Shades of Infamous Child Killer Case Hang Over Tsarnaev Trial

Image: Susan Smith’s 1994 mugshot.

By Barry Thompson (Patch Staff)

They were both famous for nation-devastating murder cases before they turned a quarter-century old. Aside from that, at a glance, Dzhokhar Tsarnaev and ‘90s true crime personage Susan Smith have little in common.

Yet their respective capital murder trials run parallel on a few key levels. Both wound up represented by noted anti-death penalty advocates David Bruck and Judy Clarke, the latter of whom has served as defense counsel for numerous celebrity maniacs, including the “Unabomber” Ted Kaczynski and Jared Lee Loughner, the 2011 Tucson shooter.

In Smith and Tsarnaev’s cases, their attorneys sought a not guilty verdict while more-or-less admitting their clients’ direct involvement with the salient mayhem at their trials’ onset. Not that this was their first choice, or they really had any others.

“I’m sure the defense team said they’d plead guilty if [the state] would drop the death penalty. I’m sure that’s what happened,” said Quin Denvir, a California defense lawyer who worked alongside Clarke during the Unabomber trial in 1996. “So what do you do at that point? If the evidence of guilt is overwhelming, then you might as well concede that the evidence is there, and convince the jury they should give life instead of death.”

Had the court not accepted a death penalty-less guilty plea for Kaczynski, Denvir guesses he and Clarke would’ve approached that trial similarly to how Clarke’s currently handling Tsarnaev’s. Clarke kept the state from executing Loughner with a guilty plea. Olympic Park bomber Eric Rudolph, also represented by Clarke, avoided the death penalty the same way in 2005.

Life had dealt Susan Smith more than her share of trauma, argued Clarke and Bruck. Her father took his own life when she was 6. Her stepfathersexually abused her during her adolescence. Her history of suicide attempts indicated that her lingering emotional and psychological scars were not insubstantial.

Tsarnaev’s attorneys can’t directly shift the blame for the 2013 Boston Marathon bombings - which killed three and left more than 260 seriously injured - onto Tamerlan Tsarnaev, Dzhokhar’s older brother and alleged co-conspirator. But Clarke and Bruckcan try to paint Tamerlan as a charismatic personality with tremendous influence on his little brother, as well as an absolute psycho who was suspected of brutal, religiously-motivated murders well before the Marathon.

As they did while defending Susan Smith, Clarke and Bruck aren’t trying to vindicate Tsarnaev, so much as attempting to make the jury want him to die a little less. And they saved Smith - she’s still alive, and up for an unlikely parole in 2024. But considering a few noteworthy differences in their trials, it’s not yet certain that the “he did it” defense will spare Tsarnaev a lethal injection.

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For those too young to remember, Susan Smith of Union, South Carolina, was convicted of drowning her two children, 3-year-old Michael Smith and 14-month-old Alex Smith, in 1995. Her case became a national news storyeven before investigators publicly accused the then 23-year-old of any wrongdoing.

Initially, Smith claimed she had been carjacked by a black man who drove away with the two boys still strapped into their car seats. She went on to garner tremendous sympathy by appearing on national television, weeping and beseeching the public to come forward if they had any information about Michael and Alex’s whereabouts.

But Smith was full of it. Police noticed inconsistencies in her story. She failed a lie detector test. After sticking to her imaginary evil black guy narrative for nine days, she cracked under the increasing media and police scrutiny, and admitted her car and sons were at the bottom of John D. Long Lake.

Her rationale for filicide, it was said, was she loved a man who wasn’t interested in having a family.

“I had to try the case for a maximum punishment,” said South Carolina prosecuting attorney Tommy Pope, currently a state senator. “Part of my reason at the time was we couldn’t treat a white, middle-class female differently than we would treat an African American guy or the husband. That was a great concern I had from a justice standpoint.”

Rendering Smith as a deeply troubled - but perhaps not fundamentally evil - individual wasn’t the only tactic the defense used to eschew her execution. Bruck and Clarke opted against a change of venue - keeping the trial, and therefore the jury, based in Union.

With a population of 8,148 in 2013, Union is one of those towns where everybody knows everybody. Jurors might not necessarily have been personally familiar with Smith, but odds were someone they knew was.

“It was too close to home for Union. It was such a small community, that the likelihood of seeing a family member [of Smith’s] at the store or having gone to church with them, or all of those things, was present,” says Pope.

From the prosecution’s standpoint, asking for a change of venue would have been too detrimental to their own credibility to make it worth the tradeoff.

“I’m an elected prosecutor,” explains Pope. “In order to change venue, I’ve got to say, ‘These people can’t be fair.’ That’s a little awkward to say, that your own community can’t be fair.”

Perhaps the jurors in Union all knew the name “Susan Smith” before it popped up in the national media. The 12 individuals from Boston - population 645,966 in 2013 - determining Tsarnaev’s fate hadn’t heard of him before April, 2013. Nonetheless, Pope emphasizes that the defense doesn’t have to convince the entire jury that they should let Tsarnaev live. Capital punishment defendants only need one juror to vote against death for a guaranteed life sentence.

“It could be the juror who had a dominant older brother, or it can be the juror who sees their own son in this boy, or whatever the case, [the defense is] looking for that one juror who thinks this is something deserving less than the ultimate penalty,” says Pope. “The prosecutor is going to have to paint the nature of the crime as one warranting the death penalty by looking at the victim impact. In other words, flipping the coin and painting the picture of the people who lost their lives or were injured.”

That’s another thing - Apart from a video simulating Smith’s car sinking into John D. Long Lake from a backseat perspective, Pope’s primary victim impact testimony came from the utterly destroyed David Smith, Michael and Alex’s father. Meanwhile, as we’ve seen this week, attorneys seeking to arrange for Tsarnaev’s demise can take their pick among a few hundred-plus bombing victims to speak for their cause.

More Boston Marathon coverage on Patch:

• Boston Marathon Bomber Trial Begins, Defense Attorney: ‘It Was Him’
• Alleged Boston Marathon Bomber’s Widow Could Face Criminal Charges
• Injured Boston Bombing Couple to Divorce
• Boston Marathon Bombing Suspect’s Lawyers Seek Indictment Dismissal
• Tsarnaev Lawyers: Delay Trial Over Paris Attacks
• Death Penalty Complicates Boston Bomber Trial
• Watch: Boston Marathon Victim Walks Again
• Marathon Bombing Victims Help a North Andover Boy