Mitigating Circumstances


Jury selection is under way in the trial of Dzohkhar Tsarnaev, aka the Boston Marathon Bomber. The defense strategy will likely rely heavily on the theory that he was coerced by his older brother Tamerlan who was killed a few days after the attack. But suppose Tamerlan had lived...what possible defense could be mounted for him?

Last summer, I was invited to give a graphics advice lecture to a group of defense attorneys gathered for a Capital Case Training sponsored by the Washington State Office of Public Defense. The hypothetical question of Tamerlan Tsarnaev's defense was the central case study for the three day event. I wanted my talk to include some specific ideas for using graphics to highlight three possible mitigating circumstances in the case:

1. Racist interpretation of political views. Detractors claim that Tamerlan was radicalized on a trip to Dagestan, feeding into the racist stereotype that he was a "extremist." However, the secondhand statements that describe his political views seem rather tame when compared with those of Michael Moore, a white filmmaker known for his bold political activism.

2. Discrimination and disillusionment. Tamerlan had dreams of becoming a professional boxer. He worked diligently toward this goal and became the 2010 New England Golden Gloves Heavyweight Champion. But he became disillusioned when a rule change barred non-citizens from participating in the Golden Gloves nationals.

3. Mental illness. Many of the people closest to Tamerlan worried about his mental stability.

These examples use a technique called visual character introduction. I first read about this approach to courtroom presentation in Show the Story, the Power of Visual Advocacy, by William & Robert Bailey. They suggest using an image to anchor key facts about each "character" in the case. The image can then be brought back multiple times to help jurors recall thoughts and feelings they have linked with the character. In the same way as a filmmaker introduces the main characters of a movie, attorneys can use image selection as a tool to gain more control over how a story unfolds in court.

If he were alive to stand trial today, Tamerlan Tsarnaev's guilt or innocence of these terrible crimes would not be affected by the mitigating circumstances described above. However, they should absolutely be part of the sentencing discussion when considering if the death penalty is warranted. I learned a lot about this case from reading an excellent investigative story by the Boston Globe: The Fall of the House of Tsarnaev. All images in this article (except that of Michael Moore) were sourced from this article. The story is a lot more interesting that what we all saw in news headlines during the first week after the bombing. Do yourself a favor and check out the Globe'll have a much more nuanced appreciation for the case when it starts appearing in headlines again this spring.


Joshua Cohen is a Principal at Fat Pencil Studio