CRIME
03/30/2015 12:47 pm ET Updated Dec 06, 2017

Who Will Come To Tsarnaev's Defense? 'They Got Nothing,' Expert Says

Jurors in the Boston Marathon bombing trial saw photos of severed limbs and video showing Dzhokhar Tsarnaev standing behind children near the site of an explosion at the race. During almost four weeks of prosecution testimony, the jury also heard from a bicyclist who said he saw Tsarnaev leaning into the patrol car of a slain Massachusetts Institute of Technology campus cop.

Those were among prosecutors' strongest moments before resting their case on Monday. Now, it's up to Tsarnaev's defense to conjure a different image of the 21-year-old facing the death penalty for the 2013 attack that killed three people and wounded 264.

Tsarnaev has pleaded not guilty to the 30-count indictment, which includes charges of conspiracy to use a weapon of mass destruction and bombing of a public place. Seventeen of the charges are capital crimes that can result in the death penalty.

With Tsarnaev's lead attorney, Judy Clarke, blaming her client in opening statements for much of the mayhem that gripped greater Boston over four chaotic days, many wonder who his lawyers will summon as witnesses for the defense.

If Tsarnaev is convicted of the most serious crimes, the same jury will hear more witnesses from the prosecution and defense in a sentencing phase to determine if he receives the death penalty.

"It's always been a significant uphill battle for the defense," said Suffolk University law professor Chris Dearborn. "Their work is about sparing the kid's life rather than getting an acquittal."

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Footage shown by the prosecution during Tsarnaev's trial shows one of the explosions during the 2013 marathon in Boston.

Tsarnaev, along with his older brother Tamerlan Tsarnaev, 26, is accused of fatally shooting MIT police officer Sean Collier days after striking spectators at the race.

Options appear limited for the defense. Clarke said in her opening statement that Tsarnaev participated in the bombing because he was under the sway of his radicalized and violent older brother, who was killed during a shootout with Watertown police. U.S. District Judge George O'Toole, however, ruled that he'd limit testimony along those lines until the trial's penalty phase.

With that restriction in place, legal observers said they expected Tsarnaev's team to hint at the argument that Tamerlan coerced Dzhokhar, calling psychologists or health experts to testify that the younger brother had personality deficiencies or even mental illness.

"What else are they going to do? They got nothing," said George Vien, a former assistant U.S. attorney in Boston who's now in private practice. "They're really not challenging the defendant's guilt. They'll get in evidence of what kind of bad guy the older brother was so that [Dzhokhar] had reason to fear him."

It's unclear whether Tsarnaev will testify in his own defense.

“It’s very dangerous to put any defendant on the stand," said Boston University law professor Karen Pita Loor. "There would be an amazing opportunity for prosecutors to cross-examine him, but ultimately it’s his decision. That’s one of his decisions that the lawyers can advise him about, but ultimately it is going to be his decision. He has an absolute right to testify.”

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Jurors saw this image on March 30, 2015 showing Dzhokhar Tsarnaev in a white hat standing near Martin Richard, the 8-year-old killed by a bomb at the 2013 Boston Marathon, and the boy's family.

Seated at the defense table, Tsarnaev's body language has been tough to read. He frequently has slouched and stroked his goatee. He often avoided eye contact with witnesses. He looked intently, however, at his former best friend Stephen Silva, who testified about giving a Ruger pistol to Tsarnaev that prosecutors said was used to kill Collier, the police officer.

The prosecution called 92 witnesses for its case. Tsarnaev's attorneys have not responded to HuffPost's inquiries, and their list of potential witnesses is sealed. It's likely they'll put far fewer people on the stand.

Originally, some predicted the trial could stretch into June. But it's progressed rapidly, with the defense declining to cross-examine many witnesses, such as those maimed by the bombing.

Calling witnesses now to challenge Tsarnaev's guilt may backfire for the defense, according to Vien, who said Tsarnaev's lawyers instead should focus on creating a sympathetic portrait of their client for the sentencing portion.

"It would enhance the defense team's credibility to acknowledge the obvious -- that he's guilty," Vien said. "It would avoid the chance of a juror feeling resentful that his or her time is being wasted. They have lives. They have families. I suspect that at least a couple of them are thinking, 'Why are we doing this if there's no question of guilt?'"

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