Pro Hac Vice

Lawyers like to come up with trial strategies for people they don’t represent. Best practice in this sort of exercise is to write your closing statement first. Here are a few of the high points of my hypothetical closing statement on behalf of Dzhokhar Tsarnaev.

My client may have told you he was following a higher law than the one we live under when he undertook this attack, but the fact is he was bound by no law at all. He has done nothing contrary to any obligatory law, and he has done nothing that you jurors haven’t implicitly endorsed.

It is an acknowledged fact and a part of the record in this case that officials of our government claim a license to kill those they deem enemies. There is no legal proceeding, no appeal, no escape for the enemies of these officials. Not only do these officials claim a right to kill enemies, they claim a right to use means so lethal that they kill innocents who happen to be close by.

Even though there is no law authorizing any public official to kill anyone, none of these officials has been held accountable for any of these killings, and none ever will be. Our president–who is charged with the execution of the laws and who is one of the officials who claim a license to kill–has pledged not to hold himself or anyone else accountable for killing of this kind. Logic dictates that if there is no obligatory law prohibiting those killings, there is no law prohibiting the killings at the Boston Marathon.

It’s not just laws that have been abandoned in the new order we have chosen for ourselves. Values have had to yield along with formal laws. We citizens have had ample opportunity to reject all this killing, and we haven’t done it. Morally, acceptance of murder makes us all accomplices. Our baby-killings are no secret. Our forces have bombed weddings, religious observances, funerals, rescues, and hospitals, all documented in bloody detail.

These acts amount to murder under any civilized code of values, and when the president of a republic like ours forbears to hold murderers accountable and engages in murder himself, and we do nothing, we abandon our values and make ourselves partners in crime. And so I challenge each of you jurors to ask, in conscience, how the killing of innocents at the Marathon differs from the killings of innocents we sponsor in Afghanistan, Iraq, Yemen, Somalia, Sudan and elsewhere? Can you condemn my client without also condemning yourselves?

My client is not unrepentant. He repents as a soldier repents for the wounds he’s inflicted. He mourns the dead and he commiserates with the injured, but he maintains that their sacrifice and his were in a good cause. You may have heard the expression, bringing the war home. Soldiers talk about it. If only people could see what killing is like, they wouldn’t do it. My client brought the war home. If you want to know what’s it’s like to live under the conditions we impose in parts of Afghanistan, Iraq, Pakistan, and Yemen, remember Boston on Patriots’ Day 2013. Suddenly, without warning, there’s an explosion and people are dead, blood and body parts scattered far and wide. Happens every day in some parts of the world, and you jurors and the rest of us provide the explosives. If this atrocity brings us any closer to ending our own atrocious misconduct, the price in lives lost and ruined in Boston will be modest.

You jurors may want to ask, when you consider retribution on behalf of the three people martyred for this cause, you may want ask yourselves how many more could have died in this attack. The bombs were placed where they would get attention but where they would cause the least injury. How bad was this crime, really? Three dead; two hundred hurt. People’s fun was spoiled. In the book of atrocities, this one ranks as relatively humane, and my client is as much responsible for restraint as for bloodshed.

My client’s acts were meant to send a message to us about us. He says his acts were the quintessential expression of our national character, and who on this jury can rebut him? He was made a citizen only a few short months before he committed these acts, and he committed them as a citizen, for his country, as he has said. Lives were lost, but that may be the price of change in times like ours. Waking our nation from our violence-induced stupor is a dirty job, but somebody had to do it.

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