Kent has noted
that, on the current uncertain state of the law, prosecutors would be taking a risk if they use Tsarnaev's (presumed) silence as evidence of lack of remorse. I concur. But there's more to this story.
At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand. Now, I have my doubts. The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.
I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse. If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.
And there's the rub. I have seen not a lick of evidence that Tsarnaev actually feels any differently than he did the day of his capture. That afternoon, he scribbled a note to the effect that he was in a Holy War against the United States, and if there was "collateral damage," in the phrase made immortal by his fellow butcher Timothy McVeigh, well......tough.
My guess is that it will depend on defense counsel's assessment whether Tsarnaev can pull it off, and that he won't break out in an anti-American diatribe during cross-examination. Having to make judgments like that is one of many reasons I'm happy I did not become a defense lawyer.