Trial Scheduled for November, No Plea Bargain in Sight
By Karin Friedemann, TMO
Artistâ€™s rendering of an earlier Tsarnaev appearance in court.
â€œAttorney General Eric Holderâ€™s January 30th announcement authorizing Federal prosecutors to seek the death penalty for Tsarnaev (if convicted), does not appear to have alarmed attorneyâ€™s for the accused in any way: In fact, they now appear wholly intent on taking the case to trial,â€ reports blogger B. Blake.
â€œThis is in stark contrast to virtually all of death penalty lawyer Judy Clarkeâ€™s previous cases, none of which have ever proceeded to the trial stage. For example, Jared Lee Loughner, Eric Rudolf and bomber Ted Kaczynski all accepted plea deals in their efforts to avoid a trial and face possible execution.
The courtroom was packed on February 12, 2014 for the latest status hearing for Dzhokhar Tsarnaev, which lasted about 30 minutes. Several Boston Marathon bombing victims were in attendance, organized by lead prosecutor Carmen Ortiz, who was reportedly very â€œfriendly and familiar with them.â€ The victims were kept in a separate room from the public before the hearing. MIT Police Chief John DiFava was there, claiming to represent MIT Officer Sean Collier, who was allegedly killed by the Tsarnaev brothers. DiFava is pushing for the death penalty. Many Tsarnaev supporters and media skeptics were also in attendance, as well as the usual throng of journalists.
The crowded courtroom provided witnesses a lively debate that demonstrated that the government might be overconfident about their sure win. While the prosecution talked, balked and stuttered in boring circles, defense attorneys Judy Clark and Miriam Conrad were on point and downright entertaining. Prosecutors had not heeded Judge Oâ€™Tooleâ€™s order from the last hearing to start cooperating with discovery. This naturally cast doubt upon the validity of the prosecutionâ€™s case against Tsarnaev.
The issues at hand were the trial schedule and discovery. The defense asked for a September 2015 trial date in order to have enough time to prepare, in light of ongoing government obstructions of discovery, while the prosecution wanted to rush through the legal proceedings and go straight to the penalty phase. On the surface, Oâ€™Toole appeared to side with the prosecution, setting a November 2014 trial date, saying, â€œI think it is appropriate to do some scheduling.â€
â€œThe judge probably knows full well that 11/3/14 isnâ€™t a realistic trial date but set it in part to keep things moving along,â€ tweeted Attorney David Frank, managing editor of Massachusetts Lawyers Weekly.
Judy Clarke explained to the judge, â€œI understand the courtâ€™s desire to move this along but I donâ€™t see us identifying experts by the time we go to trial.â€ She pointed out that death penalty trials are broken into two parts: a liability phase and a punishment phase.
US Attorney Aloke Chakravarty answered sourly, â€œLetâ€™s not kid ourselves. The issue here is going to be in the penalty phase.â€
This degree of prosecutorial arrogance did not come across well. If Tsarnaev is convicted it will be the same jury that will determine if he will live or die.
â€œI considered Chakravartyâ€™s comment to be totally inappropriate,â€ stated a court observer named Jane.
Frank tweeted, â€œIf judge forces Tsarnaev to trial before his lawyers are ready, the judge would be creating a whopper of a legal issue on appeal if convicted.â€
Clarke complained that they cannot go forward with the case because the government has not been complying with requests for evidence. Defense attorney Miriam Conrad pointed out that the government is supposed to respond to a request within two weeks.
â€œThey said theyâ€™d get back to us after the holidays. Apparently their definition of â€˜the holidaysâ€™ includes Martin Luther King Day!â€ Ms. Conrad then went on to say that she had been unaware that â€œthe holidaysâ€ extended nearly up until Presidentâ€™s Day!
â€œChakravartyâ€™s excuse for the delay in providing access to discovery to the defense was that the defense had not been â€˜specificâ€™ in regards to what items of evidence they wished to have access to,â€ reported Jane.
Tsarnaevâ€™s defense team said they had never experienced anything like this.
â€œWe got radio silence from December 18 to February 7,â€ Conrad said. â€œWith that kind of response, I donâ€™t know how we could possibly move forward.â€
â€œDiscovery in this case has been way outside the norm in my experience,â€ complained Clarke, who has taken on many capital cases.
â€œWeâ€™re really having a hard time getting access to information. Discovery is not completed. It has been a laborious process… slow and cumbersome. When we ask for something they say narrow it down. We do, and then itâ€™s not enough… We canâ€™t get forensic reports. We have no idea where they are going.â€
The government has handed over millions of pages of electronic files, but these are still not even labeled, let alone searchable, despite previous court orders. Additionally, the defense is asking for information on how this evidence was gathered.
The FBI is holding some 2,000 pieces of physical evidence in Quantico, Virginia and two other locations. Chakravarty claimed that the defense has had the opportunity to review this evidence, but Clarke responded that she has a â€œslightly different viewâ€ of where the evidence is and how it can be obtained. The FBI keeps giving them the runaround.
â€œItâ€™s not us thatâ€™s dragging our feet, weâ€™re really struggling to get access… Weâ€™ve had a little bit of a sluggish shall I say start to reviewing physical evidence.â€
Clarke said that defense attorneys have repeatedly and unsuccessfully tried to schedule an appointment with the FBI to view these pieces of evidence and have no idea what they are. â€œAs far as we know, the evidence is 2,000 BBs.â€
She also pointed out the hardship of traveling back and forth each time. She flew in from San Diego for this hearing. She is also having trouble meeting family in Russia because of the Olympics.
â€œThereâ€™s just a tremendous amount of logistical hurdles,â€ she said.
The judge asked Chakravarty if he was going to start supplying the defense with some actual information. The prosecuting attorney stammered and stalled for at least a full minute before agreeing. Judy Clarke quipped to the judge: â€œYou have a black robe and it took you that long to get an answer from the government on discovery. Imagine what we are going through.â€
â€œThis is undoubtedly going to be a lengthy trial,â€ Oâ€™Toole said. He warned the prosecution that their lack of cooperation could endanger the trial schedule and instructed them to â€œavoid unnecessary accumulation of even relevant evidence.â€ He ordered the government to supply a list of evidence by the end of the week.
Unfortunately for reporters and the public, the evidence files will be sealed. Likewise, the court documents filed on February 11 were sealed.
â€œOutside the courthouse, some supporters of Tsarnaev said they still believe the teen is innocent,â€ reported Michele McPhee from ABC. One woman, Lisa Figueroa, 36, drove to the federal courthouse in South Boston from New York City to show her support.
â€œThey wonâ€™t let him write letters which is wrong,â€™â€™ Figueroa said. â€œIâ€™m not one of these girls who thinks he is a rock star. Heâ€™s accused of terrorism. Itâ€™s serious. I just think he could be my little brother.â€ Kevin, 31, of Boston told TMO he believes Dzhokhar was set up by the government.
A woman who was a bystander at the marathon in front of the forum said she witnessed them remove a mailbox to hide evidence. Even a tree was uprooted from the crime scene. Some believe the angular momentum of the shrapnel would help narrow down where in the crowd the explosion came from. The witness mentioned that the smoke smelled like sulphur or rotten eggs. It did not smell like fireworks.
â€œItâ€™s not American for a suspect to go from isolation to execution without ever getting to explain his side of the story,â€ another bystander told reporters, questioning the plausibility of many of the government accusations.
â€œI left the courthouse today feeling a lot more positive than I have done in a long time.â€ said Jane. â€œThere is no way the prosecution is going to be allowed to continue their prevarication.â€
Several Tsarnaev supporters told TMO that their mail is being returned, opened.