James Holmes Trial Begins Over Aurora Theater Shootings

There will be two people fighting for their lives in court this week: James Holmes, the Aurora Shooting suspect who has pleaded not guilty by reason of insanity, and Dzhokhar Tsarnaev, whose defense team will start their case for life. Both begin Monday morning.

I'm curious to see what witnesses the defense will call for Jahar. I'd like to see his friend Junes Umarov testify for him. I'm sure they've canvassed the friends and neighbors for anyone who can say Tamerlan dominated him and he did whatever he asked. I think we may see some teachers in the early grades, a sports coach, and some high school friends to say this was all out of character from him.

According to one lawyer not involved in the case, these are the witnesses he expects:

These include Mr. Tsarnaev’s youth, since he was 19 at the time of the bombings; his rootless family and the powerful influence of Tamerlan, who was killed during a shootout with the police; and the idea that a lifetime spent at the United States Penitentiary Administrative Maximum Facility in Florence, Colo., which is known as ADX and is the nation’s toughest federal prison, would be hellish and perhaps worse than death.

Mr. Hoose said the defense team might also try to suggest to jurors that if they sentence Mr. Tsarnaev to death, they risk making him a martyr.

I think he left out a critical one: The friends who will testify he was an average teen, interested in teen type stuff and not preoccupied with politics or religion until Tamerlan went in that direction, and "converted him." The theme all along has been Jahar is a follower, Tamerlan is a leader.

I haven't been that interested in Holmes' case. It's about his mental state and we'll hear opposing theories from the dueling experts. I'll be more interested in following the penalty phase, assuming it gets there. What would be better is if the USA in Mass. showed up tomorrow and took the death penalty off the table..

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    I sure hope it was out of character (none / 0) (#1)
    by Jack203 on Mon Apr 27, 2015 at 09:39:33 AM EST
    Is there any chance Tsarnov can apologize and say he regrets what he did?   Even if you hate the US, you have to be pretty evil to not show any remorse after seeing the victims in this case.

    If he could apologize, that would go a long way.  Certainly more than any character witnesses.  If he can't even show remorse to the evil he caused, why would we care about his character witnesses?

    Even with no remorse, I personally would vote No on death.  But I'm not sure the jury will.

    Can he? (none / 0) (#2)
    by Reconstructionist on Mon Apr 27, 2015 at 10:51:13 AM EST
      Yes, he has an absolute right under the 5th Amendment to testify in his own defense (it's a reverse extraction from "nor shall be compelled in any criminal case to be a witness against himself")

      A defendant is also entitled to a jury instruction informing the jury that no adverse influence should be drawn from exercising the right "to remain silent."

      It would be extremely risky to put him on the stand.  First, there is no question proper cross-examination would include any questions related to his credibility (impeachment).

      Second, although Rule 611 FRE states, in part:

       (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.

       The commentary touches on the specific instance of a criminal defendant testifying, noting scope is a constitutional not rules issue:

    The rule does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege against self-incrimination. The question is a constitutional one, rather than a mere matter of administering the trial. Under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), no general waiver occurs when the accused testifies on such preliminary matters as the validity of a search and seizure or the admissibility of a confession. Rule 104(d), supra. When he testifies on the merits, however, can he foreclose inquiry into an aspect or element of the crime by avoiding it on direct? The affirmative answer given in Tucker v. United States, 5 F.2d 818 (8th Cir. 1925), is inconsistent with the description of the waiver as extending to "all other relevant facts" in Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See also Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The situation of an accused who desires to testify on some but not all counts of a multiple-count indictment is one to be approached, in the first instance at least, as a problem of severance under Rule 14 of the Federal Rules of Criminal Procedure. Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Cf. United States v. Baker, 262 F.Supp. 657, 686 (D.D.C. 1966). In all events, the extent of the waiver of the privilege against self-incrimination ought not to be determined as a by-product of a rule on scope of cross-examination



    Judy Clarke was profiled on an NPR show (none / 0) (#4)
    by Mr Natural on Mon Apr 27, 2015 at 11:21:10 AM EST
    last week.  (The Show: HereandNow) and the Transcript.  The Clarke piece begins about 3/4 of the way down the transcript.  Not very complementary of Clarke, at least if you see Ted Kaczynski's point of view.  He wanted to die.  Clarke maneuvered him into accepting an unconditional guilty plea, meaning no appeals were possible - or she would plead insanity.  Since he had been certified paranoid schizophrenic, she may have been able to do this without his consent.  The judge abetted her behavior by refusing to allow her firing by Kaczynski.  Now "Teddy" spends every day in America's Federal Dungeon, the ADX.  While cleaner than traditional movie dungeons, the argument can be made that traditional dungeons are in one respect better.  In traditional dungeons, the victims usually have company.  Only a few wealthy nations can afford the luxury of all-solitary confinement he$$holes.

    In other words, Clarke won, Kaczynski lost.


    I understand that the Prosecution's (none / 0) (#3)
    by NYShooter on Mon Apr 27, 2015 at 11:08:58 AM EST
    closing was extraordinarily moving, and powerful.
    Witnesses to the trial claim the jury was visibly stunned in their collective grief.

    My guess is that, at this moment, the Jury hates this kid's guts.

    Whether he testifies, or not, isn't as important at what form of punishment would hurt him more. If the jury senses he'd rather die, and be martyred, they might just give him LWOP. Psychologically, the jury may want to take an affirmative, positive step in punishing Tsarnaev, rather than just, submissively, accepting the prosecutor's desire.