By Karin Friedemann, TMO
Robel Phillipos (center) arrives for a hearing in his case at the federal courthouse in Boston, Massachusetts May 13, 2014.
Three friends of Dzhokhar (Jahar) Tsarnaev: Dias Kadyrbayev, Azamat Tazhayakov, and Robel Phillipos went before Judge Woodlock May 13-15, 2014 and sat through three full consecutive days of FBI and Homeland Security testimony. Dias Kadyrbayev was poised to testify regarding the nature of his detainment, interrogation, and arrest, but did not end up testifying.
There were only a few observers in the courtroom other than the media; Boston marathon bombing victim Marc Fucarile, and a few family members and friends of the defense. Dias and Azamat, accused of obstructing justice, and Robel, accused of lying to the FBI, had filed motions to dismiss the charges, which Judge Woodlock denied. He agreed to hold three separate trials for the defendants. Azamat will go first on June 30, 2014, followed by Dias on September 8 and Robel September 29. The judge denied the defense request for a trial outside Boston.
Most of the hearing focused on whether or not statements made by the defense while in custody of the FBI were voluntary, when they were detained without a warrant from 9pm until 5am the night of April 19, 2013. There was also the issue of whether or not their English was sufficient to understand what was going on and what they were signing.
The apartment near UMass Dartmouth was shared by the three students. They had a group cell phone plan that was billed to the home under the name Tsarnaev. A couple hours after police killed Jaharâ€™s brother Tamerlan Tsarnaev, while Jahar was still on the run, one of these phones was used in the New Bedford home at 10:06am on April 19. It was Azamat calling his mom in Khazakstan. Shortly after Tamerlan was announced dead on TV, someone used the phone to text his parents in Dagestan. The FBI sent a SWAT team to raid the house without a warrant. Jahar was not there, but Dias, Azamat and Bayan were taken into FBI custody.
FBI Agent Walker testified that they were not under arrest, but they had accepted an â€œinvitation to talkâ€ at the police barracks in North Dartmouth. Walker said he was â€œnot sureâ€ if they were read their Miranda rights before they confessed to removing a backpack full of spent fireworks from the home, or before signing documents giving permission to search their computer, apartment and car. The boys were friendly and cooperative. While they were there, Diasâ€™ attorney called saying he wanted to represent the boys but they were not informed of this. Dias had asked, â€œDo we need a lawyer?â€ and was told, â€œWe canâ€™t offer legal advice.â€
FBI agent Azad testified that he told them they were not under arrest. They were having a friendly back and forth conversation. Dias asked repeatedly to see his girlfriend, Bayan, and was told, â€œSoon.â€ He also asked, â€œAre we almost done?â€
At one point, Dias said, â€œI think we are being held against our will.â€ Walker testified that the FBI called a taxi, which pulled up out front, but could not explain why the boys did not get in. Attorney Stahl clarified that the FBI had taken away their wallets and keys.
Stahl asked why they did not arrest the boys. Walker said they were not sure if they had probable cause. They were waiting for the District Attorneyâ€™s office to tell them how to proceed.
Azamatâ€™s attorney Nicholas Wooldridge cross examined Walker. â€œIf you believe there is probable cause, you donâ€™t need to consult with prosecutor.â€
Walker responded, â€œWe preferred to consult with DA first.â€
Stahl asked FBI Agent Serillo, â€œDid Dias ask for a shirt or blanket?â€ Serilla answered, â€œI donâ€™t recall.â€
â€œThe agents honestly felt scripted and were repeatedly thrown off by Stahlâ€™s questions, answering, â€˜I donâ€™t recall…,â€™â€ court observer Jennifer told TMO.
Early in the morning, six FBI agents in 3 cars drove the boys home. They entered the home with their permission and removed two items belonging to Jahar: a baseball cap and an ashtray.
That same afternoon, the home was raided again by 12 government agents. FBI agents Quinn and Azad interviewed them for one hour. Azad testified that the boys had a â€œfriendly and pleasant demeanorâ€ and â€œhad no idea what was to come.â€
After they signed a consent for the FBI to search the apartment, they were handcuffed. Even though it is not normal for Homeland Security to deal with such technical matters, Homeland Security Agent Wiroll arrested them for student visa violations. He read their Miranda rights but there was no Russian translator present. The boys were forced at gunpoint to remove their shirts and walk backwards out of the apartment with their hands in the air. Even though Dias was handcuffed and put in the back of a police car, Walker testified that he was free to leave anytime he wanted, if he just had said, â€œI want to leave.â€
In the back of the car, Walker told Dias, â€œJaharâ€™s life is over. Whether heâ€™s still living or not, his life is over. Heâ€™s dead one way or another. Your life is not over. Yours doesnâ€™t have to be. You must tell the truth. You have to tell me right now. Donâ€™t make a mistake.â€
â€œIt was disturbing to hear him to say it like that,â€ a supporter named Ana told TMO. â€œBut in a way he is doing whatever he can to get this to be fair to the boys. He is responsible for their arrest.â€
Homeland Security agent Jameson Wiroll testified for at least 15 minutes that Dias did not need help with translating and that no Russian was spoken. But when Wiroll was double cross examined, he changed his story regarding whether or not Dias needed help with translation before he signed documents including a highly unusual immigration form where he â€œconfessesâ€ to throwing away the fireworks (something an FBI agent told the HSI agent to add).
â€œIt is not normal to include extra information not related to the subject a person was brought in for,â€ observed Attorney Stahl. Wiroll testified that he added it as â€œbackground information.â€ Stahl then pointed out on the same document that the Consul from Khazakstan was present and had helped with translating. The Judge said, â€œIâ€™m confused.â€ Wiroll then admitted that Russian was spoken and they needed help with translation.
Wiroll has a history of giving false testimony. He was named as a defendant in a 4th amendment violation civil case against the town of Rockport filed by James Atkinson involving a 2009 weapons case where all the charges against Atkinson were dropped because the local cops and FBI were found to have fabricated evidence, and used illegal wiretapping.
According to a government transcript of a phone call from the Essex County jail to Bayan on May 24, 2013, Dias lamented about how he was treated after he had fully cooperated with law enforcement. â€œEverything that we did â€” everything that I did, everything that I signed, I signed it on my own. They asked me, right, â€œWill you give permission?â€ and I gave. But, then how they [trashed the place]â€¦ like pigs.â€