The Lawfare Perspective: An Explorative Research. The Boston Bombings trial analyzed

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The Lawfare Perspective: An Explorative Research

The Boston Bombings trial analyzed

Student: Pim Bazuin Student number: s0942405 Track: CSM September 2014 Intake Instructor: Jelle van Buuren & Liesbeth van der Heide 15/12/2015 Wordcount: 20528

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Chapter 1: Introduction

The threat of terrorism has become an everyday news item all over the world again now that Islamic State (IS) captured a big part of Iraq and Syria. This Islamic group wants to create a caliphate, which is a state based on Islamic law, and has enforced their religious ideology in large parts of Iraq and Syria1. This causes not only a big flow of refugees but also a rise in the threat of terrorism, with the possibility of hidden terrorists among the flows of thousands of refugees. These developments causing even more attention for this terrorist threat. The big number of refugees causes chaos at European borders, which make it easier for terrorists to hide among them, disguised as a refugee2. This chaos is exactly what terrorists want, as one of their goals is causing fear3, not only by direct attacks but also through the threat of infiltration (and subsequently the possibility of a domestic attack). For example the attack on a British soldier in London in May 2013, where two terrorists attacked and killed a British soldier that was off duty. This attack has far more consequences than just a dead soldier. It generates a lot of the media and generates widespread fear, that terrorist can hit anyone, anytime they want4_.

But not only the terrorism threat increases, also the number of terrorists getting arrested and the number of terrorists brought to court is has been rising in Europe. An example where this rise is seen is the United Kingdom, where in a year from March 2014 till March 2015, 299 terror suspects have been arrested5. As a result this has lead to a rise in terrorism related trails in courts. This rise also raises the attention to terrorism trials. It is therefore essential that the dynamics of terrorism trials are understood in a proper way. The risk of a trial becoming a platform that terrorists can use to spread their ideology, in order to recruit or persuade even more people to radicalize or become a terrorist, has to be understood. When the trial is used by a defendant to spread their message, the trial can turn into a show trial. Not only the defendant can use the trial as a platform, states can also use the trial to spread a message .This can be a show trial in a Stalinist way, where the trial is a tool of a regime to get rid of their political enemies and send a message to the public, but it can also mean a show in a positive way, where the trial is a show of justice (Allo 2010, 42).

A good example of a defendant attacking the legitimacy of a government in a trial was the case in the Karadzic trial. Radovan Karadzic is one of the former Bosnian Serb leaders who stood trial for

1 http://www.bbc.com/news/world-middle-east-29052144 2 http://www.telegraph.co.uk/news/worldnews/europe/11863978/Europe-is-at-risk-from-incredibly-cruel-Isil-2 http://www.telegraph.co.uk/news/worldnews/europe/11863978/Europe-is-at-risk-from-incredibly-cruel-Isil-warns-Pope-Francis.html 3 http://www.terrorism-research.com/goals/ 4_{http://www.theguardian.com/uk/2013/may/22/woolwich-two-shot-in-police-incident-live-coverage} 5 http://www.bbc.com/news/uk-34206326

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crimes against humanity and genocide in The Hague6. In this trial Karadzic stated that his actions were based on self defense, against the foreign supported Bosnian population (Meijers & Glasius 2013, 739). This shows that a certain trial can differ from an ordinary trial, because there is more at stake than just fact finding and deciding whether the suspect is guilty or not, it can become a political debate about good and wrong, perceptions and victors justice. In this way trials can be seen as a continuation of the political conflict between states and the defendant, this continuation of political conflict can happen in terrorism trials as well.

With such political conflict in our mind, it is essential to understand the dynamics of terrorism trials, to search for different strategies both the prosecutor and the defendant uses or can use, in order to prevent not only the possibility of a terrorism trial becoming a show trial, but also to better prepare the state for the chance that a terrorist will use the trial as a theatre to spread his message. By better understanding the dynamics of a terrorist trial, the prevention of giving a terrorist a stage to spread his message can be enhanced. This is of huge importance because with many young people feeling attracted by radical Islam nowadays7, a terrorist spreading his message in court to those already attracted by radical Islam can be influenced to radicalize even more. It is in society’s benefit to prevent this influence, which can be the final push or a confirmation for youngsters of their ideas, with the risk they will embrace violence and for example travel to Syria or get inspired to carry out domestic attacks.

Terrorism trials are thus the main focus for this thesis. This thesis consists of a research of terrorism trials from a lawfare perspective. This is interesting because from a lawfare perspective, the role of the trial is not only to decide the course of events and if the suspect is guilty or not. Instead a lawfare perspective assumes that the trial can be used to spread a message, sometimes politically driven, to the public, in other words, that the trial can turn in into a show trial with all the possible side effects that are described above.

Lawfare can be defined as the use of law, or the abuse of law for strategic ends. The lawfare perspective is not a coherent theory but a conceptual lens that can be used to look at (terrorism) trials. Over time the definition of lawfare has evolved. For example the term lawfare can also be described as the use of law as a weapon of war (Dunlap 2010, 5). For now, the (ab)use of law for strategic ends is used as the definition for lawfare. In chapter two the different definitions are explained. 6 http://www.theguardian.com/world/2014/oct/01/radovan-karadzic-war-crimes-trial-no-ethnic-cleansing-bosnia 7 http://nationalinterest.org/feature/the-ultimate-fatal-attraction-5-reasons-people-join-isis-11625

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The goal of this thesis is to find out if the lawfare perspective is useful to look at terrorism trials and therefore this thesis is classified as an explorative research. To achieve this goal we look at one particular terrorism trial and try to discover strategies used by actors in the terrorism trial and how these actors try to influence target audiences.

The case that is used in this thesis is the case of the Boston Marathon Bombing. The attacks on the Boston Marathon took place the 15th of April 2013, two bombs detonated near the finish line of the Boston Marathon. The two persons who placed the bombs were Dzhokhar and Tamerlan Tsarnaev, two brothers who lived in the United States of America but originated from Russia, Chechnya. Tamerlan, the eldest brother died in a firefight with the police whereas Dzhokhar Tsarnaev got arrested later. Subsequently, this trail revolves around Dzhokhar Tsarnaev and is interesting for several reasons. First, there has been extensive coverage of this case in the media, both before, during and after the trial. This is important to be able to research the impact the message of the parties has on their target audiences in the different phases of the trial as we do not only want to get hold on possible strategies, we also want to see how those strategies can affect target audiences. Second, the Boston Bombing is an interesting case because it took place in the United States of America. This country uses a jury system for trials, which possibly changes the dynamics of a trial in comparison with European terrorism trials where no jury is used in courtrooms. Last, from a practical perspective, this case is selected because the availability of court transcripts of the Boston Bombings, especially in the preparation phase of the trial, which gives us access to primary documents of the case used in this thesis. The use of primary documents for research is a reliable way to get information about the case.

Given this introduction that gives us an idea of the importance of understanding the dynamics of terrorism trials, the dangers of a show trial and an rough idea of the lawfare perspective, the main question of this research is formulated as follows: How do the two main stakeholders, in a terrorism

trial use the law and legal systems to continue their political dispute and achieve their goal of convincing their target audiences of their vision of justice/injustice?

This question builds on the assumption that actors in a terrorism trial is likely to have some strategy they use in the courtroom to influence target audiences. Even if this is not the case, the actors can still try to spread some ideas or messages to the public. The main research question is split up in three sub-questions:

1. Do the two main actors in a terrorism trial use underlying strategies in court? 2. What are the main strategies of these main actors in a terrorist trial?

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This thesis is structured as follows. The next chapter consists of a theoretical review, where relevant concepts like a terrorism trial and lawfare are discussed. Another relevant concept that is described is the concept of a show trial. In chapter three the methodology and the explorative character of this thesis are described. The collection and presentation of the data used in this thesis are explained in the methodology as well. After the methodology is described, the case is introduced and the timelines of both the attacks and the trial are described in chapter four. Chapter five presents our findings of the research. This includes research on the trial and the preparation phase of the trial, but also includes the research on how the message impacted target audiences. Chapter six consists of a conclusion with interpretation of the research results and a discussion; this includes the

interpretation about how useful the lawfare perspective is to look at terrorism trials and the possible need for future research on this topic.

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Chapter 2: Literature Review

As explained in the introduction, this thesis consists of a research at terrorism trials from a lawfare perspective. Therefore we explore the current state of academic knowledge in this section with the purpose of getting a total picture of the concept of terrorism trials and show trials. After this the current state of academic knowledge for the concept of lawfare is analyzed. The definition of lawfare that is used in this thesis to look at terrorism trials is explained after the current state of academic knowledge. At the end of this chapter it is should be clear for the reader why it is interesting to look at trials from a lawfare perspective and it is clear why it is interesting to look particularly at a terrorism trial.

2.1 Terrorism Trials

In this section the concepts of a terrorism trial and a show trial are explained. Awol K. Allo is an author writing about terrorism trials. He assumes there is some kind of show in judicial practices (Allo 2010, 41). In his view the courtroom is a strategic platform for spectacles of resistance; this spectacle can be seen as a show trial (Allo 2010, 42). The idea of a show trial is important for this thesis

because a show trial has a goal of spreading a certain message to audiences, but it also contains certain risks. According to Allo, a trial can be used by both a defendant and a state. The defendant can use the courtroom as a platform to argue their case, spread their ideas and spread the ideology they adhere to (Allo 2010, 44). But a show trial can also be seen from another perspective: a Stalinist show trial. In this perspective, the state uses the trial to eliminate political enemies and deter the public to show them what is done with people not conforming to the ideology of the state. In this way the show trial is merely a propaganda tool of the rulers (Allo 2010, 52). This kind of trials has nothing to do with a fair process because all the factual and legal issues have been decided

beforehand by the politicians. In other words, the verdict is made beforehand and therefore there is no risk that the accused will be freed (Allo 2010, 52). Thus there are two kind of show trials we can classify here, a show trial that is used by the state or a show trial that is used by the defendant. Both actors use the trial as a platform to spread a message to target audiences. Thus the concept of a show trial is useful for our research, because we look at the impact of strategies on target audiences, which is also the case in show trials.

A trial has an enormous drama potential due the fact of the communication that takes place between the defense and the prosecution. The drama is played by actors in form of lawyers and prosecutors, trying to confuse, persuade and convince the audience of their view of the story (Allo 2010, 48). An author who goes even further is Beatrice de Graaf. She argues that a defendant , or a terrorist will use the judicial system to argue for their case. This use is not aimed to defend

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(De Graaf 2011, 2). The terrorist challenges the existing rule (De Graaf 2011, 2). The terrorist is likely to turn to performative strategies in the courtroom (De Graaf 2011, 3). She defines performativity in trials as: ‘ acts or strategies adopted by the parties with a stake in the trials to try to convince their

target audiences in and outside the courtroom of their narratives of (in)justice’’ (De Graaf 2011, 7).

For our research, not only the drama potential is important, but also the perfomativity of terrorism trials is important, because it assumes that the actors use strategies to influence target audiences of their views of justice. We not only want to find strategies, but also if these strategies in a terrorism trials influence target audiences.

A recent and good example of a trial becoming a show trial is the trial of Radovan Karadzic in front of the International Criminal Tribunal for the former Yugoslavia. Karadzic is not a terrorist in the way that he attacks a state like the two Tsarnaev brothers in our case, but he is considered a war criminal. In an article written by Tim Meijers and Marlies Glasius, this case has been explored (Meijers & Glasius 2013, 725). The courts where the trials take place are seen as theatrical spectacles by these authors. They claim that in reality a trial is used by the defendant to fight the narratives and ideology presented by the prosecutors (Meijers & Glasius 2013, 726).

The authors conclude that the actors in the trial have different views on the story and what moral judgment they want convince the public of (Meijers & Glasius 2013, 750). It is also important to note that the audiences the different actors want to reach differ a lot. The audiences have different backgrounds and the different views (Meijers & Glasius 2013, 751). It is unclear though how different narratives are reaching those different audiences. According to the authors, more research is needed to say something about reaching audiences. De Graaf agrees with the difficulties about reaching target audiences. According to her it is hard to measure the actual effects of these strategies on target audiences. One of the elements this depends on, is the amount of media coverage the trial gets (De Graaf 2011, 7). The media is not an actual actor in the trial itself, but it’s the channel where the different narratives are communicated through. Without this, the audience outside the

courtroom is impossible to reach and the used strategies will not influence any of the targeted audiences (De Graaf 2011, 8).This is interesting for this thesis, which will not only look at a terrorism trial, but also about how it influences target audiences. In the methodology will be explained how this is done in this thesis.

Now we have a general idea about terrorism trials and the danger of terrorism trials becoming show trials. It is important to state that the kind of show trial for the lawfare perspective is not the Stalinist kind of show trial, where the state uses the trial as a platform to eliminate political enemies and deter the public. Instead we focus on the performance that the actors in a terrorism trial make,

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considering the trial a show trial in the way that the actors perform with a strategy to convince target audiences of their views of justice or injustice. The role of the media to deliver the narratives to different target audiences and the challenges of measuring how these target audiences are reached inherently connected to this view of a trial and are useful for this thesis. Thus we can continue this section with the concept of lawfare. This concept will be described below. It will be explained why the lawfare perspective is useful when looking to terrorism trials.

2.2 Lawfare

Lawfare is a term used in very different ways (Werner 2010, 61). It is not a coherent theory or model, but more a lens to use when looking at law-related events. For example to look at the role law plays in modern warfare and the war on terror in either a positive or negative way, which will become clear later in this section (Dunlap 2001, 4; Kennedy 2006,4; Crelinsten 2014, 3; Waters 2010, 327). This section analyzes the different meanings of lawfare and the development of the term over time. It is important to understand the different meanings of lawfare and the development of the term to understand that the definition of lawfare that is used in this thesis, differs quite a lot from the early definitions of the term and thus this thesis can contribute to the further development of the concept of lawfare.

Initially lawfare is understood as seizing the earliest opportunity to set up regulations (Werner 2010, 64).This means that setting international regulations, or international laws can be in your own advantage and is can be defined as a conquest of law (Werner 2010, 64). If you are the first one that sets the regulations, you can make sure you are the party most benefiting from it.

Another use of the term lawfare is more or less directed at the term war itself. Where war is no longer just a matter of fighting alone but increasingly a matter for politicians, scientists and other professions (Werner 2010, 65). An example of this is economic sanctions, which can be used to force other factions in the war to accept your interests. In this sense, law is becoming a tool for strategies that can be used in war to your own advantage. But the use of law in war times can also work the other way around and no longer create opportunities but create restraints instead (Werner 2010. 66; Dunlap 2001). In the international community a goal of using law can be to make a war as humane as possible, for example to minimize the collateral damage in military interventions (Dunlap 2001, 7). As a result lawyers start playing roles in the managing of combat operations (Dunlap 2001, 4). Thus a war is no longer a matter of fighting alone.

Law can also be used, or misused to legitimize military actions, or whole interventions, but also to delegitimize the enemy (Werner 2010, 66). The legitimization of military actions or interventions is directly connected to public support: if a war seems not be legitimate, e.g. there is a lot of collateral

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damage or a high number of civilian casualties, public support for a war or intervention can erode, influencing the future of the operation and the willingness of the public to support decisions of the government (Dunlap 2001, 9). In democracies public support is essential for chosen leaders and thus legitimization of decisions taken in times of war is important for the future of the leader.

Another use of the term of lawfare is the use of law by critics of the government (Werner 2010, 69). Lawfare is in this way used to discredit the opponent’s reliance on law to fight the enemy, for example human right activists use the law to fight the United States of America because it makes civilian casualties in military interventions (Dunlap 2001, 13). The use of the law by these critics is described as weak and sometimes even explained as helping terrorists. This use of law is called reflexive lawfare (Werner 2010, 69).

To summarize, lawfare can be used to define different ways of using law to reach some goal or benefit, in situation without but mainly in or situation of war. It is interesting though to look further than using law mainly for wars and broaden the definition lawfare to the actual aftermath of wars. The actual war can be over because one of the fighting parties conquered the other. An example of this is the end of the Second World War. The fight continues in the courtroom, where suspects of crimes against humanity are prosecuted and reparation payments are claimed. But there can also be no real war, for example at the war of terror, where the term war is used to describe a battle against terrorism instead of an ongoing war between states8. Or there is a fight being fought between states without military means, but for example over territory, in a courtroom. These cases are all examples of a battle with law as a mean.

According to the earlier section, a terrorist can use a trial as a theatre to spread his ideology. Lawfare assumes that in courtrooms battles can be fought by parties without violence but by using law. Thus if we use the lawfare perspective to look at a terrorism trial, we assume that after a terrorist attack or threat, the fight is not over and continues in the courtroom in the form of a terrorism trial. It is interesting to see if the different actors in a terrorism trial use the law for their own benefit or strategic outcomes. In other words, we want to see if the actors in a terrorism trial use the law to continue a conflict that was present preceding the trial. After all, in every trial the law is used, we are interested to see if actors use the trial and thus law to settle an ideological conflict and spread their ideology, and thus use the trial as a theatre. But besides this continuance of an ideological conflict, we are also interested in the way how actors convince audiences of their view of justice or injustice

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Although real wars have been fought in the war against terror: wars in Iraq and Afghanistan have been fought under the banner of war on terrorism. The war on terror still continues now the wars in Afghanistan and Iraq are over.

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in the ideological conflict and how they use the courtroom as a theatre to accomplish the convincing of target audiences.

Thus to find out if there is a continuance fight in the courtroom and if the actors use the courtroom to convince target audiences of their view of justice and injustice, the definition of lawfare from Dunlap will be broadened from: ‘ the use of law as a weapon of war’ to: ‘the (ab)use of law in terrorism trials for strategic ends’. This definition is suitable from the lawfare perspective because it assumes that law is used in some sort of way for strategic ends, outside an actual war. We will find out how and if this perspective can be applied to terrorism trials by applying it to a single case. In other words, we find out if in this terrorist trial, actors use strategies to convince target audiences of their views of justice and injustice.

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Chapter 3: Methodology

This section introduces the methodology of this thesis. This section consists of three different parts. The first part explains the explorative nature of this study, followed by the choice of a case study. Why a case study supports the objectives in this study and what the up and downsides are in comparison with other research methods like quantative research. The second part is used to describe the data collection of this research. How the data needed for this research is gathered, where it is found, how it is selected but also what data and what data is not needed for this study. The data collection is split up in a section for the strategy finding in the trial and a section for the data of strategies resonating at target audiences. The last part of this chapter is used to explain how the collected data is presented and interpreted, in other words, how these data will be presented to the reader.

3.1 Qualitative research

3.1.1 Explorative Analysis

This thesis is an explorative analysis meaning there is no coherent theory or hypothesis which will be tested, instead the main goal of this study is to find out if the lawfare perspective is fruitful for looking at terrorism trials. Therefore we picked a single case, which we will use to find strategies and use to see if these strategies resonated at target audience. We hope to find problems and difficulties of both of these aspects, to get a better understanding of this lawfare perspective, to make it more suitable for further research or to conclude that the lawfare perspective is not useful at all. It will be therefore impossible to generalize any findings of this research to other terrorism trials, instead any generalization that can be made is theoretical, meaning it can contribute to the lawfare perspective. In other words, we can find out for what kind of cases the lawfare perspective can be suitable for, or how it should be used to when studying terrorism trials.

3.1.2 Case Study

As explained above this thesis researches a single case. This is the right choice to support the explorative character of this thesis. The lawfare perspective is not a coherent theory but a point of view to analyze certain events. Before we can call it a theory, or use the lawfare perspective to conduct studies with a large N (high number of cases), we should first explore a single case to see if the lawfare perspective is fruitful for studying terrorism trials. Thus, in this case study there will be tested whether the lawfare perspective can be useful to look at a terrorism trial. According to the authors George & Bennett, we can call this thesis a mix of configurative and heuristic case study (George & Bennett 2005, 75). This means the thesis can partly be used for future theory building on the lawfare perspective and partly to inductively identify casual mechanisms, hypotheses and casual paths (George & Bennet 2005, 75).

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It is beyond the scope of this study to take more cases. Not solely because it is very time consuming to get in-depth knowledge of a single terrorism trial. Terrorism trials are often lengthy, with a lot of media coverage and a lot of arguments and discussions made by different actors, besides when we want to select more than one trial we have to keep the differences and similarities between the cases in mind. Examples of this aspects are the nature of terrorism (Islamic, separatist, nationalism orientated, extreme right or extreme left), but also the targeted country, amount of victims and amount of terrorists. These aspects can all influence terrorism trials but differ per trial and are thus important to keep in mind when more cases are selected. Due the narrow time frame we are doing this research in, it’s not in our scope to make comparisons to other cases, but it can be of great value to do so in another research. If we want to generalize any conclusion from this single case study to other terrorism trials, the unique aspects of a terrorism trial, our case, have to be kept in mind. But first we have to see if we can generalize our findings to build a coherent perspective, which can be used to analyze more terrorism trials.

In this thesis the case that is selected is the case of the Boston Bombings. It is a case which received a lot of media attention. This is useful for our thesis because we want to measure if and how the audience is influenced, by the actors in a terrorism trial, who uses the media as a channel to spread their narratives. But another aspect is important for the selection of this case. The actual trial took place in the United States in contrast with most terrorism trials that the United States conduct. Many of those are being held in for example in military courts (Sievert 2002; Drumbl 2002). In other words, many terrorists do not receive a trial in the United States, which make the case of the Boston

Bombings a unique possibility to look into a terrorist trial in the United States. Besides there is a more practical matter: the fact that a lot of the court transcripts for the preparation phase of our case are available on the internet and thus easily accessible, gives us the chance for an in-depth research in primary data, the collection of which I will discuss in the next section of this chapter.

3.2 Data Collection

In order to do research to our case, we first have to get a clear view on the terrorism trial selected for this purpose. Therefore, the first step of the data collection of data is to make a timeline of events of the Boston Bombings and the trial. This is done by reconstructing the most important events during the actual attacks and the aftermath of it and introducing the suspects, which is done in chapter four. The timeline will be reconstructed by using multiple online news sources. We chose this method to make the timeline as accurate as possible. The selection of the online news sources is not a representation of all the news sources in the United States of America. We construct an accurate timeline by using multiple sources and do not look at the spread of news sources around the political spectrum. After the timeline of the actual attacks, a short overview of the trial of the Boston

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Bombings is also described in order to give the reader a clear picture of the whole trial and to find the most important dates in the trial9. The most important dates of the trial are used to select the documents from the whole trial that are used to find strategies of the prosecutor or defendant. These days are in both the preparation phase of the trial and the actual trial. There is a chance we miss some discussion or supporting documents of a particular strategy. We are aware of this shortcoming, but think our methods will suffice to find underlying strategies and reduce the chance of missing something significantly different from what we will find out of the selection we made out of the timeline. We chose not to look at documents from after the trial for two reasons. First, because our narrow time frame and the interesting discussions we already found in the preparation phase and actual trial. Second, because the aftermath of the trial is still going on as speak.

We got access to many documents of the preparation phase of the actual trial that can be used to find underlying strategies, for free. For the actual trial itself, it is harder, if not impossible to find to find transcripts for free, meaning that for buying transcripts for the trial, a lot of financial resources are required10. Therefore, for the actual trail we will not use the original transcript but news reports that rely on these official documents and reports from journalists in court. For the actual trial, the Boston Globe is one of the news sources that have extensive reports of most of the trial days11 just like wbur12. We use both websites to get an accurate picture of the actual trial and the most

important developments during the trial. This approach has limitations, because the websites can be biased towards certain strategies. This is the reason why we use multiple sources; to give an accurate and as objective picture as possible. We simply don’t have the financial resources, nor the time to get our hands on the official court documents for the actual trial.

The actual data collection can be separated in two different steps. The first step will have to gather data to answer the sub questions one and two:

1. Do the actors in terrorism trials use underlying strategies in court? 2. What are the main strategies of the actors in a terrorist trial?

9 http://www.myfoxboston.com/story/22021412/2013/04/19/marathon-bombing-timeline http://www.foxnews.com/us/2015/05/15/timeline-events-leading-up-to-2013-boston-marathon-bombing-and-legal-aftermath/ http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11450902/Boston-bombings-timeline-of-marathon-attack-and-trial-of-Dzhokhar-Tsarnaev.html 10 http://www.boston.com/news/local/massachusetts/2015/03/10/you-could-buy-the-tsarnaev-trial-transcript-you-could-buy-range-rover/hbZPM1EAVkfNDoFnZHxOgP/story.html 11_{http://www.bostonglobe.com/metro/specials/tsarnaev} 12 http://www.wbur.org/2015/06/30/timeline-boston-marathon-bombing-tsarnaev

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To answer these questions we have to look at the actual trial and go into court transcripts of the preparation phase. By doing this we analyze the arguments used in the courtroom. The words spoken can be full of strategies or messages. A defendant not speaking, or dressing in a particular way can also be an indication of some sort of strategy. For this purpose we use the website: The Boston Marathon Bombings13. This website contains all court transcripts and official court papers for the preparation of the Boston Bombing trial. We select those documents where either the

prosecutor speak or make an action and where the defendant speak or make an action, to look for underlying strategies. The dates and discussions we used are selected out of the rough timeline we sketch in the next chapter to get an overview of the events. Some topics are not discussed on just a single day or court hearing but continued during the preparation of the trial and are therefore analyzed during the whole duration of the discussion to understand the total argument. An example of this is the topic of moving the trial to another state due a prejudiced group of potential jury members in the state of Massachusetts.

Some important dates and discussion in the preparation phase and the actual trial, which we can use in this thesis to find underlying strategies in the narratives of prosecutors and defendants are

presented below. This selection comes forth out of the timeline we sketch in the next chapter. This selection makes it easier to go through the court transcripts because we can now read those documents where prosecutors or defendants were arguing for their case. But for the second part of the research, where we look at how the target audiences are influenced by the strategies used in court, the timeline is also important. We can now easily see and pick the moments where we want to do research to the influence on target audiences. We do assume that the media reports on these days about the Boston Bombing trial and thus assume we can analyze the influence on target audiences. The important dates for the first phase of our research are:

 22th April 2013, Dzhokhar Tsarnaev is charged with conspiring and the use of weapons of mass destruction.

 10th of July 2013: Dzhokhar Tsarnaev’s first public appearance where he pleads not guilty.  23th of September 2013: Lawyers of Dzhokhar Tsarnaev ask for more time to make their

case.

 June the 18th 2014: Lawyers of Dzhokhar Tsarnaev ask to move the trial out of Boston. This is only the start date of an extensive discussion we will look at as well.

 December 18th 2014: Pre-trial hearing of Dzhokhar Tsarnaev.

13

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 March 2015: here the first phase of the actual trial takes place, witnesses speak, prosecutor and defendants start their case. This phase is the conviction phase, to decide for the jury whether Dzhokhar Tsarnaev is guilty or not

 April 8th 2015: Jury finds Dzhokhar Tsarnaev guilty.

 April the 27th: Second phase of the trial, the penalty phase. Here the prosecutor and defense team try to convince the jury of what punishment Dzhokhar Tsarnaev should get for his crimes.

 May 15th: Jury decides what penalty Dzhokhar Tsarnaev will get: Death Sentence.

The second part of the data collection will be used to answer the third sub question:

3. To what extent do the defendant and prosecutor use these strategies to influence their target audience?

To answer this question we analyze different news websites reporting about the Boston Bombings trial. We have to keep in mind that if we don’t find a strategy in the first part of this research, we cannot test if and how this strategy is promoted by the different actors by using media. But even when there is no coherent strategy the actors can use the media to promote a message. We have a look at different media to have a complete view of the messages broadcasted. When doing this we have to keep in mind that we, as researcher, cannot read Spanish news providers, where the

population of the United States of America, partly consist of Spanish speaking people. So we focus on English speaking media. This can be a limitation of the research to influence on target audiences. We search for differing views in the media about the case, to get a complete picture of the debate. We do not only look at the regular news to find out if the strategies resonated in the public but also at social media.

To be able to assess whether or not the strategies of the two actors reached target audiences we analyzed a few of the mainstream media sources such as online newspapers. More specifically we analyzed media sources that serve both the conservative as the liberal public in the United States of America. The division between conservative and liberal is an important ideological cleavage in the United States. The main conservative media source is Fox News14. The main news source for the liberal ideology is the New York Times15, although liberals rely more on multiple news sources than

14 http://www.journalism.org/2014/10/21/political-polarization-media- habits/?beta=true&utm_expid=53098246-2.Lly4CFSVQG2lphsg-KopIg.1&utm_referrer=https%3A%2F%2Fwww.google.nl%2F 15 Idem.

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conservatives such as: NPR, PBS and MSNBC 16. We analyzed a few moments of the Boston Bombings Trial to find out if strategies used in the trial have worked and thus influenced target audiences. The first moment is the moments right after the attacks till Dzhokhar Tsarnaev got arrested in order to see the general attitude of the media about the attacks and to be able to see if this attitude change during the preparation of the trial and the actual trial. The second moment is the start of the trial after a long preparation phase. The third moment is the end of the trial where Dzhokhar Tsarnaev got sentenced to death. As clarified earlier, the aftermath of the trial is still going but the actual trial ended.

A more direct approach to find out if strategies resonated at target audiences is to look at social media. These media are easily accessible to a lot of people. Besides, it is easy to react to news of the trial or discuss the news in groups17_{. Examples of this are #freejahar on Twitter}18_{and Dzhokhar} Tsarnaev – Innocent Facebook group. For our research we look at Twitter. The positive side of this approach is the fact that almost the whole word comes together on this medium to show their opinion and this medium is easy accessible. The negative side is the amount of information we have to look through. Another problem of social media is the fact the most of the Facebook groups are closed and thus the information in this groups cannot be seen by outsiders because you need to be permitted to these groups.

We analyze social media to see if people reacted directly on developments in the trial and the strategy we think the two different actors used in the trial. It is hard to look through whole discussions though, because thousands of tweets19 take part of a single discussion20. Besides, we cannot look on specific dates in a discussions, thus it becomes very time consuming to go through the whole discussions to find the dates we are looking for. Discussions on Twitter are characterized by hashtags (#). The discussion we analyze is: #freejahar, due the enormous amount of tweets which can be very time consuming to read we only included this discussion in this thesis, which is clearly a

16 http://www.journalism.org/2014/10/21/section-1-media-sources-distinct-favorites-emerge-on-the-left-and- right/?beta=true&utm_expid=53098246-2.Lly4CFSVQG2lphsg-KopIg.1&utm_referrer=https%3A%2F%2Fwww.google.nl%2F 17

For example in groups like: Dzhokhar Tsarnaev – Innocent or Free Dzhokhar Tsarnaev on facebook:

https://www.facebook.com/DzhokharTsarnaevInnocent/ 18_{https://twitter.com/freejahar}

https://twitter.com/hashtag/freejahar?src=hash 19

Because it is hard to find the useful tweets in the big mass, and because we cannot copy the exact links for each tweet, we copied the tweets and placed them in appendix A. If someone wants to read the tweets, we don’t want them to load the whole discussion like we did and hand him the tweets we used right away. 20

When we try to load to whole discussion, our browser crashed multiple times, because it could not handle the big amount of tweets in the discussion. This gives an idea how big the amount of tweets are in the discussion.

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limitation. Many tweets that contain #freejahar, also contained other hashtags like #tsarnaev, #Bostonstrong and #Bostontrial, which indicates that hashtag discussion overlap partly.

Because of the enormous amount of tweets and the lack of possibility to go to certain dates in the discussion as we mentioned above, we could not read all the tweets. Therefore, we opened the whole discussion and used some key words of strategies found earlier to find out if the strategies resonated. Examples of these keywords are: ‘venue’, which is used in the strategy of the defense team when they argue to move the trial to another location. Another word used by the defense team is ‘Tamerlan’, when they try to put Tamerlan as the mastermind of the attacks. The concept of fair trial comes back in the strategy of the defense as well, especially in the preparation phase of the trial. ‘Middle finger’ is a gesture where the prosecutor makes use of in their strategy to put Dzhokhar Tsarnaev as terrorist. ‘The boat’ is another example used by the prosecutor when they show the message of the boat note, Dzhokhar Tsarnaev left when he got arrested. All these words relate to strategies we think the two important actors in the trial use, as will get clear in the next chapter. By using keywords there is a chance we miss tweets that can provide evidence of strategies reaching target audiences but because of the huge amount of tweets, this is the best way to get a general idea of strategies reaching target audiences. Our method clearly has limitations, but it does give us a rough idea of strategies resonating at target audiences.

We look at both the preparation phase and the phase of the actual trial for both the prosecution and the defense. We structured the results by splitting our findings in a defense section and a prosecutor section for each discussion. Whatever we find, will not give a representative view of the whole public, but it let us explore if the strategies of the prosecutor and defendant reach the public and that is enough for now for this thesis.

We left the concept of public opinion out of this research because it will be hard to measure public opinion. We should have needed three measure moments, one before the attacks, one after the attacks and one after the trials to say something useful about public opinion. We therefore make it more generalist approach and ask ourselves how the defendant or prosecutor tries to influence their target audience. We have to keep in mind that because of the narrow time frame and the explorative character of this thesis a thorough research off public opinion or even influencing target audience can be hard to provide for now.

3.3 Presentation of the Data

The analysis of the data we find is presented in chapter five. This means we don’t make a purely descriptive part where everything we find we will be written down. Instead we will start with our findings and then will show the reader how we came to these findings supported by evidence of our

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empirical data. This means evidence for both the strategies found and for how they resonated at the public. The first part of the chapter is dedicated to the strategies of the most important actors in the trial, the second part is focused on how these strategies resonated. We provide the Tweets we used in our research and used in the analysis in the appendix.

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Chapter 4: Introducing our case: The Boston Bombings

The first part of this chapter is used to describe the case, the terrorist attack at the Boston Marathon on April 15th, 2013. This is done by describing the course of events and introducing the suspects. The second part is used to describe the trial of the Boston Bombings and look at the messages or

strategies that are used by the two most important actors in the trial: the defendant and the

prosecutor. The description of the trial is necessary to give the reader a good idea of what happened during the trial and is important to select some important dates of the trial for further research. These dates are both in the preparation phase of the trial and in the actual trial itself. Thus we will not give an in-depth reconstruction of the whole trial, but only provide a rough overview. We select the days for our analysis where discussion between prosecutor and defense take place, for finding underlying strategies of the prosecutor and the defense team.

4.1 The attack: Boston Bombings

On the 15th of April 2013, two bombs detonated near the finish line of the Boston Marathon21.Three people are killed this day, at least 260 are wounded. The bombs were self-made, consisting of nails and other shrapnel, explosives and a pressure cooker. On this day it is still unclear who is responsible for the attacks and what the motive is. In the escape of the suspect a police officer is killed which make the total death count of the Boston Bombing attacks four.

On April the 17th, the President of the United States, Obama, signs an emergency declaration for the state Massachusetts. This emergency declaration gives the Department of Homeland Security, Federal Emergency Management Agency (FEMA) the authority to coordinate all the efforts to deal with the attacks. In a speech Obama gave later (18th of April) he stated that the attack was an attack not only on Boston, but on the whole country, on the homes of everyone22. Besides he calls the attacks personal, describing the victims of the attacks. At this point it is still unclear who and why the Boston Marathon was attacked.

On April the 18th, a photo is published with possible suspects. One of them is wearing a backpack, both of them are originally from Morocco. Later on this day it becomes clear that the two Moroccan suspects are innocent. A new picture and a video are published with two possible suspects: Tamerlan & Dzhokhar Tsarnaev. Meanwhile on the same day, the Tsarnaev brothers go to their family home 21_1._{http://abcnews.go.com/US/fullpage/boston-marathon-bombing-interactive-timeline-abcnews-18997540} 2. http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11450902/Boston-bombings-timeline-of-marathon-attack-and-trial-of-Dzhokhar-Tsarnaev.html 3. http://www.boston.com/news/local/massachusetts/2015/01/05/timeline-boston-marathon-bombing-events/qiYJmANm6DYxqsusVq66yK/story.html 4. http://edition.cnn.com/2015/03/04/us/tsarnaev-trial-timeline/ 5. http://www.history.com/topics/boston-marathon-bombings 22 https://www.youtube.com/watch?v=QxgPjOBY7XI

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grabbing weapons and explosives. Not long after that the brothers ambushed and killed the police officer Sean Collier. The brothers also hijack a SUV when they are on the run, including the driver. They withdraw 800 dollars from the drivers bank account while searching for a gas station. While paying, the kidnapped driver could escape and get someone to call 911.

On April the 19th the police are getting close in the manhunt on the Tsarnaev brothers. In the early morning there is a firefight between the police and the brothers near Watertown, Massachusetts . In a try to escape, Dzhokhar Tsarnaev drives a car over his brother Tamerlan, which was already

arrested and injured by gunshots. The police officers who arrested Tamerlan, nearly got hit by the car as well but managed to escape. Tamerlan Tsarnaev died in hospital later that day. Meanwhile

Dzhokhar left his car and is trying to escape on foot. The whole area of Boston was in lockdown, schools closed, public transportation suspended and the police was searching every single house with special units for Dzhokhar. He got arrested in the evening, while hiding in a boat which was parked in a garden. Immediately after the arrest, the Boston police force tweeted a message containing the news that the suspect was arrested. The tweet was a clear message: terror is over, justice has won. Later we will see that this tweet is in line with the strategy used by the prosecutor in the trial. We can imagine that on this point, in the heat of the manhunt on a terrorist suspect, that it was not a

thought-out decision to tweet a message like this though.

4.2 The Trial: From Arrest till Death Sentence

The trial in the aftermath of the Boston Bombings is a lengthy trial, especially the preparation of the trial took a lot of time. This section will only provide a short overview of the trial and a selection of events in the trial, events we think are important when looking for underlying strategies.

The first important date is the 22th of April 2013. On this date Dzhokhar Tsarnaev is charged with conspiring and using weapons of mass destruction. At this point he was still in hospital recovering from multiple gunshot wounds he got in a firefight with the police on the 19th of April. This is an interesting charge not only because the charge itself, but also because it is early, considering his injuries. It might be part of a strategy of the prosecutor, to charge the suspect with conspiring and using weapons of mass destruction. It is interesting to see that the term ‘weapons of mass

destruction’ is used here, because it is quite a heavy accusation for an attack with ‘only’ three direct casualties.

The 10th of July 2013 is the date where Dzhokhar Tsarnaev has his first public appearance in federal court. He denies his guilt and pleads not guilty with a Russian accent and keeps repeating this. The whole trial is expected to take a while because the court wants to hear a big amount of witnesses.

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It took a couple of months before the next important trial development took place. On the 23th of September 2013 the lawyers of Dzhokhar Tsarnaev ask the judge for more time to make their case because they had not received important evidence from prosecutors and they didn’t have enough time to submit a proposal against the death penalty the prosecutors are arguing for. This request is later denied by a federal judge.

On June the 18th 2014, the lawyers of Dzhokhar Tsarnaev request the trial to be moved outside of Boston to another state. The federal prosecutors are opposing this request. In August this request is done again by the lawyers of Tsarnaev. They want to move the trial to Washington D.C. This request is denied by a judge. The start of the trial is delayed to January 2015. In January the lawyers try to move the trial out of Boston for the third time, because it is deemed impossible to form a jury which is not prejudiced against Dzhokhar Tsarnaev. This request is even done a fourth time and thus this is an important discussion in the trial. We will use the first request as a starting date, but will include the whole discussion in this research.

December 18th 2014 is the first appearance of Dzhokhar Tsarnaev in court since 2013 for a pre-trial hearing.

On January the 5th 2015, the selection for a jury starts. This is done by a questionnaire to see if there are any opinions already formed towards the Boston Bombings.

In March 2015 the trial finally starts after almost two years of preparation. The jury is selected. Most of the time in March is spent on witnesses of different events of the attack. Survivors have the ability to speak, but also first responders, the person whose care was hijacked and forensic experts are called as witnesses in court. On March the 30th the defendants starts their case. On March the 31th the defense team calls in four witnesses and then rest is case. On April the 6th the final arguments of both parties are brought to court.

April the 8th is an important date in the trial. This is the date where the jury finds Dzhokhar Tsarnaev guilty of all the 30 charges. Later in April the penalty will be determined by the jury. In the penalty phase, again witnesses are called to court. In this phase both the prosecutor and the lawyers of Dzhokhar Tsarnaev have the possibility to argue for their case again.

On April the 27th the defense team argues their case and tries to place Tamerlan as the brain behind the attacks to avoid the death penalty for Dzhokhar and aim for lifelong sentence. On May the 15th the jury decides what penalty Dzhokhar gets for this crimes: Death sentence.

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Now the timelines of the attacks and the trials are described and the most important topics and dates are clear, we can move on to the actual analysis in the next chapter.

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Chapter 5: Analysis of the Boston Bombings from a lawfare perspective

5.1 Underlying strategies

This section describes what strategies we found for the two most important actors in the Boston Bombing Trial. We looked for strategies in both the preparation phase and the actual phase of the trial. The divide between the preparation phase and the actual trial will also be the structure used here because we already noticed that the actors used different strategies during these phases. For each phase we start with showing the empirical data we found. The empirical data is split for the different actors.

A strategy can be defined in many ways, for this thesis it is sufficient to say that a strategy is a carefully planned way to achieve some goal. In the trial the goal of the actors is to influence target audiences of their view of justice. This strategy comes back over a longer time period, thus consists not of just statements that are said once with no connection to the narrative told on other occasions instead a strategy consists of a more coherent narrative that is promoted over a longer time period. For both actors we found strategies they pursued in the preparation and the actual trial. For the prosecutor we found a strategy that is focusing on the ruthlessness of the actions of Dzhokhar Tsarnaev. They try by all means to portray him as a terrorist without remorse in both the preparation phase and the actual trial. The defense team in contrast used two different strategies in the different phases of the trial. In the preparation phase, the defense team focused on the trial itself, which in their opinion couldn’t be fair due the lack of time they have to prepare a case because of the huge amount of evidence the prosecutor produced. Besides, according to the defense team, the trial location should be moved because the potential jury members are prejudiced against Dzhokhar Tsarnaev. During the actual trial, the defense team pursued a different strategy. They admitted Dzhokhar Tsarnaev was involved in the attacks, but argued that Tamerlan Tsarnaev was the mastermind of the attacks and Dzhokhar was just following his big brother. This strategy was pursued to avoid the death penalty for Dzhokhar Tsarnaev. Empirical data that supports these findings will be presented below.

5.1.1 Preparation Phase: Underlying Strategies of the Prosecution

In this phase multiple important events took place. The prosecutor used this phase to charge the suspect of multiple crimes that could end up with a death penalty sentence. The first thing that grabs attention is the message from the Boston police force after Dzhokhar got arrested:’’ terror is over,

justice has won’’. This makes clear that the attacks committed by the Tsarnaev brothers are seen as

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Dzhokhar Tsarnaev is charged with using weapons of mass destruction, with the possible penalty of death sentence or life imprisonment23. The charge is not the only thing that is important, the moment, 6 days after the attacks while Dzhokhar is still in hospital with serious injuries proves how much priority the prosecutor gives to portray Dzhokhar Tsarnaev as a mass murderer and terrorist while the death count of the actual attacks was just three.

This strategy of putting Dzhokhar away as a terrorist who is purely against America is continued in the first court hearing of Dzhokhar Tsarnaev. In this hearing, Dzhokhar Tsarnaev denied all guilt and didn’t show any sign of remorse24, which helps the prosecutor in portraying Dzhokhar as a

remorseless terrorist. A moment of Dzhokhar showing his middle finger to the camera in his cell is showed in court later in the actual trial but took place while he was waiting in his cell for this pre-trial hearing. The defense team showed the whole movie of that camera, where Dzhokhar also did his hair and made some other gestures to the camera later. Nevertheless, the middle finger did help the prosecution to build their narrative of a terrorist who hates America and can be considered as part of their strategy.

Time is another part of the strategy of the prosecution. Firstly the moment of charging Dzhokhar Tsarnaev as explained above, is quite early, while still in hospital. Another aspect of time is the discussions about the defense claiming not having enough time to prepare a meaningful case to defend Dzhokhar Tsarnaev in court. According to the prosecutor the mitigating evidence from the defense team is not necessary to see to make a proper decision about the case, in other words, he is a terrorist, no matter with what mitigating evidence the defense team will turn up25. The prosecutor just want justice to be served as quick as possible in our opinion.

The last argument is a reaction on the defense’s team argument about a prejudiced jury pool. According to the defense team the trial should be held in another state because the potential jury pool is prejudiced against Dzhokhar Tsarnaev. But according to the prosecution the jury system is well designed. Even if there is some sort of prejudice by potential jury members, they still will be able to make an objective decision based on evidence, witnesses and own judgment about the case26. The prosecutor also argues that the jury system is an essential part of the judicial system, to give the community who had suffered injury has the right to judge those charged with the injury27.

23 http://imgur.com/a/IbtHz 24_{http://www.pbs.org/newshour/bb/nation-july-dec13-boston_07-10/} 25 http://imgur.com/a/Yt1jo 26 http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/govt_oppo_to_fourth_venue_ change.pdf 27 http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/ortiz_venue.pdf

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The prosecutor claims, that the attack has been the biggest attack on American soil since the attack on the Twin Towers on September 11th 2001. Not only in the United States of America did the attack and the aftermath received extensive media attention; the news reached the whole world, with live feeds, viewed by millions of people all over the world. It is therefore unlikely that potential jury members from other states do not have the same case awareness and knowledge as potential jury members in Boston according. Other states have a high exposure to the Boston Bombing case as well, as the events around the attacks we broadcasted on live television28. The prosecutor believes in the fact that jurors have to put away they prejudices and apply the presumption of innocence29. Also the harsh statements jurors make in their questionnaires about Dhzokhar Tsarnaev, are according to the prosecutor not enough evidence to move the trial. These statements often change in follow-up surveys and are thus not compelling evidence according to the prosecutor30.

Thus the strategy of the prosecution seems to be clear. They picture Dzhokhar Tsarnaev as a horrible terrorist who wants to destroy America. It is clear what he did, why he did it, and that he should be punished by the people who suffered from the attacks. There is no need according to the prosecutor for a long and lengthy trial, because the evidence is clear and thus justice have to be and can be served as soon as possible. Besides the prosecutor does believe that the jury will be able to do their job, even if they are prejudiced. Even if the trial location would be moved, the potential jury

members in other states will have the same amount of prejudice because of the high exposure of the attacks in the media. The community of Boston has the right to judge those who harmed their community.

5.1.2 Preparation Phase: Underlying Strategies of the Defense

First the defense team argued that, for building a decent defense case, they should got more time31. In other words, in order to provide a fair trial for Dzhokhar Tsarnaev, the defense team need more time to build their case. They claim the prosecutor didn’t communicated when delaying deadlines, only using them for symbolic reasons. Besides the defense also argued that the huge amount of information that the prosecutor generated about Dzhokhar Tsarnaev, created problems for the defense team as well, because they could not look into all of it before the set deadlines. Thus if the court wants a fair trial which is a constitutional right, the defense team should have more time to defend Dzhokhar Tsarnaev in a proper way.

28 http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/govt_opposition.pdf 29 Idem. 30_Idem. 31 http://imgur.com/a/Yt1jo

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This argument of a fair trial continues when the defense team argues that the trial should be moved to another location because the group of potential jury members in Boston is prejudiced against Dzhokhar Tsarnaev32. Because almost everyone is in some way connected to the Boston Bombings, they either know someone who was at the Boston Marathon or they experienced the attack as an attack on the community of Boston. Because of this prejudice, Dzhokhar Tsarnaev cannot get a fair trial according to the defense. It therefore should be moved to a state where the prejudice is not present, or at least the connection to the attacks that the potential jury members in Boston have should be lower. They even went so far to state that it is a constitutional right for Dzhokhar Tsarnaev to get a fair trial without prejudiced jury members and the court is denying Dzhokhar this

constitutional right. . The defense team wants to support this claim by using data from the

questionnaires completed by potential jury members33. According to this data, 68% of the potential jury members34 think Dhzokhar Tsarnaev is guilty, and 69 % of the potential jury members feel personally connected to the case35.

The defense team really put effort in this argument by letting a social scientist, Edward Bronson do research to the prejudice level in Boston36. They even let another researcher, professor Vidmar, investigate the research to prove that the research done by Mr. Bronson was done correctly and the results were trustable37. He states for example that the prosecutors methods to disapprove Mr. Bronson’s work are misleading. The defense team concludes that either the trial should be moved because the research done proves the jury pool of Massachusetts is prejudiced, or an evidentiary hearing is held to resolve the dispute about the facts from the experts38.

Apparently the defense team also influenced Dzhokhar Tsarnaev and his behavior in court. At the pre-trial hearing of December 18th 201439, he didn’t spoke with his Russian accent he used in the first court hearing40. He spoke in a decent manner with the judge and didn’t denied anything anymore. This can indicate that lawyers influenced him, in a way to maximize his chances to avoid death penalty and thus stop acting like a terrorist and someone who hated America. We think this is

32_{http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/venue_change.pdf} 33

http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/memosupport.pdf 34

This percentages are before the actual trial even started. 35_Idem. 36 http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/2014_0808_tsarnaev2_declara tion_of_e_j_bronson.pdf 37_{http://thebostonmarathonbombings.weebly.com/uploads/2/4/2/6/24264849/defense_response11.pdf} 38 Idem. 39 http://www.reuters.com/article/2014/12/18/us-usa-expolsions-boston-idUSKBN0JW1AK20141218#cxvoVxHGVy5hX8Rw.97 40 http://www.pbs.org/newshour/bb/nation-july-dec13-boston_07-10/

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necessary because the initial behavior of Dzhokhar Tsarnaev could work against the tactic of the defense team.

Thus the defense team really put effort in the strategy of picturing the trial as an unfair trial. They used different topics for this, from the lack of time to prepare a case, to prejudice of the group of potential jurors. Because of this prejudice, the defense claims that Dzhokhar Tsarnaev’s

constitutional right is deprived and the trial should be moved to another state. This is in our opinion the only real strategy they used. The change of behavior of Dzhokhar in court is significant but at this point not contributing directly to the strategy of a fair trial, it might be contributing to a counter narrative of the strategy of the prosecutor who tries to portray Dzhokhar Tsarnaev as a ruthless terrorist. Besides the behavior of Dhzokhar could damage the strategy of the defense team. Thus the change of behavior is indirectly contributing to the strategy of the defense team. During the actual trial we will see a strategy where this change of behavior might have a more direct contribution, when the defense team focus on the role of Tamerlan Tsarnaev in the Boston Bombings.

5.1.3 Trial Phase: Underlying Strategies of the Prosecution

The prosecutor continues their strategy of picturing Dzhokhar Tsarnaev as a cold-blooded terrorist in the actual trial. They do this by giving an example of Dzhokhar showing no remorse of what he has done. The example of him buying a gallon of milks just 30 minutes after the attack is such an example41. 42. So even if his brother Tamerlan was the mastermind of the attacks, the attack didn’t seem to hurt the conscience of Dzhokhar. He acted like nothing bad happened.

But also the fact he was watching the family he placed his backpack near for some while before detonating is an example that the prosecution used. Showing horrible pictures of injured victims, witness statements of survivors or family of died victims were used to support the prosecutors narrative as well. Another example they used is the message Dzhokhar left in the boat where he was found, where statements like: ’The US government is killing our innocent citizens’’ and ‘ I’m jealous of

my brother who . . . received the reward of jannutul Firdaus (inshallah) before me. I do not mourn because his soul is very much alive. God has a plan for each person. Mine was to hide in his [sic] boat and shed some light on our actions.” were written43. Thus the prosecutors used everything to picture Dzhokhar as a terrorist, which complements their strategy used in the preparation phase of the trial. Nothing was spared to help building this picture, the most horrible pictures and stories were shown

41 http://www.bostonglobe.com/metro/2015/03/12/more-testimony-about-death-mit-officer-sean-collier-expected-tsarnaev-trial/rvMR7fgpIdEnMJvibg3SuJ/story.html?camp=BGcard:Tsarnaev:article 42 Idem. 43 http://www.bostonglobe.com/metro/2015/03/10/fbi-agent-expected-continue-twitter-testimony-marathon-bombing-trial/nLnZIzfc1qmkGuyLdV7tSO/story.html?camp=BGcard:Tsarnaev:article

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in court for this strategy and to influence the jury to apply the death penalty sentence for Dzhokhar Tsarnaev.

In the second phase of the trial, the penalty phase of the trial the strategy of the prosecutor continued. The prosecution argues in this phase why Dzhokhar Tsarnaev should get the death

penalty44. The prosecutors focused on the stories about the lives that have been destroyed or heavily damaged by Dzhokhar. The middle finger Dzhokhar showed to the camera in his cell before the 10th of July 2013 was also showed in court, to show that Dzhokhar is without remorse at that particular point45. Also the lives of the victims were told and showed, focused on the pre-attacks lives, which struck the jury46. All these messages were used for the strategy of portraying Dzhokhar Tsarnaev as a terrorist who deserves the highest possible sentence.

5.1.4 Trial Phase: Underlying Strategies of the Defense

The defense team in contrast to the prosecution did not used the same strategy in the actual trial. Their main strategy in the actual trial was to portray Tamerlan Tsarnaev, the older brother of Dzhokhar Tsarnaev as the brain of the attacks. Dzhokhar was according to the defense, just a follower. The lawyer states that Dzhokhar won’t deny his responsibility in the attacks, but greater blame should be placed on the elder brother. They even started with the statement that

acknowledged that Dzhokhar committed the attacks47.The lawyer of Dzhokhar Tsarnaev opened the trial with the simple statement: ‘It was him’48. Although he didn’t fired the gun who killed the MIT officer in their escape, he didn’t made the bombs, he didn’t bought the equipment for the bombs49 and he didn’t watched as much religious propaganda as his brother50. The defense team support this by evidence presented by forensic experts. They said in court that most of the attributes used in the attacks had fingerprints of Tamerlan on them, but no fingerprints from Dzhokhar Tsarnaev on them51. Also the computers of both brothers were examined. On Tamerlan’s computer, search terms

44 http://www.bostonglobe.com/metro/2015/04/21/sentencing-phase-begins-marathon-bomber-trial/KW2cEK6K0TpQPXEbg4EibI/story.html?camp=BGcard:Tsarnaev:article 45 http://www.bostonglobe.com/metro/2015/04/21/sentencing-phase-begins-marathon-bomber-trial/KW2cEK6K0TpQPXEbg4EibI/story.html?camp=BGcard:Tsarnaev:article 46 http://www.bostonglobe.com/metro/2015/04/22/sentencing-phase-dzhokhar-tsarnaev-trial-set-resume-wednesday/QbdLyqpiKfWvfaqLrrKnqJ/story.html?camp=BGcard:Tsarnaev:article 47 http://www.bostonglobe.com/metro/2015/03/04/dzhokhar-tsarnaev-arrives-court-trial-about-begin/r1HKhliK4xRNORaIbPgttN/story.html?camp=BGcard:Tsarnaev:article 48 http://www.bostonglobe.com/metro/2015/03/04/dzhokhar-tsarnaev-arrives-court-trial-about-begin/r1HKhliK4xRNORaIbPgttN/story.html?camp=BGcard:Tsarnaev:article 49 http://www.bostonglobe.com/metro/2015/03/31/defense-expected-continue-case-tsarnaev-death-penalty-trial/jQf5xFQeXTKJkCyC8Q0nFJ/story.html?camp=BGcard:Tsarnaev:article 50 http://www.bostonglobe.com/2015/03/19/sharpnel-from-bomb-used-tsarnaev-brothers-found-block-away-watertown/HRPNOlDeVNkjgCrHG1ccEO/story.html?camp=BGcard:Tsarnaev:article 51 Idem.

The Lawfare Perspective: An Explorative Research. The Boston Bombings trial analyzed