Why would she do this?  What does it mean and what will happen during the trial?

After over 30 years in courtrooms, I can tell you: here are 4 things to watch for as the trial unfolds.

1.  Mr. Tsarnaev is guilty.  The evidence as reported by the media is overwhelming.  Why would the defense lawyer admit this without forcing the government to bring evidence to prove her client guilty?  Since there is no defense to his guilt about committing the crime, the only chance he has would be if the government made a technical mistake or a critical witness died—even then the prosecutor may be allowed to introduce statements by the witnesses anyway.  You will see Tsarnaev’s lawyer, instead, asking questions about his older brother and the control the older brother had over Dzhokhar in order to get him to go along with the bombing.

2.  How can Dzhokhar Tsarnaev be charged with the crime?  I don’t think there’s any evidence that he blew up the bomb—instead his older brother did that.  So, how can Dzhokhar be charged?  Because of a statute that almost all jurisdictions use: the “aiding and abetting” statute.  Fancy words that mean if a person participates with another to commit a crime, both can be found guilty of being the Boston Bomber—even if Dzhokhar played a small or minor role.  This is kind of like being a kid accused of stealing the cookies with his sister.  If the sister did everything wrong but you helped her reach the cookie jar on the top shelf, you’re both guilty of the same thing.  You’ll see the prosecution hammer away at this point.  Even if the brother master-minded everything, Dzhokhar participated and is, therefore, guilty of murder.

Courtesy of digitalart at FreeDigitalPhotos.net

3.  Then, why is the defense lawyer trying to get into evidence about the older bother’s influence?  She’s probably trying to get the jury to make a distinction between the two bothers—in the hopes they will not decide on the death penalty.  Instead, they would give her client life imprisonment for being one of the Boston Bombers who played a minor role, essentially “forced” by the older brother.

4.  Will the judge allow this process?  It’s going to be tough for Ms. Clarke.  Technically, any evidence of the bother’s influence would be left for a sentencing hearing.  The purpose of the trial is to determine if Dzhokhar is proven guilty beyond a reasonable doubt—which his lawyer’s already admitted.  The judge may restrict the defense from any evidence about the older brother.

Do you think the defense strategy is wise?

The post 4 Things to Watch for in the Boston Bomber Trial appeared first on Colin T. Nelson.

Here is a peek at the possible defense:

1.  How can the prosecutors distinguish exactly what Dzhokhar Tsarnaev did instead of what the brother did?  What if the older brother (Dzhokhar was 19 and Tamerlin was 26) masterminded everything and actually set-off the bomb?  How could Dzhokhar be held responsible?  Under both federal and state law there’s a legal principle called “aiding and abetting,” or liability for the crimes of another person.  Dzhokhar can be charged with the crimes even it his brother was the Boston Bomber and did the dirty work.

2.  How can the prosecutors prove that Dzhokhar Tsarnaev liable for the crimes of his brother?  The laws generally read something like this:

Liability for crimes of another.  A person is criminally liable for a crime committed by another if the person intentionally

aids, advises, hires, counsels, or conspires with the other to commit the crime.

Courtesy of digitalart at FreeDigitalPhotos.net

The prosecutors have to prove two things:  The crime of blowing up the bomb and injuring/killing people happened and that Dzhokhar Tsarnaev participated or helped do that in some fashion.  The courts have interpreted this participation to be any degree—even a very small bit of help.  Even if Dzhokhar drove the get-away SUV and nothing else, he could be convicted of the full crimes.

3.  What’s the defense going to be?  Dzhokhar’s lawyers have not revealed much, but they’ve asked the court for more time to have a defense expert study the control and influence Dzhokhar’s older brother, Tamerlin, exerted over Dzhokhar.  What would this mean?

It’s possible the defense team is going to rely on something called “duress.”  Federal law says: duress excuses criminal conduct when the actor is under unlawful threat of imminent death or great bodily harm, which threat caused him to act.

4.  How would that work in the trial?  The defense would have to prove that Dzhokhar was so much under the influence of his older brother that Dzhokhar acted.  But it has to be a threat from Tamerlin against Dzhokhar or another family member that’s immediate and deadly.  They must show that Dzhokhar had no other choices but to go along with the brother.

5.  How about a defense like “brainwashing??”  The defense has said the “family dynamic” is the key to the defense.  I don’t know what this means because there’s no defense of “brainwashing.”  Many of you know about the “Stockholm syndrome” where kidnapped people commit crimes because they’ve fallen under the control of the kidnappers—but that’s not the case here.

As the trial unfolds, we’ll see what the defense comes up with and I’ll comment more.

The post Boston Bomber–A Peek at the Defense appeared first on Colin T. Nelson.

Here are 5 things to watch for as the trial progresses;

1.  Dshokhar Tsarnaev is in a boat-load of trouble–of course!!  But most defendants who are charged with crimes face one or two counts in a criminal proceeding.  He faces 30 charges including detonating a weapon of mass destruction.  That means he must defend against each and every count.  Even a conviction on one or a few of the charges could result in a long prison sentence or death.

2.  He’s guilty.  There’s probably not much question that he’ll be found guilty of some of the 30 charges as the Boston Bomber.  So why have a trial?  The prosecution has stated they will ask for the death penalty.  Even if Dzhokhar Tsarnaev wanted to plead guilty to some of the charges the prosecution won’t agree to allow that.  The only choice the defendant has is to go to trial and hope for the best.

3.  Can he get a fair trial?  The Boston Bomber is accused of committing the largest act of terrorism in the city’s history.  It probably touched everyone in the area. (Perhaps personally)  The defense asked for a “change of venue” (or the location of the trial) which is allowed under federal rules if the defendant can prove to the court he can’t get a fair trial because of publicity, for instance.  The judge denied the defense request.  Depending on what the prospective jurors say during the jury selection process, the trial may still be moved.

(Photo courtesy of digitalart at FreeDigitalPhotos.net)

4.  As a result, it’s going to be a long trial.  The jury selection has already started with 200 prospective jurors—which is about 265 more than usual.

5.  Massachusetts doesn’t have the death penalty—so how could Dzhokhar Tsarnaev face that?  He’s been charged in federal court, which normally also does not have the death penalty.  Except in cases where a weapon of mass destruction/terrorism has been used.  If found guilty of that crime, the accused Boston Bomber could be put to death.  However, that’s also a question the jury will have to decide if they convict him.

More about the trial as it unfolds in later posts:  A peek at the defense.  What will they do to defend a person who looks pretty guilty?

The post Boston Bomber Trial–5 Things to Watch For appeared first on Colin T. Nelson.