Important Lessons for Tsarnaev Case Outcome Come From the Past

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Convicted Boston Marathon bomber Dzhokhar Tsarnaev’s family is angry about the way his defense attorney handled his trial.

Convicted Boston Marathon bomber Dzhokhar Tsarnaev’s family is angry about the way his defense attorney handled his trial.

The criticism that some members of Dzhokhar Tsarnaev’s family levied against Judy Clarke, the lead defense attorney for the convicted marathon bomber, may sound familiar to anyone who followed the trial of Unabomber Ted Kaczynski 17 years ago.

Kaczynski believed that Clarke, who also led his defense, put her opposition to capital punishment and her desire to avoid a death sentence for her client above his own interests. Similarly, in the Tsarnaev case, Clarke has pursued a strategy focused exclusively on the penalty phase—and finding a way to secure a life sentence for her client.

But that approach has baffled Tsarnaev’s relatives in Russia. Some have called for Clarke to be replaced immediately. But with no legal mechanism to implement such a change, they can only sputter their outrage in advance of the sentencing of their young relative.

“Why do we even need defense attorneys if they just tell the jury he is guilty? What’s the point?” his aunt, Maret Tsarnaeva, told Time last week.

It is unclear if the Tsarnaev family is even aware of the once infamous Kaczynski case, much less Clarke’s 20-year record of winning life sentences for convicted murderers who faced the death sentence. But the Unabomber’s trial holds important lessons for anyone trying to understand the way Clarke defended  Dzhokhar Tsarnaev.

The trial initially began in fall, 1997; Kaczynski attempted to represent himself. In early 1998, Kaczynski tried to fire Clarke after he discovered that she was going to mount an insanity defense in response to multiple murder charges lodged against him. Federal prosecutors intended to seek the death penalty following any conviction.

Ted Kaczynski believed that Clarke put her opposition to capital punishment and her desire to avoid a death sentence for her client above his interests.

Ted Kaczynski believed that Clarke put her opposition to capital punishment and her desire to avoid a death sentence for her client above his interests.

However, Federal District Court Judge Garland Ellis Burrell Jr. believed that permitting Kaczynski to act as his own counsel could bring chaos to his courtroom and would very likely guarantee appeals on procedural grounds.

To avoid this, Judge Burrell told Clarke that he would only permit the change if Clarke and her team stayed on in support of Kaczynski. But Clarke refused any such deal. As a result, Burrell rejected Kaczynski’s bid for new counsel. Within weeks a despondent Kaczynski pleaded guilty and received a life sentence, but he lost what he wanted most—a platform to further expound his radical, anti-modern ideology.

At first glance, the soundness of Clarke’s approach in the Kaczynski case seems evident—a mad bomber was denied an opportunity to parade his twisted views before a national audience. Yet in the process his life was spared. This was clearly a win-win for both defendant and society.

But it is precisely in light of the Unabomber trial that the Tsarnaev family’s objections to Clarke’s defense strategy gain credence. Tsarnaev is no Kaczynski—the defense has not sought to brand him as insane. Just the opposite: in one of the few push backs against the prosecution during the guilt phase of the trial, Clarke struck hard at prosecution claims that Tsarnaev’s social media presence showed a focus on global jihad and extremism.

Instead, Clarke and her team sought to portray Dzhokhar as a normal college student, who Tweeted about rap lyrics and Comedy Central shows. In fact, we know nothing first-hand about the defendant’s desires because he has effectively been held incommunicado since his arrest.

But if Dzhokhar was not insane then one can assume his actions, for all their horrific consequences, were intended to convey some message to society at large. After all, what motivates acts of terrorism as opposed to the deeds of ordinary murderers or mad killers?

What would his explanation have been for his and his brother’s actions if he had been allowed to speak for himself? Would he have chosen to proclaim his total innocence? And how would his words have affected the jurors as they decided whether or not to send him to his death ?

Despite the obvious differences between the young Tsarnaev and a brooding hermit who had decades of violence and maladjustment behind him when he went to trial, Clarke has chosen to muzzle the Boston Marathon bomber in the same way that she did the mad Unabomber to save him from the death penalty.

As a result, the sentence soon to be handed down by the jury in Boston may tell us more about Judy Clarke than it does about Dzhokhar Tsarnaev.

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