When I look at Dzhokhar Tsarnaev in court, I hear my mother’s voice.
“Sit up straight.”
“Get your hair out of your face.”
“Stop fidgeting.”
“Can’t you smile once in a while?”
At a time when Tsarnaev should be making a good first impression on the people who will judge him and, perhaps, decide whether or not to spare his life, the 21-year-old accused Boston Marathon bomber is coming across like a sulky teenager sitting in after-school detention.
He slouches in his chair with his head bowed. He doesn’t look potential jurors in the eye as they talk about how they think he’s guilty and whether he’s worth saving. He seems really depressed as I watch him on the closed-circuit video feed of the proceedings inside Courtroom 9 of the John Joseph Moakley federal courthouse.
My colleague, CNN producer Sonia Moghe, has watched Tsarnaev from a seat inside the courtroom. In person, she says, he just looks bored.
His hands are in constant motion. He thumbs through court papers but doesn’t pause long enough to actually read them. He grooms his eyebrows and beard with his fingers. He runs a pen through his unruly curls, using it as a comb. He flips through a square of Post-Its and plays with it, tossing it, twirling it, coddling it in his hand.
This kid desperately misses his smartphone.
Whoa! His infamous tweets and texts from April 15 to 18, 2013, come rushing back:
“Ain’t no love in the heart of the city. Stay safe people”
“I’m a stress free kind of guy”
“If yu want yu can go to my room and take what’s there”
Tsarnaev scribbles on a legal pad and doodles on a paper cup, and I flash back to the words left behind on the sides of that boat in Watertown. Some people call it a confession — or a manifesto:
“The U.S. government is killing our innocent civilians.”
“I can’t stand to see such evil go unpunished.”
“We Muslims are one body, you hurt one you hurt us all.”
“Now I don’t like killing innocent people, it is forbidden in Islam but due to said (illegible) it is allowed.”
“Stop killing our innocent people and we will stop.”
A case built on powerful images
Images have always been a big part of this case. One of the three people killed in the bombing was 8-year-old Martin Richard, and a haunting photo of him went viral in the days after his death. In it, Richard holds a bright blue poster decorated with hearts and the words: “No more hurting people.” He made the poster for a school project about a year before he was blown apart by a pressure cooker bomb Tsarnaev allegedly dropped off in a backpack near the marathon finish line.
It’s one of those thoughts that haunts you: Did one boy die at the hands of another even though their message was the same?
We mourn the boy lost, and video of his violent, premature death is likely to be played over and over again in court. I dread viewing it, and I know I will cry when that day comes. But is it any wonder that some people are struggling during jury selection with the notion that their government is asking them to endorse the death of the other person? Will an execution really fix anything, they ask.
The indictment cites Richard’s tender years as reason to condemn Tsarnaev to death. But the defendant’s own youth — he was 19 at the time of the bombings — could give a juror reason enough to spare his life. And that’s all it would take. Just one juror.
When Tsarnaev’s tousle-haired, softly lit selfie wound up on the cover of Rolling Stone magazine, it stirred a national uproar — and huge newsstand sales. Then an outraged Massachusetts State trooper leaked unglamorous photos of the bloodied “rock star.” They showed a bowed, beaten Tsarnaev, police lasers targeting his forehead, as he surrendered in Watertown.
“I hope that the people who see these images will know that this was real. It was as real as it gets,” Sgt. Sean Murphy posted on Boston Magazine’s website. True, it wasn’t glamorous. But for me, the move backfired. Those photos marked the first time I felt any compassion for the 19-year-old bombing suspect.
‘Neanderthal puppy’
And now comes the trial. Unlike defendants at other terror trials, Tsarnaev has not shouted praise to Allah or death to America — at least, not so far. He is more like the children of the people who sit in judgment of him than the people they fear most.
He is taller, leaner, more angular now. But he still looks very young, and very lost, even though cameras are absent and the courtroom sketch artist makes him appear to be a cross between Rasputin and Abraham Lincoln.
He is neither Rasputin nor Lincoln. Some would argue he’s just a screwed-up punk.
“He looks like an impressionable, Neanderthal puppy,” said CNN legal analyst Mark Geragos. “Most people who have raised teenagers have sat across a table from this kid.”
Tsarnaev barely interacts with anyone, except his female jury consultant and the two women on his legal team. On a rare occasion he chats with them or appears amused by something a juror says. But for the most part, his expression is blank.
Known to his friends as “Jahar,” Tsarnaev is in big trouble, and he seems to know it. But is he sorry? Does he even care? His body language offers few clues, and those clues can easily be misread.
One of the top experts in body language thinks Tsarnaev is already putting himself at a disadvantage.
“Even during jury selection, these people are being told something by how the defendant sits, how the attorneys sit,” says Joe Navarro, a former FBI agent who literally wrote the book — “What Every Body is Saying” — on how to read body language in the courtroom and at the poker table.
“He’s acting as if he wasn’t interested in his case. It doesn’t matter what he’s thinking but what he’s showing,” Navarro adds. “Jurors may be thinking, ‘If he doesn’t care about this case, why should we care about this case?’ “
Tsarnaev should at least pretend to be part of the process, even if he feels helpless, Navarro says. He should take notes and pass messages to his lawyers.
“His attorney should talk to him about his role in perception management. He has a role: At the minimum, don’t put off the jury. Don’t do anything that will fulfill their bias. He can start negatively affecting the jurors even before the trial starts.”
Those jurors are already strongly biased against him, the defense says in court papers. That argument seems to be borne out by what many prospective jurors are saying in open court: He’s guilty; show me otherwise. Never mind that it is a cornerstone of our legal system that a person is presumed innocent until proven guilty.
Reading the body language
As important as his body language may be Tsarnaev’s courtroom fashion statement. Trial watchers and legal eagles agree that at a trial, clothes can make the man.
Or the boy.
Erik and Lyle Menendez, two Beverly Hills brothers accused of the shotgun slaying of their parents, were turned out in pastel tennis sweaters at their murder trials. The defense repeatedly called them “the boys.” They were convicted, but the jury voted for life in prison rather than death.
Tsarnaev wears dark sweaters on most days, or a sports jacket and dress shirt with an open collar. He tends toward grays and other dark neutrals. I’d call his style preppy casual.
“In court I’d want him in a navy blue suit. It makes a big difference,” Navarro says. “I’d want him wearing a white shirt, because to jurors white is the color of purity.”
Navarro offers an interesting explanation for the lack of eye contact. It’s cultural, he says. Many in the African-American, Arab and Muslim communities consider it disrespectful to make eye contact with people in authority.
“It’s a big cultural thing,” he says. “In many cultures, you don’t look superiors in the eye. Americans often read this as dishonesty. Bowed head — that’s not what you’re supposed to do when you’re confident of your innocence. But it is what you do in these cultures when you are confronted by authority.”
It can be a huge barrier, even for someone like Tsarnaev who was acclimated to mainstream American culture.
“In American culture an averted gaze and eye avoidance are perceived as guilt: ‘I’ve been naughty. I’m ashamed. I’ve been up to no good.’ It’s very powerful and you have to factor it in as part of your message,” Navarro says.
And then there’s the fidgeting and self-grooming, which a Boston Globe reporter recently described in a tweet as “pawing.” Navarro sees it as a pacifier. This kid is stressed, he says. He’s trying to calm himself.
“You see a couple of things: youthful indifference with some self-comforting,” he says. “Touching his face, those kind of behaviors are social pacifiers. It helps him deal with the stress. Everyone does it to cope with the normal anxiety of day-to-day living.”
I find myself wondering if he still suffers from the injuries he received when he was captured. A scar runs behind his ear and down his neck. His lawyers said in court papers that the base of his skull and bones in his jaw and neck were shattered by bullets. He was intubated and nearly died before surgery to repair the damage.
What little information is available to the public in the voluminous court file does not address whether he sustained any lasting neurological damage.
Tsarnaev will have to stop “pawing” at himself and fidgeting once the trial starts, body language expert Navarro says, unless the defense strategy is to “infantilize him and portray him as lost to the world, someone who will go wherever the stream takes him.”
In fact, Geragos says, that may be the best play the defense can make: to portray its client as an impressionable kid heavily influenced by his older brother, who died in a gunbattle with police a few days after the bombings.
For some clients, he adds, coaching only goes so far.
“I think if they’ve had to school him to some degree and if it hasn’t worked, then they have to work with what they have,” Geragos says. “They understand they’ve got to play the case they’re dealt with. So they’re going to show and embrace what he is.”
That may prove difficult when the jury is shown disturbing images of the carnage caused by the bombs.
“When the graphic stuff comes, jurors are going to be looking at his reaction to everything,” Navarro says of Tsarnaev. He could come unglued, especially if prosecutors display graphic images of his brother’s demise.
“You may see him crumble into an embryo position, crossing his arms across his chest in a self hug, bringing his knees up,” Navarro says. “That’s unfortunate but probably to be expected of somebody his age.”
Federal prosecutors have warned jurors they will be shown images of a dying Martin Richard. It will be horrific.
Some who can’t bear to watch may end up looking at Tsarnaev instead. It could be the single most important moment of his life.
No cameras are allowed at the Tsarnaev trial. But CNN’s Ann O’Neill will be there every day. Think of her as The 13th Juror, bringing insights here weekly. And follow @AnnoCNN on Twitter daily.
