As Boston prepared for Dzhokhar Tsarnaev’s trial, I tracked how jury selection was coming along, mostly to get a feel for when the trial would start. I thought, everything about this case up to now has been secrecy and show, which isn’t such an odd combination when you think about it. If you want to be the secret man behind the curtain, like the Wizard, you put on a good show. Concealment and stage management go together.
So I thought, that stuff has to end when the trial starts. Courtrooms have all these procedures, don’t they? Criminal procedures work against showmanship: for prosecutors, the point of the trial is to present evidence relevant to the case against the defendant. That is, at last we’ll find out why prosecutors think Dzhokhar Tsarnaev and his brother Tamerlan detonated two bombs near the Boston Marathon finish line on April 15, 2013.
Instead, the show goes on! Prosecutors opened not with evidence, or even reference to evidence, but with victim impact statements you would normally hear in the trial’s sentencing phase. Counsel for the defendant admits her client’s guilt on the first day, essentially clearing the way for the sentencing phase to begin right then. The smell from these moves is that prosecutors and defense counsel have an implicit understanding, to bypass the evidentiary phase to determine guilt or innocence, and proceed straight to sentencing. We should have expected it.
The big question for Boston at large, going into the trial, was not whether Dzhokhar Tsarnaev and his brother committed the crime, but whether Dzhokhar would accept a death sentence. This question took shape, even though the government presented virtually no evidence to show Tsarnaev’s guilt before the trial. They simply said he was guilty, with no reliable detail about the April 19 manhunt, the investigation that led to the indictment, the defendant’s motives, or anything else relevant to an actual criminal case.
It’s true that prosecutors did not have to try the case before the media during the last twenty-three months, as they expected to obtain a conviction no matter what they did. Still, I actually thought they would present some evidence against Tsarnaev during the trial, evidence we could compare with other, non-trial evidence. We could also evaluate prosecutors’ evidence against arguments and evidence presented by the defense. Now we learn, on the trial’s first day, that the proceeding offers no opportunity to evaluate evidence at all, as the two sides don’t plan to present any!
Unless this understanding between prosecution and defense breaks down, we are in for a highly predictable trial. We will hear only what participants decide they want to trot out from behind the curtain. I say trot out deliberately: we are in for a dog and pony show, not an adversarial proceeding to determine the truth. We will not hear about why the FBI murdered Ibrahim Todashev. We will not hear about why Craft International had its goons, I mean security personnel all over the finish line before the bombing, or why race officials announced repeatedly during the afternoon that a security drill would take place. We will not learn, from the defense or anyone else, why the whole scenario had the feel of a security drill that did not go exactly as planned.
Nor will we find out what the f**k happened on Friday, April 19. No connected, detailed narrative of that day – from its first event until its last – exists. We have the propaganda version, which is neither detailed nor connected. That’s it. No investigative reporter, local or national, will touch the events of that day. To take a simple question: it takes a number of days to organize the occupation of an entire city. Governor Deval Patrick, on Wednesday, April 17, announced in vague, let’s say veiled terms that something was going to go down soon. He didn’t say what it was, or when it would happen. When armed forces occupied the city on Friday, anyone would say, “So that’s what the governor referred to on Wednesday!”
We are not going to hear any of that. How prosecution and defense will fill their time during the next few months is hard to see. The defense admits guilt on the first day. The prosecution launches into its victim impact statements on the first day. The trial is done. You may wonder whether the jury will sentence Tsarnaev to death at the end, but this is Massachusetts, so even the ending appears pretty clear. Tsarnaev will go to prison, and his attorney can claim success.
Tsarnaev’s trial, however, will not be a success. It will not do what a trial is supposed to do. It will not reveal anything interesting about the case against the defendant. An adversary proceeding is supposed to accomplish just that: reveal evidence about the crime, and tell a believable story about whether or not the defendant is guilty. Even though the jury in the O. J. trial reached an incorrect verdict, and even though that trial – given the way it was covered – truly had showy qualities, the overall trial revealed interesting facts about he case. In Massachusetts, for Tsarnaev, trial participants have had almost two years to make sure that does not happen. At the heart of the Boston charade is the prosecution’s threatened death sentence. But for that, we might have had an interesting contest.