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Admitting Your Client’s Guilt In Your Opening Statement: Crazy or Brilliant?

You may have heard that recently Dzhokhar Tsarnaev’s attorney, Judy Clarke, stated “It was him” in her opening statement at trial thereby admitting his guilt in the Boston Bombing.  (Click here for article).  So, is she crazy?  Not so fast.

Clarke’s goal in this trial is not an aquittal.  Her goal is to get her client sentenced to life in prison instead of the death penalty.  Anticlimatic? Maybe.  However, the government’s evidence is overwhelming.  They have video evidence of Tsarnaev placing the bomb on the ground, explosive materials recovered from the vehicle he was driving, incriminating admissions, and not to mention the gun battle in the middle of a residential street.  Not guilty is not an option.  Clarke knows that.

Clarke is going for a more practical approach.  Clarke will argue that this case is not about who did it, but why did he do it?  She will argue that her client was strongly influenced by his older brother.  Why is this important?  When a judge or a jury considers a death sentence in a criminal case, they must consider mitigating and aggravating factors.  Under federal law, there are two mitigating factors that could save Tsarnaev from the death penalty.  First, the jury can consider the fact that the Defendant had an “impaired capacity”.  In other words, the Defendant’s capacity to appreciate the wrongfulness of his conduct was significantly impaired due to his brother’s influence.  Second, the jury can consider that the Defendant was under “unusual and substantial duress”.  Both of these mitigating factors can be considered in voting against the death penalty even if the evidence is not strong enough to constitute an actual defense to the crime.

This is not the first time a criminal defense attorney has admitted their client’s guilt at trial. This is actually a common strategy that is used by defense attorneys to try to get their clients convicted of less serious crimes.  For example, imagine that a defendant is charged with Aggravated Assault with a Deadly Weapon for throwing a beer bottle at another person.  If the prosecution had the incident on video, had six credible witnesses, and there was no valid self-defense claim, not guilty would be a very unlikely result.  Therefore, an experience criminal defense attorney might argue that his client is guilty of Simple Assault, rather than Aggravated Assault, because the beer bottle does not constitute a deadly weapon.  In Florida, Aggravated Assault with a Deadly Weapon is a 3rd degree felony punishable by up to 5 years in the Florida State Prison while Simple Assault is a 2nd degree misdemeanor punishable by up to 60 days in jail.  This argument makes the attorney look more credible to the jury and his client could be convicted of a less serious charge.

Will Clarke’s strategy work in this case?  Probably not.  While Clarke’s strategy is not as crazy as you may think, the allegations in this case are unthinkable.  Tsarnaev allegedly used a weapon of mass destruction to kill 3 and injure 264 innocent people.  He then allegedly killed an unsuspecting police officer in cold blood.  He allegedly exchanged gun fire with police in the middle of a residential street.  If you believe in the death penalty, this is the type of case it was intended for.  “My brother made me do it” won’t work this time.

Disclaimer:  Please note that by reading this blog you are not entering into an attorney-client relationship with Hubbs Law, P.A. This blog only provides general legal information.  Every case is different and you should request a free consultation to ensure that you are getting the correct legal advice for your specific case.


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