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Will we ever know why Dzhokhar Tsarnaev spoke after it was too late?

By Nancy Gertner | The Boston Globe | June 30, 2015

The government focused on the claim that Boston Marathon bomber Dzhokhar Tsarnaev did not show remorse for his heinous, unimaginable crime until last week’s sentencing proceeding. That, counsel suggested, was too little, too late. Why was Tsarnaev silent during the penalty phase, when his life was on the line, only to speak after the jury chose death, when it no longer mattered? The sealed docket entries, the arguments of counsel, the documents that have been kept from the public, may hold the clue.

The defense reported that there was a 2013 letter from Tsarnaev, written just months after the bombing, about which the government knew. It suggested that letter did demonstrate remorse, and further, that Tsarnaev went so far as to offer to cooperate with the government. The letter was sealed under the government’s Special Administrative Measures. SAMs, as these measures are called, were put in place to block a defendant’s communications with the outside world, even if those communications contained an apology, had evidentiary value, and — in this case — may have served to dissuade others from following Tsarnaev’s lead. What did he say then? What was the context?

As a judge for nearly two decades, I saw many – indeed, most – defendants express remorse in all sorts of cases. They did so not out of any genuine feeling, but because their counsel told them to, because they figured it would benefit them at sentencing. Their remarks were often canned; some read from a script drafted by others. There was even a category for it under the Federal Sentencing Guidelines called “acceptance of responsibility,” which entitled the defendant to a reduction in his sentence. But while the rationale for the “acceptance rule” was to enable credit for a genuine show of remorse, over time it meant nothing more than pleading guilty, saving the court the time to try the case, or cooperating with the government. The ceremony had been emptied of all moral meaning. Indeed, the most remorseful of all were those cooperating with the government. But their remorse had a payoff — a lesser sentence.

A death penalty proceeding is dramatically different. Remorse is a critical element of the penalty phase, one of the factors that a jury is to expressly consider in drawing the line between death and life. So why didn’t Tsarnaev take the opportunity to speak at that time? Clearly the jury (and the public) was waiting to hear from him. There is a simple answer: Had Tsarnaev testified in the penalty phase, he could have been cross examined under oath about a wide range of issues — his brother, his political beliefs, his religion.

In contrast, at sentencing, the right of allocution allowed him to speak in a narrative, to say whatever he wanted to say — unsworn and unchallenged. But that simple answer isn’t sufficient without an understanding of evidence Tsarnaev would have been allowed to present, notwithstanding the SAMs and the scope of the government’s cross examination. How far would the court permit the government to go in examining Tsarnaev? Would that cross examination enable the government to raise every single inflammatory issue it could find, not cabined by the evidentiary rules, to play even more directly on the jury’s prejudices? Given the court’s rulings throughout the trial, the defense could well have feared a wide-open attack, with the limitations of the SAMs preventing a meaningful rejoinder about who Tsarnaev was and is.

So do we really know how remorseful he was? What did he say in communications that the government has sought to silence? What were the court’s rulings that prompted counsel to choose not to put him on the stand in the penalty phase? And why did he choose to speak when it did not matter, and not when it did? In the final analysis, would this jury — selected as it was and when it was, in the city that was one of the victims — have been satisfied?

This piece was originally published in The Boston Globe.

Nancy Gertner is a retired federal judge, a professor at Harvard Law School, and a CLBB Faculty Member.