There is one person we often don't hear from in death penalty cases: the killer.
The Fifth Amendment of course shields the killer, and every defendant, from having to take the stand in either the guilt or penalty phases of his trial. So there is no means of forcing him to say anything; that is as the Framers intended.
Still, wouldn't it improve both the system as a whole and the prospects for justice in the individual case in we could hear from the most important person in the courtroom? The one whose silence is at the center of the case?
I tend to think so. Thus I make the following suggestion should the jury return a recommendation of death for Dzhokhar Tsarnaev.
In federal court, where Tsarnaev is being tried, the jury can recommend life or death. The judge must impose a life sentence if that is what the jury chooses, but can either accept or override a jury decision for death.
My scenario assumes (and it's just an assumption) that the jury will recommend death and that the judge will be inclined to agree, while reserving final judgment until after the defense has had its full allocution at the subsequent hearing in which the sentence is actualy handed down.
My guess is that Tsarnaev will say nothing at that hearing either; everything I've seen from the defense tells me that both the lawyers and the accused think it wisest if Tsarnaev keeps his mouth shut.
I propose that the judge start his pronouncement of sentence roughly like this:
Mr. Tsarnaev, the jury has recommended a death sentence, and, after very carefully considering all the evidence and pleadings in this case, including everything that has been offered today, I am sentencing you to death. I have handed the clerk an envelope containing my written memorandum and order to that effect.Nonetheless, and while nothing in the law requires me to do this, I am willing to reconsider if you care to come to the podium and offer any reasons that I should do so. Any statement you make will not be held against you; as I say, I have already lodged your death sentence with the clerk. Any statement you make can only be to your benefit.Your very capable attorneys have conceded that you committed the crimes for which you are being sentenced, and the evidence overwhelmingly supports that concession. Nonetheless, there might be some reason you know about that I should consider in mitigation. If there is, I encourage you to tell me. I want to hear your side should you choose to give it. You have no obligation to say anything; the Constitution assures that. But if there is something you want to say, now is the time. If you want it, the podium is yours.
Tsarnaev probably won't say anything anyway. I suspect that what's really going on with him is the same hatred of the Great Satan that was in him when he cheerfully blew apart his victims, then scribbled his Jihadist screed on the inside of the boat where he was hiding from the police.
But I don't know. There's a big hole in the country's knowledge about what Tsarnaev really thinks. I'm curious if readers believe my suggestion to try to find out is doable.
I'm thinking that if anything of value (in terms of saving his worthless life) was likely to be within the defendant's ability or desire to articulate, the defense would already have tried that. So, aside from the entertainment factor of seeing the sullen young Mr Tsarnaev validate the DP, I doubt this would happen, although I see nothing that would prevent the judge from offering it as an option. But probably all that we might hear is some irritating anti-U. S. screed, so, in the end, why bother?
On reflection, though, as I type this, I think that the defense witness list seems to have included everyone but the Cookie Monster and Dr Phil, so why not?
It drives me a little nuts that, in case after case, the defendant -- the central actor -- says not one word. Zero. Zip.
I understand that defendants have an absolute (and, in a civilized country, a valuable) right not to speak, but I really am curious as to what Cute Little Dzhokhar would say.
There's a minimal chance he'd do something he has yet to do -- express remorse. I agree, however, that the greater chance is that what we'd hear is an anti-American screed.
To my way of thinking, that's a good thing, because it would show the world what this guy is actually all about. Many of his defenders have been saying it was all his brother. If he cuts loose in vastly changed circumstances more than two years after his brother departed this earth, we'll know that's a lie.
"I am willing to reconsider if you care to come to the podium and offer any reasons that I should do so."
I cannot imagine any judge being able to utter those words with a straight face following a death verdict in this case.