4.Opening Statement — Defense

MR. BRUCK: We've now seen more pain and more horror and more grief in this courtroom than any of you would have thought possible. And we have heard from so many survivors who have testified with such courage and such dignity. And it now falls to you to decide what is the best, what is the most appropriate, response, not just to the crime but to the person who is being sentenced for committing it. As you know, there are only two punishments for you to choose from: death and life imprisonment without any possibility of release or parole.

Judge O'Toole has already told you the law never requires you to vote for death. That is different than the first phase of the trial. When you took an oath to well and truly try this case, with respect to the issue of guilt or innocence, that oath meant that when the government proved the defendant's guilt beyond a reasonable doubt as to any count in the Indictment, it was your duty to vote guilty. You were required to vote guilty when the evidence reached the point of proof beyond a reasonable doubt.

But the death penalty doesn't work that way. Whether you vote for death is up to each one of you. The law doesn't tell you what to do. Each one of you has to decide that for yourself and only after you take everything into account.

We are asking you to punish Jahar by imprisoning him for the rest of his life. And for the next few minutes, I'd like to tell you some of the reasons why and about some of the evidence that you will be hearing in this phase of the case. The choice might be easier if you only had to consider the evidence of these awful crimes. But the man who conceived, planned, and led this crime is beyond our power to punish. Only the 19-year-old younger brother who helped is left. So the question of what makes most sense, death or a lifetime of unrelenting punishment, is more complicated than just the crimes themselves.

Now, you've all probably realized by now that no punishment, no punishment, could ever be equal to the terrible effects of these crimes on the innocent people who were killed and hurt or on their families. There is no evening the scales. There's no point in trying to hurt him as he hurt because it can't be done. All we can do, all you can do, is to make the best choice. And if there's one thing to remember through all of this, it is that Jahar will be severely punished either way. Your guilty verdicts have already guaranteed that. One punishment is over quickly, although after more media attention and fame and notoriety. The other will last for years and decades while he is locked away and forgotten.

As you'll soon learn, if you sentence him to life, this is where he will be. Administrative Maximum Facility in Florence, Colorado, also known as ADMAX or ADX. The ADX facility is on the left here. A little more about that later.

But for now, I just want to make the point that this hearing is not about whether to punish Jahar Tsarnaev. It's only about how. No matter what Jahar does now, no matter what regrets he feels, no matter how much he matures, no matter what amends he may wish to make, his last chance came when he was 19, and he will never be given another. We'll bring you evidence about that, and we'll let you see how the government will ensure that Jahar will be securely locked away, safely and securely, where he can never hurt anyone or even be heard from ever again if any of you choose to punish him with life imprisonment.

Now, maybe we could have shown you this and stopped. He goes here and he's forgotten. No more spotlight like the death penalty brings. His legal case will be over for good. And no martyrdom. Just years and years of punishment, day after day, while he grows up to face the lonely struggle of dealing with what he did. And all the while society is protected. That might be -- that should be -- enough to vote for life for Tamerlan Tsarnaev's younger brother. But each of you said that you'd want to know everything about Jahar as well as about the crime before you made this decision. Whether you realized it or not, each of you persuaded Judge O'Toole that you meant it, and that is why you were found to be qualified to sit on this jury. Miss Pellegrini said in her opening statement last week that all you need to know about Jahar Tsarnaev is what he did on Boylston Street because, she said, that's who he is. That's his character. Simple as that. You think about it for a moment what that really means, if it were true, is that Jahar is someone who would have conceived and committed these crimes on his own. And that's the question -- there's the question -- you'll need to answer. Miss Pellegrini said that Tamerlan doesn't matter. He's just an easy target. But if Tamerlan hadn't been in the picture, would Jahar have done this on his own or anything even remotely like it? So we're going to bring you more evidence to help you answer that question.

Now, let me be clear about something. No one is going to claim that Tamerlan forced Jahar to help him commit these terrible crimes. Miss Clarke told you that at the very beginning of this trial. But it bears repeating. When Tamerlan decided that it was time, his little brother went with him. And once he did, he was all in. But the evidence will show that, if Tamerlan hadn't led the way, Jahar would never have done any of this no matter what was on his computer and no matter what kinds of songs he listened to. How do we know that? First, because Tamerlan's motivation to commit this attack was so much stronger and had existed for much longer; secondly, because their personalities were so different; and, third, because Tamerlan had power over Jahar.

Our case is going to start today with some of the people who encountered Tamerlan in the last months before the bombings and can describe a little about what sort of person he was, at least near the end. Now, it's probably going to be hard for some of these people to testify. They may be scared, and they may show it. But they should be able to shed some light.

We'll start at the Islamic Society of Boston, which is a mosque on Prospect Street in Cambridge where Tamerlan used to go. And you'll hear about how, six months before the bombing and four months before the bombing, Tamerlan had come to the point where he had interrupted Friday sermon, the most sacred service of the week, screaming and yelling at the Imam, the minister, in the middle of the ceremony because Tamerlan had got to the point where he was so sure that he knew what was true and everyone else did not that he could take that extreme step. And he did, not once but twice, and you'll hear that described by people who were there.

You'll get a little bit of a picture of what Tamerlan was like on the street, picking fights with people sort of randomly about religion, aggressive, extreme, and walking around dressed in flowing white robes like a Saudi sheikh, not the clothes of the Chechen people, where he originated from, but something very, very different.

You'll learn that about 15 months before the bombing, in January 2012, Tamerlan left his wife and his one-year-old daughter to travel to Russia with plans to go into the forest. That means to join radical jihadi fighters, insurgents there. And relatives who have come here from Russia will describe, with the help of a translator, how fanatical and unreasoning Tamerlan seemed to them when they saw him in 2012 during that visit.

You'll also learn that Tamerlan was a very tough guy, a good boxer, who was suspended from high school for assaulting another student and who was later arrested for assaulting his own girlfriend. Tamerlan turned a lot of people off, as you'll hear, from his angry aggressive preaching. But he also clearly had a kind of magnetism because he was able to pull a young college student from Rhode Island into his gravitational field. And she became his wife, the mother of his child, and took on the role of a conservative Muslim mother and wife, swathed in a traditional head covering, a hijab, and working long hours as a home healthcare aid for people with disabilities while he stayed home and obsessively cruised the internet for scenes of massacred women and children in the Middle East, jihadi warfare in Russia, and fundamentalist preaching about the fires of hell that awaited any Muslim man who did not step up and fight. That was his world. We'll have to reconstruct who Tamerlan was from people who knew him, from FBI reports, and other evidence about his attempts to join the jihadi insurgents in Russia in 2012. And we'll see that he had already been planning to wage jihad in Russia back when Jahar was still a 17-year-old high school senior. Some of the evidence about Tamerlan will come from documents, not witnesses, because the witnesses aren't available. So part of our case is unavoidably going to have to involve reading the important parts of FBI interviews and email. That will not be as gripping as some of the unforgettable testimony that you have heard from the witness stand in the last few weeks. But it will be important because it will shed some light on why Tamerlan set himself and his brother on this terrible course.

In this part of the trial, we'll also be able to show you the rest of what was on Tamerlan's Samsung computer. Remember Mark Spencer, the forensic computer analyst? He will come back and unpack what we were not able to show you at the first part of the trial. The first phase, you were mostly limited to what was on Jahar's computer. In isolation, his computer created the impression that he had "self-radicalized," and that was the way the government presented it. It looked horrible because the computer had documents on it which you could, if you wanted to, sort of match up to the facts of the crime. And so it looked like Jahar was taking his direction directly from things he was getting online or downloading from the internet or wherever, that he was the one, he was the motivating force, that it had started with him. That was the impression that was created because you were not seeing him in context.

But the picture looks very different once you open up Tamerlan's computer and compare because not only was the radical material on Jahar's computer, mostly dumped there by Tamerlan, as you began to hear a little bit of in the first phase of the trial, but because Jahar's radical internet activity was just a faint echo of Tamerlan's. What Tamerlan's computer shows is obsession. He was consumed by jihad. It had become almost all he did and all he thought about.

Comparing Tamerlan's computer to Jahar's leaves no doubt as to where the impulse for the Boston Marathon bombing came from, who drove this plot, and who just followed, not just who bought the parts, not just who built the bombs, not just who led the way, but where the fuel for this came from, the fanatical emotions and ideology that propelled this crime.

We all know that younger brothers tend to look up to older brothers, especially when there is an almost seven-year difference between them. But the evidence here will show that this was especially true here for two reasons: one was the culture into which Tamerlan and Jahar were born and in which they were raised, and the other has to do with their own particular family. So when the older brother went off the rails in this family, there was every reason to expect that he would pull the younger brother with him.

To get oriented, we'll call a historian called Michael Reynolds probably tomorrow. Professor Reynolds teaches at Princeton, and he studies the part of the world where Russia meets the Middle East, the Islamic Southern Caucasus Region of Russia. Let's get oriented. Let's go back out for a minute. This is the map that shows the great distances involved. There's us. There's Chechnya and Dagestan, the South Caucasus, and here, as you'll learn, is where Jahar spent the first six years of his life. And Professor Reynolds will explain the history behind that. This is the country of Kyrgyzstan, which is actually on the border of China. Want to bring it up? Expand.

So here is the region of Southern Russia and Central Asia in which our family's story begins. Professor Reynolds will just give you some background. His testimony is not going to explain why this happened. It's just going to give you some background, some sense, of who this family was, where they came from, what their story is, so that you can have a fuller understanding of who they are, of who Tamerlan is, was, and who Jahar is. Professor Reynolds will tell you who the Chechen people are, a people who have lived independently in the mountains of Southern Russia for thousands of years. He'll tell you a little about their culture. It is a patriarchal culture. He'll explain the reasons why it developed the way it did. Importantly for our story, what that means is that it is a culture in which in each family the father is all powerful, and the eldest brother has tremendous power. And when the father can no longer fulfill his role, the elder brother rules the family.

While he's here, Professor Reynolds will also tell us a little bit about the fate of Chechnya in the modern world. It's a small country, still about only a million people. He'll tell you about what has happened in Chechnya over the last 20 years in the course of two appalling wars, two invasions by Russia, in which countless thousands of people have died, and much of the country has been laid waste. He'll explain that the Chechen wars began as a nationalist uprising, not a religious war at all but just -- by people who wanted to be free of Russia. But after unimaginable death and destruction, violent Islamist jihadis have effectively hijacked the struggling Chechnya so that when a young Chechen overseas goes online to find out about his roots and his origin, what pops up is sophisticated extremist propaganda. You'll see some examples of that.

Professor Reynolds will give you a very small sample of things Tamerlan was doing online. He speaks fluent Russian, by the way, and a great deal of this material is in the Russian language. And that was why we thought it was important to get his help in explaining what was there, what Tamerlan's online world had begun. And we hope that some of this material will give you some little sense of the deadly allure of this stuff. And he'll point you to some of the clues on Tamerlan's computer that shows quite precisely, with recordings of his own voice, what he was thinking and doing in Russia when he was there in 2012.

Now, let me be clear about something. To say that Tamerlan had power over Jahar does not mean that Jahar had no freewill. Jahar could and did try to get around Tamerlan. He hid his own pot smoking from him all the time. Around his own friends, Jahar is somebody who seemed independent and cool or chill. And the government, I'm sure, will point that out before we're done.

But the idea the younger brother follows and supports the older brother is part of who they both were. Culture is what's bred in the bone. And a family like Jahar's, turn your back on your older brother and you are no one. So Jahar did not defy Tamerlan to his face, not ever. And when Tamerlan made a decision, Jahar's role was to support him.

Now, of course, the cultural rules that I've mentioned and the historical experiences apply to a lot of people who never become violent. So we'll need to widen the frame and let you know a little bit about Jahar's family of origin because part of the reason why Tamerlan had such power, why he became so extreme, and why he was left in charge of Jahar when the parents both left for Russia for the last time in mid-2012, has to do with his particular family. It's a long and complicated story, but I'll try to outline the bare bones of it right now for you.

I told you that Jahar was born in Kyrgyzstan, which is a country almost to China. It used to be part of the Soviet Union, very, very far from Chechnya, very far from the North Caucasus. Professor Reynolds will explain, the historical reason for that is that the entire Chechen people were loaded onto cattle cars and deported en masse, in the third week of February 1944, in the middle of World War II, by Joseph Stalin, and dumped in Central Asia, 2,200, 2,400 miles away, a third to a half of the Chechen people died during that, what was one of the great crimes of the 20th Century, something that very few people know anything about. I mention that only because it explains why Jahar, in a Chechen family, grew up thousands of miles from Chechnya and has never set foot there. Jahar's father, Anzor Tsarnaev, was born in Kyrgyzstan, in the Chechen exile there, of parents who were both child survivors of those cattle cars. And Jahar's mother, Zubeidat Tsarnaeva, was born back in the Caucasus. She is not Chechen. She is a member of the Avar ethnic group in a region called Dagestan, which is right next to Chechnya. And they might never have met but for the fact that she was living with a brother in Siberia. Anzor was in the Soviet Army in Siberia. They're teenagers. She's 18; he's 19. They meet. They marry. He brings her back to meet his family in Kyrgyzstan.

And immediately his family realized that something is very seriously wrong. Chechen culture puts great emphasis -- it insists upon modesty, self-effacement. And Zubeidat was everything that Chechen culture does not permit. She was loud. She was over the top. She was self-aggrandizing. And Anzor's family rejected her, said she cannot be part of our family. Send her back. But he didn't. He stayed with her.

And thus began 15 years of wandering, of intermittent traveling and trips in which, for thousands and thousands of miles across Central Asia, Siberia, back to Chechnya and Dagestan, while the couple had four children, starting with Tamerlan in 1986 and ending with Jahar in 1993. These are the moves, the relocations, that this couple, and eventually their four children, made between 1985 and when they left for America in 2002. And this gives you some sense of the instability, the turmoil, in which these children first entered the world.

The pattern of this nomadic life was always the same. Anzor and Zubeidat would head off to some new place with great, unrealistic hopes and ended up having to go back to Anzor's family in Kyrgyzstan to bail them out, give them a place to live, put them back on their feet. They tried to return to Chechnya in the early 1990s but had to go back to Anzor's relatives in Central Asia just before the first Chechen war began, just before Russia attacked, to such devastating effect, 1994. In 2000, they thought it would be a good time to move back to Dagestan just as the second Chechen war was getting underway and as war broke out in the region, a terribly dangerous time for them to be going where they went.

Finally, Anzor's relatives saw what desperate shape this family was in and helped them emigrate to the United States. And they arrived in Cambridge, Massachusetts, in 2002, with higher hopes than ever. But nothing worked out. They worked hard and they tried everything, but within a couple of years both parents were diagnosed with serious mental illness, and their family's disintegration had begun. Anzor especially was badly damaged. He worked as a self-employed auto mechanic, fixing cars outdoors in empty lots and in parking spaces on the street. He worked hard, but he never learned English well enough to get a regular job, and his physical and mental illnesses were soon severe enough that he was placed on S.S.I., although he continued to work as much as he could.

Later on in this hearing, you'll see some of his medical and psychiatric records, and you'll see how afflicted he was with Post-Traumatic Stress Disorder, with organic delusional disorder, with panic attacks over the ten years in which he -- that he spent in Cambridge. Anzor, the man in the family, was supposed to lay down the law, make sure everyone did what was expected of him, but he was too sick to fulfill that role. And eventually, as you'll see, that would leave Tamerlan in charge.

Zubeidat also worked hard, but she had wildly unrealistic dreams that went nowhere. She took what she wanted. She got in trouble with the law. She alienated much of the small Chechen community in Boston. She proved a destructive force in the lives of everyone around her. She was desperate for praise and validation, and her children existed to reflect glory back on her. As her dreams in America began to crumble, Zubeidat began to turn to fundamentalist religion, and she made sure that Tamerlan learned about it, too.

Although the family had not been very religious in Russia and nor when they first lived in Cambridge, after several years in Boston, Zubeidat began to dress all in black and in the -- with a hijab, a head covering, like a devout Muslim woman in the Middle East, and she was becoming more and more radical in her thinking. Her own family in Russia was, and still is, as you'll hear, mystified by the changes. But throughout all this, the oldest son, Tamerlan, was the answer to all the family's mounting problems. He was going to be a boxing champion and compete for the United States in the Olympics. He was going to go to Harvard. He was going to become a famous musician. He was going to become a lawyer. He was going to become a dentist. He could do anything. Tamerlan was the reason the family existed. Only great things lay ahead. What made this so wonderful for Zubeidat was that Tamerlan loved and adored his mother so much. That was the atmosphere of maternal delusion in which Jahar grew up. He not only had an older brother to look up to obey, but his older brother was Superman.

But the evidence will show that Tamerlan failed at everything. After a mediocre high school career, he made three tries at community college and music school and dropped out or never even attended all three times. He had almost no legitimate work history, just a handful of occasional low-paying jobs. Despite his deepening interest in Islam, he spent most of his time drinking, chasing women in clubs, partying, smoking pot. His boxing career petered out partly because he never obtained his U.S. citizenship, as you'll learn, but also for what looks like lack of motivation. After he married and fathered a child, his wife went to work, as I've told you, as a home healthcare aid, to support the little family while Tamerlan stayed home becoming steadily more focused on extremist ideas that he was absorbing online. By the end of 2012, Tamerlan had received an eviction notice. He was about to lose the only home that the family had ever had in America. But Tamerlan was ready to step into an alternate reality where none of this would matter, where he would be important, where he would be remembered; and in all the world, there was one person he could take with him.

In 2009, Anzor is badly beaten in a parking lot outside a restaurant where he had gotten into some kind of argument. His skull is bashed in. His brain is damaged. And his psychiatric problems become even worse than they already were. In 2012, in January, as I've told you, Tamerlan leaves his wife and his one-year-old daughter to go to Russia to wage jihad. Anzor leaves for Southern Russia for Dagestan in May, telling people he is going home to die. Tamerlan comes back from Russia in July 2012 having failed to find a holy war to fight in. His mother Zubeidat leaves for Russia in September.

Jahar has just turned 19. He's a sophomore in college. He's drifting and he's failing. Now Tamerlan is in charge. He has always been the most important member of the family, and now he's the last adult family member in Jahar's life. The evidence about Jahar will look very, very different in what I've just described to you. Through all of the family chaos and that tiny, two-bedroom apartment that you've already seen, he was the quiet, helpful kid who did his homework, cared for his relatives' children, was loved by his teachers and appreciated by his friends. He didn't beat anyone up. He didn't take advantage of people. He did well in school.

You'll hear from a few of his friends in high school and college. It's hard for them to come forward now. But some of them will. Even Stephan Silva, remember him? The government's witness who was hoping for a good deal on his own charges. He didn't have a lot of running room to say anything nice about Jahar, but he still did. One of the realist and coolest kids he knew, he said. Never seen him violent. Never picked on anybody. But no one said -- no one says anything like that about Tamerlan. When people who knew Tamerlan heard that he'd bombed the Marathon, it kind of fit. But people who knew Jahar were stunned. Now, I'm sure there are people now who don't want to hear what Jahar was like all through elementary and high school. That's understandable, at least for people who don't sit where you do. But it's all true. He was a good kid. Now, the government will tell you that the good kid was a fake and that only the Jahar that followed his brother down Boylston Street was real. But does that really make sense? When did this fake self start? College? Twelfth grade? Eleventh? Tenth? Was he fake when he was eight? What about when he started that Al-Firdaus Islamic Twitter account a month before the bombings, the Twitter feed that the government made such a big deal about during the first phase of the trial? Was he faking when he lost interest after seven tweets? It doesn't really make sense. I think, when you look at all the evidence, you'll find that Jahar really was what he appeared to be: a lost teenager with very little motivation to do anything much on his own, who had been raised all his life to take direction from the most powerful adult, by 2013, the only powerful adult in his world.

When you look at all the evidence -- that reminds me of something that happened last week: the still photo of Jahar with his middle finger out. I could almost hear you gasp when Miss Pellegrini put that still up on the easel. And she did it between those four photographs of the victims, those beautiful photos of those people so young and full of promise. And it took us a whole day before you found out what you had and hadn't seen because, when you finally got to see the 30-second clip, it turned out that that shocking gesture wasn't quite as advertised.

What you saw was that Jahar had just been unchained after who knows how many hours, and he starts looking and walking around his cell. He finally has use of his hands. He starts to fiddle with his hair and starts using the plastic housing of the security camera as a mirror. Then he stands up close to it. He flashes a peace sign and, for just a split second, sticks out his middle finger. To who? To himself? What did it mean? It meant that he was acting like an immature 19-year-old is what it meant.

Then there's his facial expression which looks like a sneer until you know -- and there will be evidence about this later on -- that he had been shot in the face on April 19th, and his face was slightly twisted to one side by the wound. You can still see some of the effects of that wound on the left side of his face and his closed left eye. You also found out that the deputy marshal who saw whatever it was didn't think anything of it until the order came from higher-ups two days later to write a little report. Enough said about that, more than enough.

But it's worth remembering for this reason: because it's an example of how you can't ever accurately evaluate anything, not even a picture, until you know the context. Whether it's a grainy still from a surveillance camera or a young man's life, you have to know the context.

You'll also hear a little bit in this trial about where Jahar will go if you punish him with life in prison. This is another photograph of ADX. Can you see it on your monitors? This is where the government keeps other terrorists who used to be famous but aren't anymore. It's a place so secure that he won't even be able to glimpse the outside world. All you can see from the narrow cell windows or from the small, one-man exercise cages is a patch of sky. It's right near the Rocky Mountains, but no one in the prison can see that.

Importantly, communications are strictly limited, and the few that are allowed are monitored in real time. There is no privacy. There is a video camera trained on the inside of his cell and on him every minute of the day. There are no interviews with the news media. There will be no autobiography. There will be no messages relayed from Jahar onto the internet. There will be no nothing. There will be no media spotlight coming back on him as an execution date approaches. And one important thing you'll learn is that the FBI and the U.S. Attorney's Office here in Boston are in a position to help ensure that Jahar is cut off from the outside world forever if they think it best.

So the evidence will show that if you sentence Jahar to a lifetime of thinking about what he did, you'll both punish him and protect society at the same time. The government has called a number of expert witnesses, and we expect to call some experts, too, to shed light on particular issues or items of evidence. I'm not going to tell you about them all now, but I do want to mention one. Dr. Jay Giedd is one of the country's top researchers on how the human brain matures and what that means for adolescent behavior.

Everyone who's ever been or raised a teenager knows that they don't have the same judgment and maturity as adults. The death penalty law recognizes that by drawing an absolute line at age 18. Under 18, even by a single day, no one can even be considered for the death penalty no matter how horrible the crime that he commits. Well, in April 2013, Jahar was 19. He was 21 months past his 18th birthday. But he was still at an age too young to legally buy a beer, at which many, many people make horribly bad self-destructive decisions, the sort of decision that leave the people who know them and care about them thinking, asking, What was he thinking?

And one of the things you'll each have to decide for yourself is how to weigh his young age as an mitigating factor, that is, as a factor against imposing death. In the last few years, modern science has begun to understand why it is that adolescents so -- it's such a characteristic of adolescents to make such terrible decisions.

As Dr. Giedd will explain, the answer has to do with the way the different parts of the brain mature at different rates. The impulse, risk-taking parts of our brain mature before the parts that regulate our actions, our judgment, and help us weigh consequences. So adolescence is a time when we're like cars with very powerful engines and faulty brakes. It's a time to be more stirred by powerful emotions, rage at supposed injustice, love for a charismatic older brother, and less by logic and good judgment.

Now, Dr. Giedd will make clear that no one can say where a particular individual is on the path to maturation, and he certainly will not suggest, and neither will we, that Jahar could not have controlled his behavior because of his age or for any other reason. Let me say that again. Nothing you're going to hear from the defense in the coming days is going to suggest that Jahar couldn't control himself. No one is going to say that he didn't know what he was doing. No one is going to say that his brother actually forced him to commit these horrible crimes. And no one is going to tell you that you should feel sorry for him.

But when all is said and done, the evidence will still show that Jahar was the 19-year-old little brother. And considered with everything else, we think it will show that, as awful as this crime was, a lifetime in prison to face what he has done is the better choice for everyone. Thank you.