NOW WHAT?

Jury Must Decide If Tsarnaev Is Evil or Just Brainwashed

The prosecution and defense aren't arguing about his guilt but rather his frame of mind during the Boston bombing.

Lawyers in the trial against Boston Marathon bomber Dzhokhar Tsarnaev presented their closing arguments in Boston’s Federal Court on Monday afternoon. It was an emotional event in the large-scale legal battle surrounding this case.

In most criminal cases, closing arguments mark the end of the trial, a grand finale. Not so with a capital case where the defendant’s attorneys have already admitted it: “It was him.”

Because of that, the guilt phase has been more of a preview of what’s to come in the sentencing phases—the life-and-death fight over the 21-year-old’s life.

Nonetheless, since Tsarnaev still technically pleaded not guilty, the government has had to painstakingly argue its points. All 30 of them. Bullethole by bullethole. Seventeen of these charges carry the death penalty. The jury will almost certainly find him guilty of most—more likely all—of those counts.

How long it will take them to get to that point is unclear.

Judge George O’Toole Jr. took more than an hour giving the jury instructions. O’Toole’s voice is fairly monotone and Tsarnaev’s courtroom presence is reminiscent of a bored teen, zoning out in fifth period. In isolation, the scene in the court was strangely reminiscent of a scene from Ferris Bueller’s Day Off.

Of course, when you consider the room full of amputees and 8-year-old Martin Richard’s grieving parents the context changes drastically. Their other daughter lost a leg. Their elder son was forced to witness his brother’s mangled body.

RELATED: Backpacks, Bombs, Blood: The Evidence Against Dzhokhar Tsarnaev (Photos)

The government’s closing argument, presented by Aloke Chakravarty, was heart-wrenching. He went over all the tragic details jurors were forced to endure in the month since arguments began, descriptions of burning flesh, video of Tsarnaev with a backpack slung over one shoulder a few feet away from the Richards family, and the video of the second marathon explosion itself—where, for a brief second, the air is literally thick with blood.

Throughout his argument, Chakravarty returned to the confession Tsarnaev wrote on the inside of a beached boat while he was hiding from police in a Watertown backyard.

“That day they felt they were soldiers. They were the Mujahideen and they were bringing their battle to Boston,” Chakravarty said. He used the note to underline his main point, that the two brothers operated as an equal pair.

It’s possible the jury may find Tsarnaev innocent of some of the conspiracy charges, or perhaps the shooting of MBTA officer Richard Donohue, who reports say was most likely struck by a friendly fire bullet.

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If so, it won’t save Tsarnaev from facing the death penalty, but it should give the defense some confidence in the sentencing part of the trial and their ultimate goal—to save his life.

In this phase, lawyers will work to tug at the heartstrings of the 12-person jury. It’s set to become war between the two legal teams’ psychological interpretations of the then-19-year-old in the months leading up to the bombing. The defense will present a mitigating argument: that he was acting under the influence of his older, dominating, and radicalized older brother.

The government will most likely continue to make more or less the argument we’ve already heard: that Tsarnaev radicalized himself. He acted on his “his deepest and truest beliefs,” and he should be punished to the full extent of the law. Which, in this case, is death.

But while the objectives of the two sides may be black and white, there could still be a few surprises. We’ve heard a lot from the government so far, the prosecution took 92 witnesses to the stand. But the defense has taken only three.

They haven’t laid down all of their cards yet.

One thing sentencing should expect is a detailed analysis of Tsarnaev’s life, and a family history. His attorney, Judy Clarke, is famous for presenting detailed and sympathetic narratives of her clients. She’ll be sure to open and examine every one of Tsarnaev’s psychological wounds, and knowing Clarke, the wounds of his grandparents or great-grandparents.

But there could be a few curveballs. In the first part of the trial, the defense has not been able to delve into the life of the defendant’s older brother Tamerlan because technically his potential influence counts as mitigating evidence. Now they will.

There are outstanding mysteries regarding Tamerlan that may not look great for the government. Depending on what Judge O’Toole allows to be argued in court, things could get uncomfortable for the government.

For one, there is an unsolved triple murder that occurred on September 11, 2011. Three drug dealers, one of whom was Tamerlan’s friend, were found in a Waltham, Massachusetts, apartment with their throats slit and marijuana dumped on their bodies.

[Full disclosure: Another one of the murder victims, Erik Weissman, was my friend, too. My father, Norman Zalkind, was his criminal defense attorney for a 2011 drug charge.]

Tamerlan was implicated in the crime in May of 2013, by one of Tamerlan’s associates, Ibragim Todashev. He allegedly told a Boston FBI agent and two Massachusetts state troopers that he was manipulated by Tamerlan in committing the murders in much the same way that the defense says Dzhokar was.

Todashev says he went with Tamerlan to rob the drug dealers, not kill them. Then something went awry.

Something went awry in the interview with Todashev, too. After being questioned in his Orlando apartment for more than five hours, Todashev allegedly got violent right at the moment that he was writing out his confession. The investigators in the room, meanwhile, had been looking at their phones.

An FBI agent then shot Todashev seven times, killing him. The case is still open. And Todashev’s parents are suing the FBI for $30 million for the killing of their son.

Meanwhile, the 2011 murder case is still unsolved.

The government may also have to answer for the FBI’s failure to follow up on a tip about Tamerlan Tsarnaev’s growing radicalism. According to a report from the Inspectors General of the Central Intelligence Agency, the Russian Federal Security Service tipped off the FBI in 2011. The service told the FBI and then the CIA that Tamerlan and his mother were “adherents of radical Islam and that Tamerlan Tsarnaev was preparing to travel to Russia to join unspecified ‘bandit underground groups’ in Dagestan and Chechnya.”

According to the report, the FBI took a surprisingly relaxed approach to the detailed tip.

A Joint Terrorism Task Force officer questioned Tamerlan, but never asked about his travel plans, even though the tip specifically mentioned travel as the next phase in his radicalization. When Tamerlan did travel to Dagestan shortly thereafter, he was never questioned going in or out of the country, even though an electronic alert was sent to the JTTF officer notifying him about his travel both times.

The JTTF officer was not able to recognize Tamerlan from video surveillance taken at the Marathon finish line either.

The agency’s failure to follow up on a detailed tip about Tamerlan’s growing extremism has led some to doubt the FBI’s official account of their interactions with Tamerlan before the April 15, 2013, attack. Most notably, U.S. Senator Chuck Grassley has publicly questioned the bureau. And more recently, journalist Masha Gessen in her book, The Brothers: The Road to an American Tragedy, is wary of the FBI’s official pre-bombing account.

The defense doesn’t appear to share this theory, exactly. But in a pretrial motion, the defense did claim that the JTTF interviewed Tamerlan a second time and, in this interview, asked him to become an informant.

“We further have reason to believe that Tamerlan misinterpreted the visits and discussions with the FBI as pressure and that they amounted to a stressor that increased his paranoia and distress,” the defense wrote in March of last year.

If we are to learn anything about the Tsarnaevs’s interactions with the FBI before the bombing, it will be in this next part of the trial.