Dzhokhar Tsarnaev surprised many observers, myself included, when he addressed the court on Wednesday, June 24th, toward the end of a hearing that was going to conclude with Judge George O’Toole imposing the death sentence. Many have speculated as to why Tsarnaev chose to speak his piece during the one phase of the case in which his allocution could make no tangible difference on its outcome. The die was cast, the trial was over.
After all, Tsarnaev did not testify during the pre-trial hearings on his motion to change the venue and move the trial out of Boston in order to obtain a more dispassionate jury. Nor did he testify during the guilt-or-innocence phase of the case (presumably because his lawyers had already conceded his guilt).
More consequentially, he also refused to testify during the sentencing phase, where he could have engaged in an attempt to convince the jurors that he had sufficient redeeming human value so as to avoid the ultimate penalty. After all, he only had to gain the sympathy of a single juror to avoid death by execution. (A divided jury would have resulted in a sentence of life-without-parole.)
Having thus refused to speak to the court when his words might have had some demonstrable impact on his case, some have suggested that Tsarnaev’s motivation was to express genuine remorse. While his remarks tell me that he was in some way sorry for the damage and misery caused by his actions, I got no sense that he was apologetic for having committed the act itself. Likely inspired by religious “obligation” as well as solidarity with his older, dominant and fanatical brother, Dzhokhar never offered quite the apology that some had hoped he would.
Of what value, therefore, was his address to the world? As I pondered this question, another high-profile, national security federal prosecution came to mind, that of convicted Soviet spies Ethel and Julius Rosenberg.
Arrested in the summer of 1950, and tried the following year in New York City for violating the Espionage Act of 1917, the Rosenbergs were sentenced to death by U.S. District Judge Irving Kaufman on April 5th, 1951. (In that case, unlike Tsarnaev’s, the sentence was the judge’s decision.)
Virtually on the eve of the Rosenbergs’ original scheduled execution date – June 18th, 1951 –a lawyer named Fyke Farmer, who was not counsel-of-record for the Rosenbergs, on his own accord filed with the Supreme Court an emergency motion to postpone the execution in order to consider a novel legal issue that had not been raised earlier by any of the Rosenbergs’ attorneys. Farmer placed before the court a question, the answer to which could have saved the Rosenbergs’ life by limiting the maximum sentence that the applicable law allowed for their conduct to life imprisonment.
Farmer’s reasoning was elegant if not entirely simple. He pointed out to the Court that by the time the Rosenberg’s were indicted for espionage, Congress had enacted another national security statute, the Atomic Energy Act of 1946, under which the couple should have been prosecuted. The conspiracy between Julian Rosenberg and his wife Ethel was alleged to have occurred between 1944 and 1950. Farmer argued that because the activities of the Rosenbergs fit snugly within the conduct outlawed by the Atomic Energy Act, which was aimed at protecting atomic secrets, this more specific and more recent statute rather than the more general and older Espionage Act covered their alleged criminal conduct.
Farmer argued further that under the controlling Atomic Energy Act, a death sentence would have had to be imposed by the jury (much as was the case in Tsarnaev). In the absence of a jury verdict of death, Judge Kaufman would have been without power to impose a sentence harsher than life in prison. Thus, argued Farmer, the upcoming execution of the Rosenbergs would have been a lawless action.
With the Supreme Court in recess for its summer vacation, there was no sitting justice available in Washington to deal with Farmer’s emergency petition. And so, under established Supreme Court procedure, Farmer was allowed to conduct a search for any justice on the court who might be available to hear the emergency motion. Farmer wisely chose the famously liberal Justice William O. Douglas. Justice Douglas read Farmer’s petition and quickly issued a stay of execution. At that point, under normal procedure, each side would have had an opportunity to fully brief the issue, and oral argument would have been scheduled for October, when the Court was to resume its normal schedule.
In an unexpected move, at the behest of the Department of Justice, Chief Justice Vinson convened the court in an extraordinary summer session held on June 18th, 1951. With a majority vote of 6-3 in favor of the prosecution and against Farmer and the Rosenbergs, the stay was vacated. The Rosenbergs were executed the next day, on June 19th.
Justice Felix Frankfurter, the former Harvard Law professor considered one of the top legal scholars then sitting (or, indeed, ever to sit) on the high court, wrote a cogent, and in its own way blistering dissent – a dissent issued after the execution of the Rosenbergs. Why had Frankfurter bothered to write and issue an opinion after in some sense it no longer mattered? Justice Frankfurter explained in his penultimate paragraph:
“To be writing an opinion in a case affecting two lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain.” (emphasis added.)
And so we have now heard Dzhokhar Tsarnaev tell something of his thinking, and of his feelings such as they are, after having inflicted unimaginable pain and suffering on scores of innocent victims. We have heard him, and his words will be entered into the annals of infamy, and history. But his words may also help us, as a city and a society, to engage in “sturdy self-examination and self-criticism” when exercising the power of mandating death, as was done by the Tsarnaev jury, and then formalized by Judge O’Toole, in all of our names, on June 24th at the federal courthouse in Boston.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is a regular contributor to wgbhnews.org.
