Criminally Yours: The Boston Bombing And Etan Patz -- Should The Defendants Testify?

The conventional wisdom among defense attorneys is don't put your client on the stand if there's already reasonable doubt without him.

Two high-profile criminal cases are concluding this week — the trial of Dzhokhar Tsarnaev for the Boston Marathon bombing (at least the guilt phase) and the case of Pedro Hernandez, accused of murdering six-year-old Etan Patz in 1979. (Patz became the first missing child to be posted on the side of a milk carton. His disappearance sparked the “missing-child” movement.)

Why would either of these defendants take the stand?

Defense attorney Judy Clarke already made the decision in the first phase of the Tsarnaev terrorist case. He did not take the stand. The job was too tough. The defense argued that because Tsarnaev was acting under the spell of his older, fanatical brother, Tamerlan, he was not responsible for the murders. Clearly there was no benefit in having him testify. Faced with overwhelming evidence of his guilt, it was unlikely the jurors would be persuaded of his innocence by catching a glimpse of his personality.

The time to show who Mr. Tsarnaev really is and expose him to the rigors of cross-examination will be the sentencing phase. The young man with the tussled hair sitting in court, largely distracted, doodling on a pad of paper, will need to be humanized to the jury in order for them to find the compassion not to sentence him to death. Although Massachusetts is a far better place to be facing the possibility of execution than Texas, the jurors will be thinking hard about their decision.

In the Etan Patz case, also concluding this week, Pedro Hernandez, an 18-year-old grocery clerk at the time of the murder (he’s now 51), is accused of luring Etan to his basement and killing him. An indictment was long in coming, more than 35 years, and the case rests largely on the strength of Hernandez’s alleged confession — a confession where only parts were videotaped and where he received Miranda rights seven hours into it. Complicating matters, Hernandez has a documented history of mental illness and another man, Jose-Antonio Ramos, whose life intersected more directly with Etan’s, had been investigated for the crime, sued civilly by Etan’s parents (who won), and allegedly made admissions about the crime to a jail-house snitch.

It’s unlikely Hernandez will take the stand. Why? Three reasons:

  1. It brings new danger. If the jury doesn’t believe him, there’s a risk they’ll flip the burden of proof, no matter how shaky the government’s case. If they conclude he’s lying about part of his testimony, no matter how minute, they could believe he’s a liar in general. Nobody likes getting the wool pulled over their eyes.
  2. Defense counsel already did the job for him. By putting on a great case detailing Hernandez’s mental health history, pointing out the contradictions between his confession and the actual facts of what happened, and explaining to the jurors what the stress of interrogation can do to the validity of a “confession,” they laid out all the reasonable doubt they could. If Hernandez testifies and comes across coherently, jurors might believe he’s feigning mental illness. If he comes across too jumbled, they might think he’s exaggerating. It’s a lose-lose situation.
  3. The jury already got the chance to see Hernandez up close and personal. Because there is a videotaped “confession” in the case (or at least part of one), the jurors have seen Hernandez interact in the give-and-take of being questioned. They’ve also watched him in court for weeks and have been making an assessment of him on a day-to-day basis.

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The conventional wisdom among defense attorneys is don’t put your client on the stand if there’s already reasonable doubt without him. The Hernandez case has ample reasonable doubt. This is not to say he’ll necessarily win (in fact, the jury heard he also admitted to the crime to a church group he was part of), but they’ve got a lot to think about, and a unanimous verdict won’t come easily.

High-stakes cases always involve minute-to-minute analysis of whether or not your client should testify. I’ve had cases where I’ve changed my mind, or the defendant has, the morning of his testimony. But it’s unlikely Pedro Hernandez will take the stand.

Tsarnaev, however, is another story. There’s nothing quite like seeing the defendant answering questions just feet away from you. Only if he takes the stand will the jurors get a glimpse of who he really is, and perhaps through that glimpse, ultimately decide to spare his life.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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