Dzhokhar Tsarnaev Is Smart to Plead Not Guilty

Why the alleged Boston Marathon bomber’s plea is not as crazy as it may seem.

After a two-day blizzard intermission, Judge George O’Toole resumed interviews this week with potential jurors in the Dzhokhar Tsarnaev trial. After 12 jurors and six alternates are selected from a pool of about 70 qualified jurors, opening arguments in the trial will begin.

It’s unclear when exactly that will happen. Jury selection, or voir dire, is taking more than four times as long as originally planed. Opening arguments were initially scheduled to begin on Monday, January 26, and the court has not provided an updated timeline on when they will actually start. But when arguments do finally get underway, the jury is widely expected to deliver a guilty verdict to some—if not all—of the 30 charges against Tsarnaev.

Granted, theoretically there is a chance the defense will turn the government’s narrative on its head. Tsarnaev’s family and a small, vocal community of supporters believe he was set up. But even his defense attorneys have called those assertions “outrageous conspiracy theories” and have asked for the “self-appointed ‘supporters’” to be barred from protesting outside the John Joseph Moakley Federal Courthouse.

Meanwhile, prosecutors say they have video footage of Tsarnaev placing a homemade bomb on Boylston Street near the Boston Marathon finish line, and Tsarnaev allegedly confessed in a hand-written note inside the Watertown boat where he was located after the manhunt.

Still, Tsarnaev is pleading not guilty to all charges. It’s not uncommon for defendants who are charged with monstrous crimes—even with mountains of evidence against them—to plead not guilty in hopes of securing a deal. Tsarnaev’s attorney Judy Clarke is famous for securing plea deals for clients facing the death penalty. In the weeks ahead of the trial, federal prosecutors and Tsarnaev’s defense team reportedly sat down for talks about a possible plea arraignment, but never reached a deal.

Without a deal, former federal prosecutor George Vien says he’s surprised Tsarnaev is pleading not guilty. “Oftentimes people will plead guilty in the guilt phase and then try to use that as a mitigating factor that they’ve accepted responsibility and have remorse for what they did,” Vien says.

Vein prosecuted Gary Lee Sampson in one of the rare federal death penalty cases tried in Massachusetts. Sampson was convicted and sentenced to death for carjacking and murdering three people in 2003. Veteran attorney Robert Sheketoff defended Sampson, and says he tried to use his client’s guilty plea in mitigation.

“That didn’t work out so well,” says Sheketoff.

But pleading not guilty may still help in the sentencing phase indirectly. Sheketoff says letting jurors convict the defendant and side with the government in the guilt phase may make the jurors more willing to side with the defense and spare Tsarnaev’s life in the sentencing phase.

Tsarnaev’s plea may be strategic for another reason, too. Because of the plea, O’Toole, faces the challenge of seating a jury that’s open-minded not only about sentencing him to death, but who can presume his innocence as well.

His attorneys are persistent in arguing that the trial should be delayed and moved out of Boston. They say a jury selected from the region a defendant is accused of attacking will almost certainly be biased. A not guilty plea gives this argument a lot more weight.

In the defense’s third and most recent change-of-venue motion, Tsarnaev’s attorneys argue that, of the nearly 1,400 potential jurors who filled out a questionnaire in the first phase of jury selection, 68 percent said they already made up their mind about his guilt. Judge O’Toole has yet to rule on this latest motion, even though he’s struck the previous two down.

But even if Tsarnaev’s attorneys can’t move the trial out of Boston, down the road, pleading not guilty will build a better argument for appeal than if his attorneys only argued to spare his life.

“When you have an untryable case, one of the things you’re trying to do is create an error,” says Sheketoff. “If you create an error, then a few years down the road, there might not be such a taste for blood.”

Sheketoff would know: Sampson is due to be retried in February, after it came to light in a 2011 motion for a new trial that a juror on his original trial had lied on a questionnaire more than 12 years ago.