Court Hears Tsarnaev Arguments

By Karin Friedemann

On November 12, 2013 lawyers for and against Boston Marathon bombing suspect Dzhokhar Tsarnaev appeared before Judge George O’Toole for a motion hearing and status conference. Federal attorneys Bill Weinreb, Nadine Pellegrini and Aloka Chakravarty expressed eagerness to push forward with the trial while defense attorneys Tim Watkins, Miriam Conrad, William Fick and Judy Clarke argued for more time, as the government flooded them with over 100,000 pages of documents including a massive volume of tweets and inconclusive grainy photographs, which they must sift through.
Defense attorney Watkins told the judge, “We almost know what we don’t know. The case is moving along. None of us is sitting on our hands looking for things to do.”

After going through the discovery documents, the defense team plans to file motions to suppress or dismiss evidence and ask for more information.

The government is so far withholding evidence that has been specifically requested by defense attorneys, such as the Tsarnaev family’s immigration records, autopsy reports of Tamerlan Tsarnaev and Ibragim Todashev, and any actual evidence for new government accusations against the two dead men along with the defendant. The government won’t release evidence for their claims regarding Tsarnaev’s alleged link to the Waltham murders stating it’s an “ongoing investigation.”

US Attorney Weinreb said he wants the trial to begin in fall of 2014 and wants all discovery motions to be filed within 90 days. He estimated the trial would last 90 days and sentencing would take 6 weeks. Weinreb denied that discovery is incomplete. He believes the government is entitled to withhold information from the defense in order to bring it up later during trial. He said the government will not release autopsy photos but that defense lawyers are welcome to look at them.

Attorney Conrad argued against the government’s proposed “rocket schedule” for one of the “most complex crime scenes in history,” and explained that there is a warehouse full of unlabeled documents related to this case to go through. She demanded the government immediately provide “all exculpatory and mitigating evidence,” so that the defense would be “better able to understand where the government is going.”

Attorney Fick reminded the judge that establishing guilt or innocence of the accused should be the goal of the court.

Judge O’Toole set the date of February 28, 2014 for motions not related to discovery, including  a possible change of venue or requests for dismissal of charges, but agreed to defer the trial date. The next status status conference is scheduled for February 12, after the government is to have made its decision regarding the death penalty.

The attorneys then discussed the Special Administrative Measures (SAMs).

Judge O’Toole said, “I agree enough with the defendant” regarding problems with preparing an adequate defense, but he claimed he did not have the jurisdiction to deal with Constitutional issues such as group prayer. He said these concerns should be brought up in a civil suit by a third party in front of a different judge. He said his job is to determine “not whether SAMs are annoying but if they are limiting.”

Earlier this month the ACLU filed a memorandum with the court calling Tsarnaev’s prison conditions “torture,” but O’Toole ordered the ACLU memo expunged from the federal court record and barred the ACLU from making a statement at the hearing.

Attorney Fick argued that SAMs are “unwarranted” as Tsarnaev is not a political leader. He said the SAMs restrict the defendant’s right to defend himself, because they limit who can see Tsarnaev outside the company of an attorney.

SAMs also tacitly threaten defense attorneys with possible incarceration if they defend their client’s innocence too vigorously. Without mentioning the name of Attorney Lynn Stewart, who is now dying in prison, Attorney Clarke mentioned in court that “attorneys have been prosecuted for differing from prosecutors in their interpretation of SAMs.”

SAMs prevent Tsarnaev from speaking confidentially with his lawyers, and prohibits them from discussing their conversations with Tsarnaev, or relaying messages from him, even a greeting. Tsarnaev’s lawyers are not allowed to talk to any potential defense witnesses without an agent of the federal government there. Tsarnaev’s lawyers argued that SAMs are preventing them from building a fair case in his defense.

The prosecution claims Tsarnaev’s communication needs to be restricted to prevent him from inspiring further acts of violence. The government worries defense lawyers might pass some sort of message from Tsarnaev to a person on the outside. Tsarnaev’s team complained of government prosecutors’ collusion with the Bureau of Prisons.

“The government has no business knowing the details of attorney meetings in prison,” argued Clark. “The prosecution has no business knowing which member of the defense team sees Tsarnaev, when, and what is shown to him.”

“This is not a level playing field,” Conrad told the court. “It appears the government is trying to retain every possible advantage in this case for itself.”

The prosecution said the Attorney General has the authority to institute SAMs and it is the burden of the defense to determine that what is being disseminated to third parties is strictly legal.

Judge O’Toole asked that attorneys agree on a list of people with legal access to the prisoner but would not make any ruling about SAMs, so the restrictions remain.

Next, Conrad reiterated the defense request that the government turn over all the information they have. When the indictment includes a capital charge, it’s a capital case, she said. There should be no need to wait for disclosure. The government has a global network of investigators, police, and witness statements, while the defense must rely on the government to inform them.

Weinreb said they don’t have to provide more evidence until after the decision about the death penalty. “We have turned over everything that we deem to be exculpatory or relevant to mitigation.”

Conrad argued that basic fairness is the core issue. She accused the government of “splitting hairs” over types of evidence. The government is not providing the defense access to their investigation. The defense would have to go through a long process to obtain documents when the government could get it with just a phone call. “You do your investigation and we’ll do ours, is what the government seems to be saying.” Conrad told the court that the government’s resources are global while we are just a handful of people with limited time who have other clients also.

So far the government has not said what information they have from foreign or intercepted sources. Defense attorneys want to interview the CIA. Conrad argued that the government should not be able to decide what information to provide and withhold, or provide summaries instead of transcripts of interviews or secret grand jury statements. The government won’t even provide non-secret information that explains the circumstances or context of available witness statements. The defense has asked for information about Tsarnaev’s repeated requests for a lawyer during his initial hospital bed interrogation. The government is withholding documentary evidence including signed statements, while at the same time pushing for a quick trial date.

Prosecutors claim it is “premature” to disclose information about the Russian communication to the US but Conrad insisted that “the judge has the authority to compel evidence” that is required to make the defense job efficient.

The prosecution said they will show the Russian communication and other key information secretly to the judge, but not share it with the defense.

Prosecution denied the government is withholding any favorable evidence but said the government is withholding unfavorable evidence in order to use later in the trial. Weinreb said the defense is not allowed to second guess the government about whether all evidence has been disclosed and denied that the government is inhibiting investigation.

The defense has asked for files that the government could easily provide. The government won’t give a reason why, but just keeps saying it doesn’t need to provide the information right now.

“This is just plain wrong. We are entitled to information in an orderly and efficient manner,” argued Attorney Conrad.

Judge O’Toole said he would take the matter into advisement.

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