the United States as refugees in 2002 and were granted asylum in the United States. Tamerlan was an aspiring boxer and Dzhokhar was a student at University of Massachusetts Dartmouth who became a naturalized U.S. citizen on September 11, 2012, seven months before the bombings.

Based on their opening statements, both the defense and the prosecution agree on the basic facts surrounding who did the bombings and how they were carried out.  They differ as to why Dzhokhar Tsarnaev carried out the attacks.

Federal prosecutors used their opening statement, along with heartbreaking testimony and grisly video, to sketch a picture of torn-off limbs, ghastly screams, pools of blood, and the smell of sulfur and burned hair in the streets of Boston. U.S. prosecutor Bill Weinreb told jurors that the Tsarnaev is a cold-blooded killer.  The prosecution’s theory of their case is that it was the goal of the Tsarnaev brothers to kill as many people as possible.

The opening statement in any trial is the first occasion that the lawyers have to introduce themselves to the jury and are used to give the jury “road map” of what they may expect to hear from the witness stand and their theory of the case.  Typically, defense counsel will generally conclude an opening statement with a reminder that at the conclusion of all the evidence, he will address the jury again but this time ask them to find his client not guilty.   The Tsarnaev trial, however, deviated from the traditional opening since the defense attorney conceded that her client committed the attacks, without the defendant himself pleading guilty.

With its opening statement, the defense has outlined its case strategy or theory, that Tsarnaev, although admitting that he committed the attacks, is trying this case to point out that he also has redeemable qualities and should not be put to death.  It will be argued that Tsarnaev followed the lead of his overbearing and influential older brother, and although complicit in the bombings and murders, should be spared the death sentence. The trial will focus on not whether Tsarnaev committed the act of setting off the pressure cooker bombs, but why he did the act and what influenced him to do it.   The defense is gambling that the jury’s real roll as fact-finders of the evidence will focus on whether Tsarnaev should spend the rest of his life in jail or be put to death, and not whether he is guilty or innocent. The defense may also want to continue with a trial if it believes that no matter what they do their client will be found guilty and then sentenced to death, so they want to create a trial record that can be appealed for decades.

Defense attorneys know that opening statements are not supposed to be argumentative but rather should be restricted to stating the evidence.  The opportunity for counsel to try and to persuade the jury is at the end of the trial with what is known as their closing statements, after the jury has heard all the evidence.  Closing arguments are an opportunity for counsel to persuade the jury to adopt an interpretation of the facts favorable to their position.

Tsarnaev has admitted through his attorney that he is guilty of murder for his horrific crimes but still wants the government to prove its case.  His actions resulted in multiple killings and the maiming over 260 people.  The defense wants this trial to decide what role Tsarnaev played in the attack, and whether he should be sentenced to death.  If Tsarnaev wanted to avoid the death sentence, he should not force the victims to relive the horrors that they had to endure with a trial but rather should plead guilty, face his victims with true remorse, repent and impress upon the jury the need to avoid sin and crime if he truly didn’t know what he was doing in an attempt to atone for his acts in mitigation of punishment.

The prosecution on the other hand, will clearly point out Tsarnaev’s betrayal to the United States.  That he believed that the United States is an enemy of Islam.  The prosecution has stated that Tsarnaev’s motive for the attacks can be found in the boat that ultimately became Tsarnaev’s hideout before his arrest and revealed his radical Islamic views; “I can’t stand to see such evil go unpunished”.  “We Muslims are one body, you hurt one, you hurt us all;” “Now I don’t like killing innocent people it is forbidden in Islam but due to said (unintellifible) it is allowed;” and “Stop killing our innocent people and we will stop.”  From the prosecution’s viewpoint Tsarnaev is a holy warrior committed to violence and should not be spared.

The prosecution will point out during the sentencing phase of this trial, that Tsarnaev is a savvy criminal defendant who is not really remorseful but rather proficient in saying the right things in order to avoid the death sentence and will caution the jury not to be susceptible.

Boston Criminal Attorney Steven J. Topazio

Boston Criminal Attorney Steven J. Topazio

Steven Topazio has been a criminal defense attorney for over 29 years and represents the wrongfully accused throughout Boston and Massachusetts. He is rated AV Preeminent by Martindale-Hubbell, 10.0 Superb by AVVO, a Top 100 Trial Attorney and holds membership in the invite-only American Society of Legal Advocates.

If you have been charged with a crime, contact Attorney Steven J Topazio. He believes everyone is entitled to the Best Defense and is prepared to investigate every aspect of the allegations and circumstances of your case in order to build an aggressive defense.

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