The Government's Motion to Bar Sister Helen Prejean's Testimony
by Margo Schulter
One of the recently released documents from the trial of Dzhokhar Tsarnaev that reveals the Government's strategy for killing him is the prosecution's motion to bar Sister Helen Prejean from testifying on his behalf in the penalty phase of the trial.
As it happened, she was nevertheless permitted to testify, and shared with the jury her own experiences of talking with Dzhokhar and seeing evidence of genuine empathy for the suffering of those killed or wounded in the Boston Marathon bombings on 15 April 2013, and of remorse for his role in these acts.
However, the Government's strategy, as revealed in its motion, succeeded on a larger issue: preventing Dzhokhar from using what is termed the "right of allocution," or of addressing the authority that is determining ones sentence after a criminal conviction, in order to express repentance and remorse or to ask for mercy.
Here Dzhokhar's sentence of death or life without parole (LWOP) at his trial may have depended on his ability to address the actual body deciding the sentence: the 12 members of the jury, who at the end of the penalty phase would make the decision between death and LWOP. A quirk in the Federal Rules of Criminal Procedure, Rule 32, may have made all the difference at trial, and be an important issue on appeal.
Under Rule 32, the defendant has the right to "allocute" or address the sentencer in a federal criminal case before sentence is passed. In all noncapital federal criminal cases, that sentencer is the trial judge, who thus has an opportunity to hear any expression of remorse or plea for mercy by the defendant before imposing sentence. While it is an open question how often such an allocution actually influences the judge's sentence, which generally is imposed according to sentencing guidelines based on the jury's findings and the limited discretion of the judge, there is at least a possibility that what the prisoner says might make a difference.
The right of allocution in federal and some state criminal trials in the USA goes back to English practice, where the prisoner was given an opportunity to raise any reason why sentence should not be passed. In the old English practice, and also generally in state as well as federal noncapital criminal trials in the USA, it is the trial judge who imposes sentence, whether after a jury's guilty verdict, the judge's own verdict of conviction when a bench trial takes place after a jury is waived, or a plea of guilty is entered.
However, the federal death penalty creates a strange situation under the interpretation of Rule 32 that prevailed in Judge O'Toole's courtroom: first the jury's verdict of life or death, which the judge cannot change; and only then the allocution -- at sentencing, when it can make no difference to that sentence!
This is like Alice in Wonderland, and certainly so in Dzhokhar's case: first the death sentence from the jury, and then Dzhokhar's moving allocution before Judge O'Toole, who had no discretion to do anything but sentence him to death! This makes the protection of Rule 32 meaningless, unless one subscribes to the logic which Alice confronted: "First the sentence, then the trial (or allocution)."
Of course Dzhokhar did have the option to express his remorse by testifying under oath during the the penalty phase -- if he wished in effect to commit legal suicide! The prosecution, with its ruthless pursuit of the death penalty as coldblooded in its own way as the bombings themselves, would have staged a murderous cross-examination, focusing for example on the most graphic and sickening details of the crime and of the suffering of the victims. The prosecutors were well willing to engage in such a pornography of violence in order to gain their ritual human sacrifice in the name of "anti-terrorism", making a mockery of their expressed sentiments of consideration for the victims.
The Federal District of Hawai`i, a jurisdiction where the state death penalty has been abolished since 1957 (before it became a State in 1959), follows a saner interpretation of Rule 32. Since the jury decides the sentence in federal capital cases, the defendant has the right of addressing the penalty phase jury to express remorse or ask for an LWOP sentence without the threat of a devastating cross-examination which the prosecution otherwise is likely to be able to put on in the kind of murder or terrorism case apt to involve a possible death sentence.
So far, the federal Circuit Courts that have considered the issue of Rule 32 have not found for a right of allocution to the jury in federal death penalty cases; but the District of Hawai`i has both logic and humanity on its side in holding that if the jury determines life or death, then it is the jury that should be able to hear allocution and make an informed decision. While the reasoning of the Hawai`i District Court is not binding precedent elsewhere, it is persuasive and should be considered throughout the federal system -- until, of course, the barbaric punishment of death is abolished!
The threat of murderous cross-examination is the simple and obvious explanation for why Dzhokhar made his moving statement of repentance, based in good part on his own faith in Islam, only at the sentencing when it could make no difference.
For those of us fighting for Dzhokhar's life, and against a culture of violence that sanctions everything from the death penalty to Islamophobia to "wars of choice" killing hundreds of thousands of innocent civilians whose lives are just as valuable as those of the victims in Boston, understanding and discussing the right-to-allocution issue that may be raised on appeal can be one important aspect of our campaign.