The defense succeeded in calling Sister Helen Prejean* to the stand as the last witness for Dzhokhar Tsarnaev. Kent posted about this earlier, wondering what Prejean might have to say that would count as relevant evidence. In fact, she did have relevant evidence; she testified that she has met with Tsarnaev five times, and that he is remorseful.
Evidence of remorse is, in my view, by far the most likely thing to save Tsarnaev from the death penalty, if anything will. But I tend to think that defense counsel's success in getting Prejean on the stand will prove the old adage to beware of what you wish for.
It's not difficult to understand why.
Q: What's the first thing the jurors would ask themselves as Prejean described Tsarnaev's alleged remorse?
A: Why isn't he telling us himself?
It doesn't matter that the judge may instruct that the jurors cannot consider the defendant's silence. It's beyond human capacity not to wonder, when a person blows up a little boy and two other people, creates a dozen amputees, and maims numerous others for life, why that person doesn't say he's sorry -- if he actually is.
I'm not saying that Prejean was coached. She didn't need to be. She knows how the system works. Normally, the defense would call the defendant's psychiatrist to give the "he's remorseful" testimony, but that did not happen this time. I suspect there could be two reasons. One is that mental state mitigation was so far-fetched that calling a shrink would just remind jurors that an insanity defense was not even attempted. The other is that the defense did find a psychiatrist, but he (or they) had concluded that Tsarnaev is, in fact, anything but remorseful, and refused to perjure himself.
That's why you go to a person who has no particular expertise in assessing mental states, but does have an expertise in rote opposition to the death penalty, and in giving opinions for which she knows she will not be held accountable no matter how fanciful they are.
Given the evidence in the case of Tsarnaev's extensive pre-planning, lethal flight from the police, hatred for the Great Satan, and mostly bored and disinterested demeanor in court, I think the question Why isn't he telling us himself? could turn out to be the fulcrum of the jury's decision.
* In the original version of this post, I put the word "Sister" in quotation marks, because if Helen Prejean has any distinctly religious insight, I don't know about it. She's an anti-DP activist, and that's about it. However, because she is formally a nun, I have deleted the quotation marks, while retaining my skepticism.
Recent people called "Pope" have also been anti-DP activists, especially the current "Pope." Just saying.
The Pope, though he is indeed opposed to the death penalty, also speaks out regularly about a wide variety of other issues. Whereas, Prejean is known solely for her anti-capital punishment activism. Having her testify as to Tsarnaev's "remorse" is on a par with having the Death Penalty Information Center's Richard Dieter do the same thing. As usual, Berman tries to change the subject.
I suspect not calling a mitigation psychologist has less to do with perjury than not wanting to subject Tsarnev to evaluation and subsequent testimony by the government's shrink.
So should they be able to call the Pope?? I guess we're plowing new fields in "relevance."
Are you aware of any evidence, beyond this rigged, ex parte, one-sided "interview," that Tsarnaev has any remorse whatever?
And, indeed, why SHOULD he have any remorse? As he explained in the note he wrote in the boat, America had it coming.
Remorse is way over rated, if the jury gives him life it ain't because of "remorse"
Sure. Remorse is overrated. Blowing up little boys must be underrated.
What gets the right rating? Nails? Shrapnel? Lost arms? Lost eyes? What?
According to some studies (Sorry, Kent for citing a "study"), the three factors that are most important to jurors deciding whether to choose the DP or LWOP are (1) how bad they believe the crime was, (2) how dangerous they believe the defendant is, and (3) whether the defendant showed remorse. (Blume, Johnson & Sundby, Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation, 36 HOFSTRA L. Rev. 1035, 1036, n.175 (2008).)
If the study is correct, Tsarnaev is in trouble.
1. It's hard to imagine a more ghastly or intentionally sadistic crime against whoever happens to be standing there.
2. Tsarnaev's trend line is toward dangerousness. Last we heard from him, the United States is an evil country and deserves what he gave it. And he's reasonably smart, strong and young. That is a dangerous person.
3. That he has some charlatan religious figure profess remorse for him is a virtual advertisement that he feels nothing. If he were sorry, he would say so. The jury can't help but know that.
My pope comment was just an effort to poke fun with religious titles in light of Bill's footnote.
On the point of the post, I agree 100% that the Prejean testimony could and should prompt jurors to be more likely to vote for death. If there is true remorse of any measure, Tsarnaev should take the stand and express it. Having Prejean as proxy suggests to me he is mostly just sorry he got caught.
Among the disconcerting realities of this trial is that we cannot see it ourselves in order to take stock first hand as to what Prejean had to say. I hope Grassley keeps pushing for for cameras in federal courtrooms.
Now, any prediction how long the jury will deliberate after closing arguments Wednesday?
"My pope comment was just an effort to poke fun with religious titles in light of Bill's footnote."
No problem there. As I think you know, I view with considerable skepticism any effort by religious leaders to directly influence outcomes in secular legal disputes.
I don't approve of it when the so-called Rev. Al Sharpton does it, I didn't approve of it when the so-called Rev. Jimmy Swaggart did it, and I don't approve of it now.
P.S. I might be nuts at times, but I am never sufficiently nuts to try to predict the length of jury deliberations.