5.Closing Argument — Defense

MS. CLARKE: Thank you, your Honor.

May we have the screen?

Hello.

MS. CLARKE: Ten weeks ago, you took your oath as jurors in this trial, United States versus Dzhokhar Tsarnaev, and now the time's come for you to decide what to do with Dzhokhar.

It's -- I'm sure it was clear from the beginning of the case that the prosecution would come to you and ask you to impose a sentence of death. That came as no surprise. And I'm sure it's no surprise to you that I come before you on behalf of all of his attorneys and ask you to choose life.

And now you have the unenviable task, each of you -- each of you individually have the unenviable task of considering everything you've heard in court, considering all of the instructions from Judge O'Toole, considering your life experiences, considering your wisdom, and considering your moral sense in deciding the answer to that question.

Miriam, David, Tim, Bill and I have stood with Dzhokhar Tsarnaev for many months. We've tried to bring you information to help you do your job. We've told you when we agreed with the evidence of the prosecution, and we've told you when we've disagreed about their theories and about why.

We brought witnesses to tell you about Dzhokhar's background, his life, his life experience as a child, as a teenager, and now. And I need to talk with you about Dzhokhar.

But before I do, I want to make one thing very, very, very clear. The story of the Boston Marathon bombing is not about Tamerlan and Dzhokhar Tsarnaev. The story of the Boston Marathon bombing is one of tragedy of their making, but it is more than that. Family members of those who lost their loved ones came into this courtroom, either in the first phase or this phase, and testified from the depth of their grief and with great dignity and spoke to you about their heartbreaking loss. Those who were hurt beyond imagination came into this courtroom and testified about their pain and anguish. But every person -- in each person, you saw a will and a determination to survive and thrive.

First responders told us about their -- what can only be described as brave and heroic acts. They came in here and told us about their efforts to comfort the injured, to save the seriously injured and to protect others. The story of the Boston Marathon bombing is about resilience and the strength of the spirit of those so deeply affected by these senseless and catastrophic acts.

But I'm going to spend some time talking with you about Dzhokhar and his life because he's the person you've got to sentence. He's the person you've got to make your individual decisions about. You're not just making a decision about the horrific nature of the crimes. You did that in returning your verdict of guilty on every count in this indictment. You did that. You've done that. You're now to make a decision about who he is, who he was and who he might become.

I'm not asking you to excuse him. There are no excuses. I'm not asking you for sympathy. Our sympathies lie with those who were harmed and killed and their families.

What I am asking you to do when I talk with you about Dzhokhar is to listen. And I'm asking you to hold open your minds, as you promised that you would do, and I'm asking you to try to understand -- it's a mighty big task for all of us to do -- try to understand how the unimaginable occurred.

You heard from the witness stand a little bit about Dzhokhar's parents, very -- sort of very young and very rocky beginning. Neither thought they should marry. One was a Chechen, one was an Avar, and they shouldn't marry.

You heard a little bit about Zubeidat. You heard the name pronounced a couple of times, Zubeidat or Zubeida, Dzhokhar's mom, and you heard about how she was fashionable and flashy and loud, and Anzor was a hard-working, quiet man. They moved a lot, often thousands of miles.

And from Kyrgyzstan -- I think we've got a map. I think you saw this chalk during the testimony. And you heard about how they moved from Kyrgyzstan to Kazakhstan to Chechnya to Dagestan, often thousands of miles, and required the help of Zubeidat's sisters and their children to help the family make it. Zubeidat and Anzor had four kids in seven years. They often landed with relatives thousands of miles from where they had been living, uprooting the kids. Now, the prosecution tried to make it sound like they were summering on the Caspian Sea. We know that's not true. We heard from the women that came here from Russia that that wasn't true. There was a two-bedroom apartment where they crammed in with several other relatives and stayed for months. Even the women that came here to talk with you from Russia told you how unsettling all of those moves were for that family.

The women who came here, two sisters of Zubeidat, and the cousins of Dzhokhar didn't even know until coming here where Tamerlan had been born. They didn't know that Dzhokhar's birth certificate showed that he was born in Kyrgyzstan and were somewhat surprised to learn that because some of them were there when he was born in Dagestan, 2,000 miles away.

While most folks described Anzor as a quiet, hard-working dad, there were mixed reviews on Dzhokhar's mom. She ranged from fashionable and flashy and loud. Her family was stunned, shocked when she began covering in dark. Her somewhat skeptical son-in-law, who we -- former son-in-law who we saw coming to Boston by way of video from Kazakhstan, talked of her -- about her as controlling and didn't believe the reasons for her covering up.

You heard her described as intense and intimidating and attending a baby shower and acting like the queen bee. A wide range of descriptions for Zubeida. The one thing we really got out of that is she was a force in the family.

So when -- in 2002, when Dzhokhar -- eight-year-old Dzhokhar came with his mom and dad to the United States, they came over here with one child, leaving 15- or 16-year-old Tamerlan in Kazakhstan with his two sisters, with family, and they tried to make their way in the United States. A year later, the whole family joined up in Cambridge and set on hopes and dreams and unrealistic expectations for Tamerlan.

Tamerlan would go on to do great things. Tamerlan would be a famous musician. Tamerlan would be an Olympic boxer. Tamerlan would be the savior of the family. Where was Dzhokhar in this entire time and this entire discussion? He was the quiet kid who kept his head down and did his homework. He was the shy, quiet, respectful, hard-working kid that the teachers and friends came in here and told you about.

Katie Charner-Laird, the third-grade teacher -- she came in and said, "Look, he came in speaking Russian. He learned English. He learned it well. He worked hard. He wanted to do everything right."

Tracey Gordon told you about the fifth-grader who enjoyed the farm club. He was hard-working. She recalled his enthusiasm when he went to the farm school. We saw several pictures of that. She recalls him dancing in the classroom. She met his parents, and his parents wanted him to skip a grade and go ahead. And that happened.

Becki Norris taught Dzhokhar in middle school. You may remember Ms. Norris when she came in. She loved that kid. She spoke Russian. She became his advisor. She got to know him very well. Her husband got to know him. They saw great promise in this kid. Her husband was a soccer coach. They cared deeply for Dzhokhar then, and they care deeply for him now.

Becki Norris remembered Dzhokhar coming to school one day in the wrong color pants. Do you remember that testimony? And he got sent back home. And when he came back, he said his mother was pulling him out of school, and Becki Norris was devastated. She even remembers that feeling today. She was devastated by that and said, "I'll call your mom."

What did Dzhokhar say? "Don't. It won't do any good."

You heard Dzhokhar followed his big brother around the boxing gym, followed Tamerlan around the boxing gym like a puppy. So Dzhokhar was at the boxing gym, but unlike with Tamerlan -- and I don't want to miss the picture that made Becki Norris almost tear up on us. She was pregnant the year she taught Dzhokhar, and one of the children that she was able to let hold her infant was Dzhokhar. She still holds that memory.

But where was Dzhokhar's dad when he's taking pictures with Tamerlan? Where are the pictures of Dzhokhar? He was the invisible kid. But, you know, Dzhokhar tried. He still tried hard.

Eric Traub, remember him? He lives in Washington, D.C., now. He taught Dzhokhar in the ninth and the twelfth grade. And he remembers him very, very well and wrote a letter of recommendation in December 2010.

And I asked him to look at it, and he read it out loud to you, and I said to him, "Did you believe it then?"

"Yes. "Do you believe it now?

"Yes."

"Dzhokhar is a good student. He quickly absorbs new ideas. He's amiable with peers and adults. His good nature and positive spirit have made Dzhokhar a pleasure to know over the last four years. He's polite and respectful and enters class with a warm greeting."

This was a man that fondly remembers Dzhokhar and remembers stepping into a photo -- I think he called it a photo bomb. He stepped into the photo with Dzhokhar and another student.

Dzhokhar did the Model U.N. club. He did Best Buddies. He was good with disabled kids. He seemed to do high school on his own, though. Even his wrestling coach, Roy Howard -- remember the man who came in, and he was the volunteer wrestling coach. And he -- because he had another job. And he came in and he said, "Yeah. I always liked to talk to the parents about the nutrition and all of the demands of wrestling. Wrestling has some of the most demanding, you know, practices to it and -- you know, because the weight has to be managed and all of that. And I like to talk to the parents about the demands on the kids, and I like to talk to them about nutrition."

Did he ever meet Dzhokhar's parents? No. They didn't show up for senior day, the big day for the wrestlers when the wrestlers get their rose.

We now know that something was going on at home. Dzhokhar's dad was becoming more disabled. His mother and older brother began to listen to an Armenian man named Misha who brought his own special version of Islam into the home and began to teach them about it. We know that Tamerlan began to have ideas and obsessions about conspiracy theories and about religious extremism.

We know that by 2010 Zubeidat, Dzhokhar's mom, had changed in many ways. Zubeida, who had been a flashy dresser, described by many people that way, and who enjoyed a good party, and whose parenting skills were probably learned in the chaotic shuttling that she went through as a young child in the villages of Dagestan -- we know that she had changed to conservative dress and conservative religious views and was not a safe harbor for Dzhokhar.

You heard from Zubeida's own family, her sisters and her nieces. What a shock it was, how scary it was to them to see her covered in dark. What did they say to you? "That is not how our family was raised."

And you know from the government's own intelligence committee report that Zubeida was radicalizing. Two years before the Boston Marathon bombings, Tamerlan and Zubeida came to the attention of the FBI based on information received from the Russian Federal Security Service. In March 2011, the FBI received information from the FSB alleging that Tamerlan and Zubeidat were adherents of radical Islam and that Tamerlan was preparing to travel to Russia to join unspecified underground groups in Dagestan and Chechnya.

So that's what was happening to Dzhokhar's mom and Dzhokhar's older brother. And what was going on with his dad? Anzor was becoming more and more disabled. And you heard from Dr. Niss that when Anzor came to the United States, he came with a series of mental health problems. He began getting treatment when Dr. Niss was here in 2003, 2004 and 2005. And they only increased in intensity over time, and then he suffered that remarkably damaging head injury.

You heard about the medical records. And we read some of the records to you. They're in evidence. You can see the entirety of the records. In 2007, "Patient complains of attacks with flashbacks and out-of-body visions, of having some auditory hallucinations and his name being called, difficulty falling and staying asleep. And will go on for days without being asleep."

"Patient reports having auditory hallucinations" -- later in 2009 -- "voices screaming his name or whispering and some visual hallucinations, little lizard-like creatures, for the past three to four weeks."

"Anzor reports severe frontal and left side headaches with decreased sensation on left side of face. Patient reports unsteady gait, visual changes, tremor, auditory hallucinations, multiple voices screaming his name." This was Dzhokhar's dad.

2011, "Anzor reports feeling quite overwhelmed, appears depressed, tearful, having difficulty functioning, upset with minor things. 'If I'm not getting better, my wife would divorce me.'" 2014, shortly before he leaves the United States and returns to Russia for good, "To whom it may concern: Patient suffering from mental illness. Not able to work. Needs constant supervision and support."

Sam Lipson came before you. He's known the family for a long time. His mom was the landlady. Sam Lipson came and told you about the changes in Anzor and changes in his friend. He viewed Anzor as his friend. He saw him losing weight. He saw him feeling burdened and unhappy. We know there were serious problems in the home.

But Dzhokhar still had friends. They didn't know much about his family. They hadn't been to his house. But they cared for him. You could see that when they came before you. He was loyal. He was laid back. He was funny. He was quiet. He was shy.

Rosa Booth, a young woman, came in and described him as sweet, shy and goofy. And she had a crush on him, but she was so shy she wouldn't accept his invitation to go to the prom.

Bett Zamparelli knew him in Best Buddies. He made her laugh and feel good. He was respectful to the other girls. He treated them with respect. And when Bett saw the pictures of the Boston Marathon bombers, one looked like Dzhokhar, but she very quickly set that thought aside.

Dzhokhar had a bond with his wrestling buddies. Remember Henry Alvarez came in. He was kind of funny about comparing the various sports. He said that Dzhokhar was kind and funny and would dance to a song to break the tension in a room. He asked Dzhokhar to come to his senior night and to be there when he got his rose. He couldn't imagine that Dzhokhar could do something like he did.

Coach Howard, who chose Dzhokhar to be co-captain of the wrestling team, described him as a quiet, hard worker and dedicated. He was a good wrestler.

One thing that was consistent in all of the family chaos and craziness was Dzhokhar remained the invisible child. His parents weren't there for his wrestling match. His parents never met his teachers in high school.

In the fall of 2011, Dzhokhar went off to UMass Dartmouth. On the surface, his college years started out sort of ordinary. He did okay in school. He had friends. He drank, although he was too young. He smoked and sold some pot. He was with his friends the first year. Remember Tiarrah Dottin describing the bro nights that they had, and she recalled that very fondly. She even recalled very fondly the selfie when they clearly are -- having been done something that they shouldn't have been doing, but she remembered it, and she teared up over the memory of her good friend, Dzhokhar.

Alexa Guevara came before you and she described Dzhokhar as approachable, kind and accepting. He was more respectful than the others. Remember when she said, We played Ruzzle together, the Internet Scrabble game. Dzhokhar encouraged her to go to art school. She cried when she told you she misses the guy she knew.

Even with his friends, 2012 was a fairly unsettling -- "fairly" is a light word -- a remarkably unsettling year for Dzhokhar. His dad left the United States for Russia and never returned. His brother Tamerlan, who had changed dramatically, becoming very radical, left for Russia on a trip we now know was to wage jihad, to take up the fight in the mountains -- or to take up the fight.

When Tamerlan returned from his unsuccessful join-up with the jihadi movement, he was frustrated and determined to find a new war to express his rage. Dzhokhar's mom left and went to Russia for good. She wasn't available, even with her limited parenting skills, to help this kid, to be there to provide any guidance or support that a parent does. Many of us have seen kids go off to college. They graduate from high school, and they go off to college. They're not done. They need a tremendous amount of support from their parents. They still need guidance from their parents. And what little parental guidance and support Dzhokhar had by September of 2012 was gone.

And perhaps more significant than that was who he was left with. His sole source of family, of support, of strength by the fall of 2012 was his older brother, Tamerlan. Tamerlan had charisma. Tamerlan was bigger than him. Tamerlan was older than him. It's not uncommon, in any of our experiences, whether you're Chechen or Avar or -- or us -- it's not uncommon in any experience that a younger brother will revere and adore an older brother and not really understand the logic of why. But it's particularly significant in the culture of the Chechens and on both sides of Dzhokhar's family tree. You heard about the Avar -- the women that came in from Russia: "Yes, it's very important. Our fathers and our older brothers make decisions for us." In the Chechen culture, it goes back thousands of years.

But what Elmirza, who came in from Kazakhstan by video -- I point over there because that's where I saw him. What did Elmirza tell us? He had a very interesting little quote that he said. And remember, Elmirza is in the picture as the Chechenian. But Elmirza came in and he said, "We have a funny quote in our culture. It's better to be a dog than the youngest of seven brothers." And he explained that because you owe allegiance to so many people above you.

So we need to talk about Tamerlan. The government, from the attorney box to the witness stand, continue to try to minimize any interest in Tamerlan and has complained that we have focused on Tamerlan. Today for the first time we hear, "Well, Tamerlan didn't influence Dzhokhar." At least they're recognizing that Tamerlan was there.

Tamerlan did influence Dzhokhar, and we need to talk about Tamerlan. Somebody needs to talk about Tamerlan. The story of Dzhokhar cannot be told without knowing the story of Tamerlan. The horrific events of the Boston Marathon bombing cannot be told or understood in any degree of reality without talking about Tamerlan.

We know that Dzhokhar respected and loved his older brother. We know that his older brother was a major influence in his life. We can see it in the pictures from very young what these kids meant to each other. We can see it in the size difference, in the age difference and just how they interacted. We can see it in this photo with the older brother and the much smaller younger brother.

He seemed deferential to his older brother. One witness came in and said he followed Tamerlan around like a puppy. Vishkan Vakhabov, who did not come before you but whose FBI 302 was read to you, talked about Dzhokhar being like a little boy. We know from a lot of evidence and witnesses that Tamerlan was charming. He was charismatic. He was a flashy dresser.

He thought of himself as the professor. Again, Elmirza made this -- Elmirza, the Chechenian, Tamerlan, the professor. He was a skilled boxer. The boxers came in, and they said he was a skilled boxer, but he would listen to no one.

And something happened to Tamerlan. He tried, and he failed. He couldn't stay in school. He couldn't get a job. He couldn't stick with boxing. He couldn't go to the Olympics. Something happened.

And Misha turned up at the house, and Tamerlan began to learn more about Islam, an unusual form of Islam, discussions of demons. And he got obsessions, and he got into conspiracy theories, and he got into politics, and he changed.

Elmirza saw the change in his friend and brother-in-law. Robbie Barnes, who came in and testified, saw the change in his dress and how he interacted with people. Roger Franca, who used to smoke pot and drink and party and club with Tamerlan, saw the dramatic change in him, the man dressed in white and wearing the beard.

You may recall the chance meeting that Roger Franca said he had with Tamerlan walking down the street. I think Boylston Street. And Katherine stepped back behind as they greeted each other and would only nod and shake her head in greeting.

You recall the testimony of Mr. Assaf, the imam at the mosque where Tamerlan attended, where Tamerlan disrupted the mosque twice, the sermon. It's unheard of. It's inappropriate. It violates the prayer. It's not done. And Tamerlan did that twice. He told his friend, Vishkan Vakhabov, who, again, you heard from the 302, that extremist violent jihad was the proper path.

Tamerlan's power over those who he encountered is seen no better than in his relationship with Katherine. Katherine Russell, a beautiful, young college student, falls in love with Tamerlan. She was an attractive young woman. She enjoyed fun with her friends. And she changed dramatically under Tamerlan's influence.

Judith Russell, her mom, you saw her. She came in. It's a difficult thing for her to do, to come in and talk to you. And she told you about her concerns with Tamerlan. She told you how she tried to work with her daughter about it. And she told you how she tried to be gentle so that she could keep her daughter and her granddaughter in her life. But her daughter changed. Gina Crawford, Katherine's best friend from fifth grade on, saw the changes in her best friend and chose to be non-judgmental about it so that she could keep the friendship. Amanda Ranson, the former roommate of Katherine, came in and told you that she feared for Katherine, she feared Tamerlan, and she was so afraid from a fight that they had that she moved out.

Yes, this strong-willed, independent, young college student, daughter of a doctor and a nurse from Rhode Island, fell to Tamerlan's sway. Judith Russell showed you the picture. He left her and he left her young daughter with her when he went to Russia in 2012. And this isn't just our guesswork about why he went. You heard about it from the Homeland Security report. It's in evidence. And you heard about it from the Intelligence Committee report.

And you heard about it through the -- again, through the 302 of a guy named Magomed Kartashov, who was a relative of Zubeida, and living in Dagestan in jail. And what he said to the FBI was: Tamerlan was under the impression there was jihad in the streets. Tamerlan's expectations of how it was going to be when he got to Dagestan came from Internet sites like Kavkaz Center. Tamerlan came to Russia with the intent to fight jihad in the forest. Kartashov told him to stop talking like that or he wouldn't make it to the next tree. Tamerlan told Kartashov, "I came here to get involved in jihad." Eventually Tamerlan told Kartashov, "You have convinced my head but my heart still wants to do something."

Tamerlan's decision to pursue jihad was not a decision he made yesterday. Tamerlan was on the radar. He was on the terrorist watch list. You saw pictures of him there. You heard about recordings on his computer where he is talking to other people involved in the movement, and he talked about the rage he had and his call to action.

To say that Tamerlan did not influence Dzhokhar defies the reality of the series of email exchanges with Tamerlan and Dzhokhar when Tamerlan was over in Russia. Tamerlan was consistently sending materials, jihadi kinds of materials, radical extremism materials, to Dzhokhar.

And in a telling exchange of emails while Dzhokhar was over there [sic] -- well, this slide sort of popped up on me. But do you know what happened? Before he went, you can see part of the purpose of his departure -- Katherine was worried about it. These are searches on Katherine Russell's computer: "If your husband becomes a shahid, what are the rewards for you?" "Can women become shahid?" "Wife of the mujahidin. Rewards for the wife." Katherine was worried about what Tamerlan was doing.

You know from Tamerlan's computer that he gave the radical materials to Dzhokhar. We looked at this in the first phase, and I'll go through it quickly in this phase. But this was the complete Inspire. Remember the missing Patriot thumb drive? The missing Patriot thumb drive attaches on the day that Tamerlan leaves for Russia, attaches into the Samsung, Tamerlan's computer, and then the file is created, the complete Inspire file is created, and then it is attached into the Sony, Dzhokhar's computer.

The other Inspire magazines follow a similar path. The vast majority of the materials that you heard about all throughout this trial that landed on -- and that Mr. Mellin talked about in closing, that landed on Dzhokhar's computer, landed there from Tamerlan. Tamerlan spent a lot of his time focused on radical websites and radical ideas. And his desktop, you know, the background on his computer, the screen that you stare at when you don't have a document up, here it is. This is what Tamerlan looked at every day when he looked at his computer.

And the sticky notes -- here's one of the translations. There's another translation for the other note in evidence -- is jihad.

"If Allah had so willed, he would have taken revenge himself, but he wanted to test some of you by means of others."

"And if they turn him away, it's enough for me to have Allah. There's no god. I trust in him. He is the lord of the great throne."

"Truth has arrived and falsehood perished, for falsehood is bound to perish."

"Allah says in the Qur'an fighting may be imposed on you, even though you dislike it. You may dislike something which is good for you, and you may like something which is bad for you. Allah knows what you do not know."

This is what Tamerlan looked at every day. This is what he wrote. This is the sticky note on his computer. Other notes were found in the Norfolk Street apartment. You may remember there were these composition notebooks, and his fingerprints were all over them. We brought you the translations of the notes. It's a similar kind of writing. He was consumed with radical extreme ideas, and he pushed and pushed. Remember the little video of his daughter, Zahara, at the park, and she's climbing on the contraption there, and he's saying, "Al Akhbar, Al Akhbar." And she starts to repeat it back to him: "Al Akhbar." I mean, here's a toddler playing in the park.

Naida, his cousin from Russia, was so undone by his radical change and radical extremism when she saw him in Russia in 2012 that she did not want her son to spend any time with him.

So that's Tamerlan.

What was going on with Dzhokhar while Tamerlan was in Russia? While he was in Russia, Dzhokhar was going to bro nights. He was posting on Instagram. He was posting on Facebook. He was hanging out with his friends. He was doing a little underaged drinking. He was spoking pot with his friends. He was missing some classes. He was flunking out of school. He was not engaged in radical jihad.

In a very telling set of emails, though, when Tamerlan kept sending stuff to Dzhokhar, Dzhokhar writes back, "Tamerlan, I miss you. I hope everything's all right. I can't get through to you, no matter how many times I try to call. Thanks for the video. Take care of yourself. I'll call today. Inshallah."

The only other response while Tamerlan was in Russia from Dzhokhar, when Tamerlan is sending him materials, is to send back to Tamerlan what Professor Reynolds told you about was a -- sort of an anti-jihad site. It was a government-sponsored site with a text from a 13th century mystic. But the jihadis reject it. So this wasn't Dzhokhar weighing in and supporting and liking or encouraging Tamerlan.

Dzhokhar's other -- and they're in evidence. His other emails to Tamerlan were about cars. That's who that kid was. Tamerlan left the United States wanting to wage war. He was rejected as a warrior. He left the United States for Russia as a jihadi wannabe. He couldn't make it. He came back to the United States as a jihadi wannabe. He couldn't fit into any movement. So he created his own.

It was not Dzhokhar at this point in his sophomore year in college that was like that. You know it; I know it; we all know it. And to say that Dzhokhar was a jihadi in his -- the beginning of his sophomore year in college is just wrong.

After he came back to the United States, Tamerlan went on his search through the Internet. He found these extremist articles. He looked at violent YouTube sites. You saw some of the clips from YouTube sites, and you saw that chart that showed how much time you spent on YouTube. And Professor Reynolds told you he went in and looked at the kinds of YouTubes that Tamerlan was looking at, and they were either preaching about religious extremism or teaching or somehow encouraging that movement.

He also looked for a P95 Ruger. He looked for bomb-making parts. He ordered the materials that he built the bombs with. And as we talked about and showed you in the first phase of this case, his fingerprints were all over the materials; not Dzhokhar's.

We've told you that Dzhokhar followed his brother down Boylston because that is the tragic truth. But if not for Tamerlan, this wouldn't have happened. Dzhokhar would never have done this but for Tamerlan. The tragedy would never have occurred but for Tamerlan. None of it.

Dzhokhar became convinced of the fallacy of the cause of his brother's passion and became a participant. He carried a backpack, and he put it down in a crowd of people, believing that it would be detonated and people would be hurt and killed.

To replay for you today, after you've made your decisions in the first phase, the picture of Dzhokhar standing by the tree and to replay with the mockup of the grill, is misleading. We do not deny, and we have never denied, and we came to you at the very beginning of this case and acknowledged that Dzhokhar put that backpack down. But you saw the films, and we don't need to see them again, the Forum video films with the crowds going back and forth. And to take a clip and to show Dzhokhar standing behind the tree and to argue that there was nothing between him and the children makes more of something that was already horrible enough. Let's not make it worse. He was foolish enough to get a gun for his brother. He was foolish enough to go with his brother. Do you really think that he used that gun? Do you really think he got it for anybody other than his brother? The evidence would really tell us that that's who he got it for.

Tamerlan -- at Watertown, who had the gun? Who was shooting at the police? Who shot Collier with the gun? Whose fingerprints are on the magazine inside that gun? Tamerlan's. Who had the BB gun and the fingerprints on the BB gun? Dzhokhar.

Tamerlan was determined to die in a blaze of gunfire, and Tamerlan -- and Dzhokhar panicked and got into the car and escaped. Hundreds of bullets went into that Mercedes and didn't kill this young man. He ran -- how it didn't kill him, I don't know. He ran, and he hid in a boat, and he wrote. And you know what he wrote, words that had been introduced to him by his brother; words that he had listened to, that were sent to him by his brother; words that he had read that were sent to him by his brother until at least -- he could at least recite them. But we're not sure with how much certainty he could recite them.

Remember he also wrote, "I am jealous of my brother who has gone to paradise"? What's the first thing he asked the EMTs when he was being taken to the hospital? "Where's my brother?"

The differences in Dzhokhar and Tamerlan can be seen in other ways, from how they reacted when they knew the police had them. Tamerlan shoots straight at them, walks into the blaze of gunfire and throws the gun at them and resists, fights and yells and screams when the EMTs are trying to give him aid.

When Dzhokhar was spotted in the boat with no weapon and ordered out, he came out of the boat. You saw the boat. We all went out and saw the boat. You saw the hundreds of bullet holes in the boat. He wasn't, again, killed, but he was shot. He was hit in the head and the face, the hand. You see him coming out of the boat. And what did he do? He followed the directions of the EMTs. He answered their questions, he accepted treatment, and he asked about his brother.

So how does all of this happen? How does this good kid, this youngster, this young man who was described as gentle by friends and family and teachers -- how does he do it? How did this happen? If there were an easy -- if only there were an easy and succinct answer to that question, that will haunt many of us for years to come, I would give it to you.

Sometimes star-crossed lovers whose families don't want them to marry, marry anyway, and their marriages work out. Sometimes people who have serious mental illnesses and get help can function. That didn't happen for Dzhokhar's parents.

Sometimes refugee families can come from difficult circumstances in war-torn countries and come to the United States and embody the American dream, despite their past. That didn't happen for the Tsarnaev family.

Sometimes children who are forgotten or neglected or raised in chaos and craziness are able to recognize that they don't have to protect their families and they can ask for help and get it and their hollowness does not get filled up by the darkness of the most dominant person in their lives, who they happen to love beyond their understanding. Not so with Dzhokhar.

If you're looking to me for a simple and clean answer as to why this young man, who had never been arrested, who had never sassed a teacher, who spent his free time in school working with disabled kids -- if you ask me -- if you expect me to have an answer, a simple, clean answer as to how this could happen, I don't have it. I don't have it.

I can tell you this, and we've shown you, that Dzhokhar Tsarnaev is not the worst of the worst. And that's what the death penalty is reserved for, is the worst of the worst.

The prosecutors want you to believe that Dzhokhar is a bad seed, and they had everyone fooled, every teacher, every friend, every person who came before you and risked public exposure coming to you to testify -- every one of those people were fooled. He committed a heinous crime and must be executed. That is the prosecution's theory.

The crime is heinous; that much is true. But you promised us when you took your oath as jurors that when the time came for sentencing, you would look beyond -- you would look beyond the crime, you would look at the person, and you would look at all of the reasons that the law allows you to consider life without the possibility of release could be the appropriate sentence. And when you deliberate -- when you get the case, when you deliberate, you'll have the aggravating and mitigating factors that the judge has gone through and the prosecutor has gone through and hear the aggravating -- and you'll get to consider them and hear the aggravating factors are primarily focused on the crime. There are no aggravating factors that the government alleges that focus on Dzhokhar being a danger, Dzhokhar leading a life of crime and violence, or that he will continue to be some lawless, violent person, unable to be housed in prison. The aggravating factors in this case you pretty much have already decided by your verdict in the first phase.

The mitigating factors are going to ask you to look to Dzhokhar's past as well as who he is now and his future. They look to his background. They look to the circumstances of the crime, his role in the crime, and his future. Is his a life worth saving? Is there hope for him? Is there hope for redemption?

The law recognizes that all people convicted of the same crime don't get the same sentence. Whether it's murder or murder by weapon of mass destruction, you've got to the look at the person. So in a minute I'm going to talk to you about a couple of things in the verdict form that I want you to sort of untangle or figure out, but first let me talk a little bit about the categories of mitigation that you'll see. You've seen the list. The judge read you the list. You saw the list come down on your screens.

There will be factors that you consider about his family, about Dzhokhar's background, about the lack of parental support that he had. There are mitigating factors having to do with his role in the crimes. We brought you evidence that although both Tsarnaev brothers are responsible, they had very different roles. Those are things you need to consider.

What was Dzhokhar like in the life that he led before these crimes? Something to be considered. You know from his teachers, from his friends that he was a kind and gentle boy, that he cared for people and he sought to help others.

You know that in high school, just two years before the bombing, he took pride in his schoolwork and in his athletic ability, and he was motivated to help other disabled schoolmates. He was in the Model U.N. He was in Best Buddies. He was a wrestler. He was well liked and well loved.

You've also heard that he's young. He was 19 at the time. Dr. Giedd came before you, Jay Giedd. You may remember his testimony. And Dr. Giedd has spent some decades studying brain development, and he's been studying primarily the adolescent brain development.

And his bottom line of his testimony was something that we all know, if you've ever been a teenager, had a teenager, known a teenager. We all know it's not a finished product. And Dr. Giedd was able to show you from brain studies the reason why teenagers are the -- the way they are, why that time in life is so topsy-turvy, why you can make some good decisions and make some bad decision. It's what's going on.

There's a biological reason that we have teenagers, and he's spent his life studying it. Sure, there are averages. Sure, you don't know from any brain scan how mature any individual was. Could you imagine that, as a parent? You'd like to have that.

There are categories of mitigation that look at who Dzhokhar was in the past. There are categories of mitigation that look at who he is now and who he's likely to be. There's nothing in the evidence, nothing at all, to suggest that Dzhokhar is likely to be difficult to supervise or manage or house in a prison. He's never tried to influence anybody about his beliefs. He's never tried to break the rules or disobey the law. And he's been incarcerated for two years.

And what does the government bring to you after over two years of incarceration? A video -- not even a video, a picture, an instant, the one second of Dzhokhar shooting the finger at the camera. Now, most -- that's probably a first. I doubt anybody has ever been written up for shooting a finger at the camera. It's the kind of scrutiny this kid is under. And if there were more, believe me, you would have been hearing about it. What surprises me the most about the government's attempt to persuade you based on that evidence is that they took the instant clip and took it entirely out of context. Didn't show you the sort of childish, silliness about it, stupidity about it. And what's more important is what they didn't tell you when he was called on it. What did he say? "I'm sorry." He apologized.

Finally, we think that we have shown you that it's not only possible but probable that Dzhokhar has potential for redemption. Sister Helen Prejean testified and told you about her visits with Dzhokhar. She's spent five visits with him. She shared her insight into him and his potential for redemption. As you know, she's a nun, and she runs a -- part of her ministry is to work with prisoners who have committed horrible crimes.

She met Dzhokhar. They discussed religious beliefs. This young Muslim guy and this older Catholic nun discussed their religious beliefs. He was open. He was respectful. And what was the first thing she noticed about him? So young. And then what did she tell you? He's genuinely sorry for what he's done. "When I asked him about the crimes, he lowered his head, he lowered his voice, and he said, 'No one deserves to suffer like they did.'"

That just does not sound like the same boy who wrote in the boat, "I don't like killing innocents unless it's necessary." "It's necessary." That is growth. That is maturity. Most of us hope that we have a chance to mature more from age 19 to age 21. And what Sister Helen gave you the opportunity to see is that this kid is on that path of growth and remorse.

The young man that Sister Helen sat with is not the angry, vengeful, uncaring, unrepentant, unchanged, untouched young man that the prosecution has described to you. What unrepentant, unchanged, untouched jihadi is going to meet with a Catholic nun, connect with her, talk with her and have her enjoy the conversation with him? What unrepentant, uncaring, untouched young jihadi is going to reveal his regret for the suffering that he caused?

I suppose the government's going to argue that this young man pulled the wool over Sister Helen's eyes. That is simply not going to happen. She's been at this work since 1957.

MS. CLARKE: She works -- she is experienced. She may be against the death penalty, and that was the cross-examination. Many religious figures are against the death penalty. She's against the death penalty, but she's not going to come in here and lie to you about her observations of this young man. And what unrepentant, hate-filled jihadi would even bother to try to get her to be fooled?

We ask you to reflect on her testimony. It was short. It was direct. It was to the point. And it shows the potential -- the great potential for redemption.

The verdict form. The judge went through it. It's 23 or 24 pages long. It begins with the threshold intent factors. Those are factors that you have to find -- you've already found them in the first phase of this case. Those are factors that you have to find to make the case eligible for the death penalty. It is eligible for the death penalty. You can check them off.

The statutory aggravating factors are a similar narrowing so that you can have the decision about whether to impose death or life. You can check them off. You have found them in the first phase of this case. You have already discussed the facts that give rise to those statutory aggravating factors.

There are non-statutory aggravating factors that the prosecutor went over with you. You can check them off.

There are two, though, I would like for you to look at and think about because they just may not apply. "Dzhokhar Tsarnaev demonstrated a lack of remorse." Now, the prosecution has come to you and said what that means is what he wrote in the boat and the fact that he was not remorseful during the time of the crime.

Well, that calls on a little bit much. The crime charged is conspiracy that lasted up through the 19th of April. And you don't know many people who are remorseful during the commission of the crime. It's okay if you make that finding. The critical thing is that Dzhokhar is remorseful today. He's grown in the last two years. He is sorry, and he is remorseful.

The other one that raised some concern is the -- and that is on page 14. It's Number 4. The next one is the allegation that Dzhokhar murdered Officer Collier. Now, we know that you have found him legally responsible. He was charged as an aider and abetter. You found him legally responsible for the death of Officer Collier.

He didn't pull the trigger. He may be responsible for the death of Officer Collier, but in a sense of weighing that for punishment, consider who killed Officer Collier, who pulled the trigger. We talked long and hard during the guilt phase about that -- that evidence. It didn't matter because of the legal responsibility that the aiding and abetting charge carries.

The verdict form also contains the list of mitigating factors that the judge went over, and it includes blanks if those aren't all of the factors. The only thing I want to caution you about the mitigating factors, and the judge's instruction covers it, that if you find by a preponderance of the evidence, by 51 percent of the evidence, that the factor was proven, then you note that.

So if you find that Dzhokhar was 19 years old at the time of the offenses, which he was, you write in 12. If you find that Dzhokhar had no prior history of violent behavior, which is true, you write in 12.

Now, the 12 doesn't necessarily tell you what kind of weight you're going to give to that factor, but this is the factual finding that you write in.

Tamerlan -- Dzhokhar acted under the influence of his brother, which is true. 12. And I believe you can go down the line of all the mitigating factors --

MS. CLARKE: -- and make your finding.

And in the end, there are several blanks for other mitigating factors that any of you might find appropriate. In other words, it's not a finite list. If there are other reasons that you believe weigh in favor of a life sentence, you can write them in.

Then the last section, Section VI, is really where your work is. Because I think you can check off these threshold factors, check off these statutory aggravating factors, check off most of the non-statutory aggravating factors, discuss and check off the mitigating factors. But where your work comes in is in the determination of the sentence.

The law that Judge O'Toole has given you and will finish up with tells you to make findings about aggravating and mitigating factors. You make the finding that they exist. And then it's not a numbers game. It isn't, "There are six factors here and 17 factors there." It isn't a numbers game. It isn't list and list and then the longest list wins. You don't make a list and look at the columns. You can find that one mitigating factor outweighs all the aggravating factors. You can find that there are no mitigating factors and that the aggravating factors do not justify the sentence of death.

Whether a sentence of death is justified is your own individual decision. The judge's instructions tell you that. And I know during voir dire we talked a lot about, you know, "Well, I'll follow the law, and I can follow the law and do what the law requires me to do." Well, the law requires you to make these findings. The law requires you to make findings as to aggravation, findings as to mitigation, to weigh them, and then the law leaves it entirely up to you.

There is no law that ever requires that a sentence of death be imposed. That is an individual decision for each of you to make. It is an individual reasoned judgment that you make. You have a duty to deliberate with each other. You have an obligation to discuss with each other. You have an obligation to hear each other's views. But the law values life, and you have no obligation to vote for death.

Each one of you individually, each one of you, is a safeguard against the death penalty. Each individual.

You've been through a lot together. We've all been through a lot together. But you've been through a lot together sitting here for the last ten weeks, and I'm sure you want to support each other. But that is not your job in this phase. You have a job to deliberate, listen, discuss and respect. Everyone respects everyone else's views. No one of you ever, ever has to vote for the death penalty.

A sentence of death is only imposed if it is unanimous. The questions on Section IV guide you through this.

"We, the jury, unanimously find all of the capital counts and that aggravation significantly outweighs mitigation." If you make that unanimous finding, it is death.

"We, the jury, unanimously find that a sentence of life in prison without the possibility of release for all of the counts." If you make that decision, it is life.

"We, the jury, unanimously find for some of the capital counts." If you make a finding as to any of the capital counts that -- unanimously that death is appropriate, that is the sentence. It will override any life sentence.

The judge, in the instructions -- and it's really important to listen to this. You should understand that if you impose the death penalty as to any count or counts, the death sentence will control, regardless of any life sentences that may be imposed on other counts. A single count with a death sentence is death.

The judge also cautions you in the instructions, "The government was entitled to bring multiple charges with respect to each homicide, but the number of counts does not by itself mean that the defendant's conduct is more blameworthy or he is worthy of greater punishment."

A death sentence will not be imposed unless each one of you decides that it should be.

A sentence of life in prison without the possibility of release sends Dzhokhar Tsarnaev to ADX. Now, we use those initials rather freely, like we know what it is. Administrative maximum prison in Florence, Colorado. We flung those initials around, but that's what ADX -- it's the administration maximum prison in Florence, Colorado. There was no dispute about that, that that's where he's going. And he will be under the SAM. He's under -- "the SAM," special administrative measures -- he will be under them. He's under them now. Warden Bezy and the prosecutor sort of scuffled over how long Dzhokhar may stay under the SAM and whether he'll get to write or receive letters. And the prosecution spent a long time telling you that it doesn't snow that much in Colorado and that there will be heat control in the rooms.

There's a concrete bed with a mattress on it and heat control and a pillow. And for some reason, there was great discussion about this being at the foothills of the Rocky Mountains. It doesn't much matter because Dzhokhar Tsarnaev's not going to see the Rocky Mountains. He won't have a room with a view, and they know it.

Let's get real. This isn't a club. This isn't a resort. This is the most rigid, punitive prison in America. It's a place where 29 men -- you heard the testimony about it -- 29 men vie for the privilege of cleaning the showers, and two get the job.

The same government that asked you to sentence Dzhokhar Tsarnaev to death has the power to cut him off from the world. The FBI and the U.S. Attorney in Boston will never be out of that loop. He is under the SAM. What is clear is that the FBI and the U.S. Attorney in Boston, the offices of the people sitting at this table, will decide how long he'll stay under SAM. I'm baffled by their argument.

Are they telling you that they -- you shouldn't trust them to provide protection and security, but you should trust them when they say that the justice that is required in this case is a sentence of death and execution?

No one's going to give you 100 percent guarantee that Dzhokhar will remain in the H unit at ADX forever. What is guaranteed is that the decision-makers, the offices of the folks sitting at this table, will be involved, and they are hardly softies on convicted terrorists. They know what they need to do. They know what's necessary to do. And they're in a position to know what's necessary to do.

And if, for some reason, Dzhokhar Tsarnaev gets off of H unit, the SAM unit, he's still going to be in isolation for the rest of his life. His mail, his phones, any visits that he may have will be strictly controlled and monitored. There will be no book. There will be no coded messages. There will be nothing.

There's no disputing that both punishment options in this that are before you are harsh and severe. With either of the options Dzhokhar Tsarnaev dies in prison. The question is when and how. We're asking you to choose life. Yes, even for the Boston Marathon bomber.

You might say, how can I do that? How can I ask you to choose life after all of the pain that he's caused? If this crime doesn't require the death penalty, what crime does? The question could be, why should he have the opportunity to live when he didn't give it to others? Why shouldn't he suffer as his victims did. Mercy? He didn't offer any mercy to his victims and to the people whose lives were ripped apart.

And all of those thoughts and those questions that I just ran through are completely understandable. They're driven by anger, emotion, disgust, fear, pain. Some of them might sound like they are based in vengeance. But really what they're based in is the search for fairness and justice.

There's nothing wrong with having those questions and searching in that way, but there is something wrong with thinking that the answer will be found in imposing the sentence of death. There's no punishment -- there's no punishment, not even a death sentence -- that could balance the scales. There's no punishment, even a death sentence, that could equal the impact on these families. And as David Bruck said to you in the opening of our part of the penalty phase, there's no even-ing of the scales. It can't be done.

A sentence of life in prison without the possibility of release is not a lesser sentences than death; it is an other sentence than death. It ensures that Dzhokhar Tsarnaev will be locked away in a bleak environment, in bleak conditions. He will have no fame, no notoriety. He will have no media attention. And if there are those that wish to make him so, he'll have no glory and stature that martyrdom could bring. His name will fade from the headlines. It will fade from the front page. It will fade from the inside page. It will fade from the news altogether. And those who so desperately no longer want to be reminded of him won't be.

A sentence of life in prison doesn't dishonor the victims in this case. It does not in any way minimize what happened and what was caused by his crimes. In closing argument in the first phase of this case, the prosecutor stood in front of Dzhokhar and pointed at him and said, and asserted to you, "What motivated his actions was an eye for an eye. You kill us; we kill you."

Even if you believe that that's who Dzhokhar was, even if you believe that that's who Dzhokhar is, that is not who we are. We can think and reason and decide what is best for all involved, not just what fulfills the need for vengeance and retribution.

Finally, a sentence of life in prison without the possibility of release allows for hope. If allows for the possibility of redemption and a greater opportunity for healing for everyone involved. It's a sentence that reflects justice and mercy. Mercy's never earned; it's bestowed. And the law allows you to choose justice and mercy.

I ask you to make a decision of strength, a choice that demonstrates the resilience of this community. We ask you to choose life and impose a sentence of life in prison without the possibility of release.

Thank you.