Mittwoch, 9. September 2015

Tilting the Scales of Justice Toward Death

Use of SAMs to suppress Jahar's letter of apology calls for reversal!


by  Margo Schulter 


In an article in the New Yorker entitled The Worst of the Worst Patrick Radden Keefe reports that before Dzhokhar "Jahar" Tsarnaev's trial for his alleged role in the Boston Marathon bombings began, he wrote a letter of apology expressing his remorse for the events of April 15-19, 2013, that resulted in the deaths of four people from the bombings themselves, plus the killing of Officer Sean Collier of the Massachusetts Institute of Technology (MIT) police force.

However, the government evidently used Special Administrative Measures (SAMs) to prevent this evidence from being presented to the jury during the penalty phase of the trial, when jurors weighed the choice between the two alternatives before them after convicting Jahar on all counts: either the death penalty, or life imprisonment without possibility of parole.

The suppression of Jahar's letter of apology was unethical, immoral, and also unconstitutional, demanding a swift reversal of the death sentence. The willingness of the government to have a jury impose the irrevocable penalty of death without hearing all of the relevant evidence points to a habit of the national security state: using the excuses of "national security" and "top secret" classifications to reach results contrary to basic respect for human life.

1. The rape of the Lockett: A remorseless quest for death

One basic requirement of the Eighth Amendment prohibition in the U.S.A. against "cruel and unusual punishments" is that no death sentence may be imposed without giving the defendant the opportunity to present any evidence relevant to either the circumstances of the crime or the character and record of the offender. This was the holding in Lockett v. Ohio, 438 U.S. 586, 604-605 (1978), one of the defining cases in constitutional law during the "modern death penalty era" that began after the Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972), overturned all existing state and federal death penalty statutes.

The case of Sandra Lockett involved an 18-year-old woman who drove the getaway car while her partners in crime robbed a store -- and, in an unplanned event, became involved in a struggle with the owner which led to his fatal shooting. Under the "felony-murder rule" inherited from the English common law, and still followed in many States despite much questioning of this doctrine from the 1790's on when applied to unintentional killings and to accomplices like Lockett who were not involved in the actual homicide, she was legally guilty of murder just as surely as if she had fired the fatal shot herself.

In 1978, the issue before the Supreme Court wasn't Ohio's right to find Sandra Lockett guilty of murder under the felony-murder rule, a time-honored doctrine (even if one questioned by such a prestigious group as the American Law Institute in its Model Penal Code). Rather, the case focused only on the question of whether her death sentence for being the getaway car driver in a robbery where she didn't plan or intend that anyone would be killed was "cruel and unusual."

The Court held that it was indeed cruel and unusual, for a reason that would be relevant not only to such felony-murder accomplice cases, but to every capital case tried by States retaining or reinstating the death penalty -- and, ultimately, every federal case tried under a capital drug offenses statute to be enacted in 1988, and the Federal Death Penalty Act of 1994 under which Jahar was tried this year.

The Ohio statute provided for the death penalty for robbery-murders like the one in which Lockett was involved, but allowed very limited scope for any mitigating circumstances that might call for a sentence of less than death. As an 18-year-old offender with some signs of intellectual disability, and one whose role as getaway driver was relatively minor (although, under the felony-murder rule, it made her a murderer in the eyes of the law), she seemed an obvious candidate for mercy.

In the cases of Woodson v. North Carolina, 428 U.S. 280, 304-305 (1976), and also Roberts v. Louisiana, 428 U.S. 325 (1976), the Court had held that mandatory death penalty statutes without room for individualized consideration of mitigation are unconstitutional. It held in Woodson that because a sentence of death differed more from a sentence of life imprisonment than a sentence of 100 years differs from one of only a year or two, a jury or trial judge must consider "the diverse frailties of humankind" in deciding the ultimate question of life or death.

In Lockett, the Ohio statute allowed limited consideration of a few mitigating factors -- but not enough. One of three authorized factors was that "it was unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation." Another was that "the offense was primarily the product of the offender's psychosis or mental deficiency."

Unfortunately, while Lockett might well have come under the influence of her friends in deciding to take part in the robbery, and her intellectual disabilities may have played a part, the evidence was deemed not to satisfy the strict language of the statute. A death sentence was the result.

Confronted with what Justice Thurgood Marshall called in his concurring opinion a "blunderbuss, virtually mandatory approach to imposition of the death penalty for certain crimes," the Court reached a vitally important ruling. In an opinion written by Chief Justice Warren E. Burger, it held that a jury or trial judge in the penalty phase of a capital case must not "be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  Lockett, 438 U.S. at 604.

Clearly, when Jahar's remorse or lack thereof was a major issue in the penalty phase of his trial, a pretrial letter expressing remorse was relevant evidence which the Boston jury could not constitutionally "be precluded from considering." Exclusion of this critically important evidence under the SAMs is an obvious ground for swift reversal of the death sentence -- if not by Judge George O'Toole, who permitted this harmful error, then by the United States Court of Appeals for the First Circuit when it reviews the case.

2. Green v. Georgia: Suppressing mitigation is "cruel and unusual"

The case of Green v. Georgia (1979) involved a Lockett violation that the State of Georgia attempted to justify by invoking state law. The Supreme Court held that such rules of evidence were trumped by a jury's right and need to know under the Eighth Amendment in the penalty phase of a capital case, as applied to the States by the Due Process Clause of the Fourteenth Amendment.

In the case of Roosevelt Green, he and his codefendant Carzell Moore were charged and separately convicted of the rape and murder of Teresa Allen. A major issue, not affecting the guilt of either defendant but critical to Green's jury during the penalty phase, was his claim that Moore had actually killed Allen after sending Green elsewhere on an errand. Green sought to present the testimony of Thomas Pasby, who would attest that Moore had confessed the killing to him.

The State of Georgia, however, excluded this testimony under its hearsay rule -- a classic rule of evidence generally refusing to admit testimony about hearing a statement made by another for the purpose of proving the truth of what was said in the statement. While there are notable exceptions to the hearsay rule, it is an everyday norm in criminal trials generally, and also in the guilt phase of a capital case.

However, the Supreme Court held that when it came to this evidence at the penalty phase of a capital case, "its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment," denying Green "a fair trial on the issue of punishment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial," followed by a citation to Lockett.

The Court noted that although Georgia's hearsay rule might exclude Thomas Pasby's testimony about Moore's confession to the killing, nevertheless the State had no cause to exclude it from Green's penalty phase, since "the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it" at Moore's separate trial for the rape and murder of Allen.

The attempt of the prosecution in the Tsarnaev case to exclude Jahar's pretrial letter of apology expressing remorse for the bombings clearly violates the letter and spirit of the Lockett and Green decisions, so that the death sentence must be reversed.

3. "The Capital Jury and Absolution": The "enemy combatant" myth

In a telling study based on interviews with actual capital jurors who reached a verdict of either death or life without parole in a capital case, Scott E. Sundby examined the theme of "The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty," 83 Cornell Law Review 1557 (1997-1998).

One of Sundby's conclusions was that a guilt-phase defense that denies the defendant's participation in the crime, when the evidence of such participation seems overwhelming, tends to communicate to the jury the impression of an offender who won't take responsibility for their acts. This impression can have a strong effect in the penalty phase, where any attempt to apologize or express remorse for the crime may seem insincere, in view of the jury's perception that the defendant wasn't willing to take any responsibility in the guilt phase.

This situation holding in practice is quite different from the theory of a bifurcated (two-stage) capital trial, where the idea is to have a guilt phase focused entirely on whether the defendant committed the charged offenses; and then, if necessary, a penalty phase to consider all relevant evidence in aggravation (making the crime more serious or blameworthy) or mitigation (involving any aspect of the crime or the offender favoring a sentence of less than death).

In theory, the defendant should be able to present any defense, and have the jury focus during the guilt phase only on the question of guilt -- as opposed to what penalty might be appropriate if the defendant is actually convicted. And the defense would be free to raise any basis for reasonable doubt, without this influencing what happens in the penalty phase if a capital conviction is the verdict.

In practice, however, jurors are already thinking of penalty issues during the guilt phase; and it is thus a winning strategy, unless there is a case for outright acquittal that the defense feels is strong, to present a mitigation-oriented case that does not deny responsibility for the crime, but if possible introduces some of the same themes that will be at the center of the penalty phase case for life.

As Sundby found, and as Jahar's defense team recognized, one good strategy in cases involving more than one participant in the crime (here, as alleged by the government, Jahar and his older brother Tamerlan) is to focus the guilt phase on comparative culpability: the question of who was the "leader," or committed or directed certain acts of violence (e.g. the building of the bombs, the shooting of Officer Collier, or the carjacking of Dun Meng). Presenting Jahar during the guilt phase as his brother's follower, and as the less active or threatening partner in episodes such as that involving Dun Meng, was thus much in keeping with Sundby's insights.

The severe limitations placed by Judge O'Toole on this strategy of comparative responsibility contrasting the roles of the two brothers, with the judge excluding much of the desired evidence from the guilt phase, was thus a decision loading the scales of justice in favor of death. The jurors would put together their stories of the crimes, based on testimony in the guilt phase, without the benefit of learning about Tamerlan's dominant role in the drama.

However, it was the exclusion of Jahar's pretrial letter of apology expressing remorse that may have been the fatal blow for the defense. As Sundby also explains, jurors do not necessarily always take such statements of apology, whether declared by the defendant in live penalty-phase testimony or communicated in a written statement, at full face value. Yet even while maintaining some skepticism about just how thoroughly sorry the defendant they have convicted of murder really is, they find that such statements serve a lifesaving purpose.

That purpose is to show is that the defendant, although maybe not totally repentant, is indeed ready to be held accountable for their misdeeds and to be a peaceful prisoner. It is a counter to the threat of "future dangerousness" that prosecutors sometimes argue directly, but often leave as an implicit consideration where the jury can draw its own conclusions.

In the case of Jahar, were this a more usual murder case, the factors of no previous criminal record or history of violence, and of youth, would themselves constitute powerful mitigation. To overcome these factors, the prosecutor drew on the myth of the "enemy combatant": a dangerous and defiant "terrorist" who might present a threat of "radicalizing others" through an errant note or other writing somehow getting into the wrong hands (perhaps those of the overcurious mass media?), or might at some future point get unwarranted privileges in prison that could somehow bring about a threat to "national security."

The idea of a "defiant terrorist," and of "lack of remorse," were at the center of the penalty phase case for death for someone who committed his crimes at age 19. A letter of apology might have shattered this illusion of demonization: so the SAMs were invoked to exclude it.

Jahar was thus denied justice on the issue of life or death in both phases of the trial: first by excluding evidence of the relative roles of the two brothers at the time that the jurors were forming their narratives or mental "roadmaps" of the crimes that would guide them through the penalty phase; and again by unscrupulously excluding the letter of apology from the penalty phase.

Excluding the letter, at least, was a clear violation of Lockett and Green, showing disregard for the rule of law. The First Circuit should reverse the death sentences on this ground alone, quite apart from other meritorous issues including the error of denying a change of venue in the face of a level of pretrial publicity and impact of the crimes upon the community rarely exceeded in any criminal case.

4. Why didn't Jahar testify? The problem of allocution

Reading Jahar's pretrial letter to the jury would have been one solution to a very serious problem in federal capital trials: the dilemma of what is known as allocution.

Traditionally, "allocution" has meant the right of a criminal defendant, before sentencing, to address the trial judge (who generally imposes the sentence, and whom the law entrusts with any discretion in setting the penalty), and give either any reason why sentence should not be passed, or any reason for showing mercy and mitigating the sentence if the judge is permitted to do so.

Federal Rules of Criminal Procedure, Rule 32, guarantees the right of a criminal defendant to allocution. Normally this right is meaningful: the defendant might express remorse, express a desire to make restitution or seek rehabilitation, or ask the judge to temper justice with mercy. And the judge, in setting the sentence, is in a position to act on what is said at allocution, if it seems warranted.

Technically speaking, Jahar received his right of allocution when he addressed Judge O'Toole at sentencing, and made his much-reported statement apologizing for the bombings, recognizing that the suffering of the victims could never be justified, and seeking reconciliation with God and his victims.

There was only one problem: Judge O'Toole had no discretion to exercise, or mercy to exercise. Under federal law in a capital case, he was strictly bound by the jury's sentence of death, and had no legal choice but to impose that sentence.

In some federal jurisdictions, notably the Federal District of Hawai'i, common sense prevails -- at least to the extent it can while the federal death penalty remains in effect as a cruel, unusual, and inhumane punishment. In Hawai'i, Rule 32 has been interpreted to mean that a capital defendant has the right to allocute (i.e. make a statement expressing remorse or seeking mercy) to the penalty jury, which actually makes the life or death decision, and can act on what is said during allocution. Possibly the fact that the State of Hawai`i is an abolitionist jurisdiction, although subject like Massachusetts to the corrosive moral acid rain of the death penalty, is one factor in this sane federal judicial policy within its borders.

However, no Federal Circuit Court of Appeals, as far as I am aware, has adopted this commonsense rule. Rather, as with Jahar, the right of allocution in a federal capital case is taken as simply the right to make a statement before the judge imposes sentence -- after the jury has already determined what that sentence must be by its penalty verdict for life or death. If I am correct, the First Circuit has not yet decided this question; but a number of other circuits have approved the formalistic and mostly meaningless interpretation that prevailed in Jahar's trial. This does not mean that a federal trial judge is prohibited from allowing allocution to the penalty phase jury, an area where discretion is very broad; but it does mean that there is no right to address the jury, only an option for a judge to grant this possibly livesaving opportunity if so inclined.

Why is a right of allocution to the jury needed in a capital case, when the defendant is always free to testify during the penalty phase and present any mitigating factor? The answer is simple: the threat of cross-examination. Like any witness, a criminal defendant is subject to cross-examination by the prosecution; and in the penalty phase of a capital case, such a cross-examination can be devastating, or quite literally murderous.

For many capital defendants, the threat involves cross-examination as to previous criminal convictions, or as to uncharged allegations of violent acts never brought to trial. The State of California, for example, allows great scope for "other crimes evidence" during the penalty phase, so that prosecutors can ask the jury, which is seeking to weigh aggravation and mitigation, to consider evidence of past crimes which were never charged, very possibly because there wasn't sufficient evidence for conviction. A jury which has always convicted a defendant of murder, however, may be much more ready to find that the defendant committed additional acts swaying the scales toward death. And allegations of violence, as well as actual convictions, can be a fertile ground for cross-examination.

With Jahar, however, with no previous criminal record or history of violence, the prosecution would have had at hand an equally deadly tactic: using cross-examination to focus the jury, once again, on the goriest details of the bombings, and on Jahar's state of mind when allegedly going through various steps of the bombings. The defense wisely decided not to put Jahar on the stand, given this lethal prospect.

As a last resort, having been denied the justice either of allocution to the jury or of having Jahar's pretrial letter read, the defense had Sister Helen Prejean testify as to Jahar's heartfelt expression of remorse. However, the jury may have wondered: "Why don't we hear this in some way from this young man himself?"

As told by veteran capital defense attorney Frederick Leatherman, also known in his web-based commentaries as Masoninblue, reading a letter of apology to a capital jury can indeed be the decisive factor for a verdict of life.

By using the SAMs to stifle this critical presentation of mitigating evidence, the prosecution defied both the Constitution and an elementary sense of justice demanding that a jury deciding life or death should have access to all relevant mitigating evidence.

5. Suppressing voices for life: Another terrorist bombing of civilians

The use of SAMs to keep Jahar's letter of apology from the jurors evaluating his remorse recalls another act of the national security state whose 70th anniversary we mark this year, in connection with another terrorist bombing campaign aimed at civilians.

In July of 1945, Leo Szilard and other nuclear scientists petitioned President Harry S. Truman not to use the atomic bomb against Japanese cities, at least not before disclosing the nature of the new weapon and demonstrating its power. As Szilard himself later concluded, in fact by that point there was no need for even the threat of the new weapon: Japan knew that the war was lost, and would have surrendered until the terms eventually offered after the bombings of Hiroshima and Nagasaki. Those terms included the right of the people of Japan to choose their own mode of governance, and more particularly to maintain the tradition of the Emperor, sacred to many.

The response of civilian and military leaders surrounding the President was to be sure that the troublesome petitions from some of the world's leading physicists and biologists, among other scientists, never reached him -- until the bombs had already been dropped. In a 1945 version of the SAMs, the petitions were also classified, so that they remained unknown to the public for years.

Like the jurors, at least one of whom recently said that they might have reached a different penalty verdict if they had known of the desire of the Richard family for a life sentence, President Truman may have reached his decision on Hiroshima and Nagasaki without fully realizing the implications of his acts.

According to at least one account, President Truman may have sincerely believed that Hiroshima and Nagasaki were in fact "military targets" rather than civilian population centers deliberately chosen in order to demonstrate the power of the atomic bomb to destroy what would be known later, during the Cold War, as "urban-industrial assets." Possibly reading and considering the scientists' petitions, or even inviting Szilard or other spokespeople to consult with him on the nature of the new weapon, might have alerted Truman more clearly to the atrocities he was about to commit.

Of course, the leaders of the national security state in 1945 did not want such an informed decision: they were anxious to use the new weapon, maybe in good part as an example to the Soviet Union not to challenge the hegemony of the U.S.A. in coming years and decades.

Speaking of bombings and apologies, there has not yet been an official apology from the U.S.A. to the people of Hiroshima and Nagasaki. President Truman did not publicly express remorse, however much he may have privately regretted his decision. Whatever his (mis)understanding at the time he authorized the bombings, that decision had resulted by 1950 in 200,000 deaths from the two nuclear attacks. Some victims were killed by heat and blast, like those on Boylston Street but over vastly greater areas; while other died either in the days and weeks after the bombings as a result of acute radiation syndrome, or in the years and decades following as a result of delayed illnesses from exposure to the bomb's gamma rays and neutrons.

Could demonizing Jahar and condemning him to death, with the jury denied knowledge of his letter of apology that might have helped save his life, be a repetition of the same "national security" policy that deprived a President of the full knowledge and appreciation of the acts of nuclear terrorism against civilians he was about to authorize?


  1. My sincere thanks, Margo, for this impactful and expansive article.

    I particularly appreciate that you have illustrated that secrecy on the part of the government has served to influence events, both judicial and otherwise, long before we ever heard of "The Patriot Act" and that the case of Dzhokhar Tsarnaev is certainly far from exceptional as regards the exclusion of mitigating factors in the immoral and obscene pursuit of the death penalty.

    When I read the article published in the "New Yorker", to which you posted a link in your first paragraph, I was struck by Kevan Fagan's admission that had he known of the feelings regarding sentencing expressed by the Richard family, he might not have chosen to approve the death penalty. In the future, if this juror has ocassion to speak with or read the words of those who oppose the death penalty, will he come to regret having approved what amounts to state sponsored murder? All such jurors in all such cases bear responsibilty for the killing of another human being. How heavy does that weigh on the moral conscience? Perhaps for some not at all, but for others I would imagine that weight could be soul destroying and leads me to question also the morality of any government which would place such a potential burden on its' citizens.

    Your third paragraph contains what is undeniably a powerful statement:

    "The suppression of Jahar's letter of apology was unethical, immoral, and also unconstitutional, demanding a swift reversal of the death sentence."

    Anyone with any understanding of the concept of a fair trial, justice, and indeed the constitution would know that this is the absolute truth.

    Thanks also to WB for making this article available to us.

  2. Thank you Margo for an excellent article. I hope that one of the sealed motions makes reference to the unconstitutional behavior of O'Toole in regards to suppressing the apology letter. Also, curious as to any time table for OT to respond to the motion for new trial, etc. as it's heading towards four weeks now.

  3. Dieser Kommentar wurde vom Autor entfernt.

  4. Thank you for your work, Margo. Instructive and insightful.

    What came into my mind when reading is a remark by a lawyer on (forgot his name, it was not David Frank) back in 2013 when it became clear that the prosecution was reluctant with giving their evidence to the defense.

    He wrote something like: "You better don't fiddle around with evidence if you want to bring someone to death". Correspondingly, one could say: "you better don't fiddle around with apologies and mitigating factors if you want to bring someone to death." The death penalty is immoral and obsolete; the US veneer that with a system of special laws, taking care painstakingly that the culprit's rights are not violated before he's killed. So it is even more outraging that in DT' might lose his life by outright cheating (or "tilting").

  5. Who cares if wrote an apology. I sure he would just about do anything to forgo a trial. And the prosecution and gov were under no legal or moral obligation to accept this letter as means to plea agreement. It did not hinder him from presenting a defense. As always, looking for ways to make excuses for this man. A criminal will not always get the outcome they so choose. You take chances when committing crimes. And as such, he was given a huge legal team, the best, and due process. You should be asking his attorneys about why they did to contribute this outcome, not the gov.

    1. I beg to differ on the government's moral obligation. This is a capital case and therefore there is a moral obigation to consider and present to the jury all and any mitigation.

      As has been pointed out elsewhere, even those who believe that the defendant was proven unequivicably guilty should object to the fact that mitigation was withheld. If a plea deal had been reached prior to trial the subsequent and considerable cost to the taxpayer could have been avoided and the victims and their families would have been spared the ordeal of reliving their experiences whilst testfying at that trial.

      If you had followed this case you would be aware of the fact that "due process" was not afforded. This case was brought to trial in less than half the time considered "normal" in a death penalty case. The defense claimed from the onset that they could not and would not be prepared for trial in the time frame allowed. Whatever your opinion or beliefs in this case, you would surely agree that the law has to be applied evenly?

      No one is "making excuses."