By Karin Friedemann, TMO
On April 16, 2014 TMO attended a status hearing for Dzhokhar Tsarnaev, 20, who faces a 30-count federal indictment for his alleged role in the Boston marathon bombings. Tsarnaev was not present in the courtroom, nor were his family members. The 1Â½-hour hearing took place before Judge George Oâ€™Toole. The US government was represented by Aloke Chakravarty, Nadine Pellegrini, and William Weinreb while only two of Tsarnaevâ€™s lawyers were present: Miriam Conrad and David Bruck, the death penalty specialist recently appointed to the team. US District Attorney Carmen Ortiz was in the courtroom.
â€œJudge Oâ€™Toole wasted no time announcing his decisions on two of the motions before the court. Without hearing any arguments, he matter-of-factly denied the governmentâ€™s motion for a protective order barring Tsarnaev from viewing the autopsy photos of the four people killed in the bombing and its aftermath. He also denied, without prejudice, a defense motion to dismiss several counts of the indictment. The defense team had argued that the charges were redundant and duplicative. â€˜I think itâ€™s premature,â€™ Judge Oâ€™Toole explained, adding that the motion could be revisited at the time of the trial,â€ reports Victoria Liberty of the Freedom Bulletin.
The first discussion topic was Tsarnaevâ€™s visitation rights under SAMs (Special Administrative Measures).
Attorney Bruck requested SAMs be vacated. He complained that Tsarnaevâ€™s legal team is not allowed to speak with him without an FBI officer present, which creates a problem since the FBI is on the prosecution team. This results in â€œfearful conversationâ€ with family members and denies lawyers the ability to see the â€œstory of the family.â€
US Attorney Pelligrini countered that the SAMs have already been modified. There are now 12 people who have permission to visit Tsarnaev, including lawyers, paralegals and investigators. Pelligrini said the defense is â€œunable to control what the defendant says.â€
â€œWhatâ€™s quite clear is the defendant felt clear to say whatever he wanted, despite the presence of the FBI investigator.â€
Bruck said there is no national security reason to allow an FBI agent to listen in on family conversations. The FBI will spin anything said.
They were both referring to a recent incident when Tsarnaev joked to his sister about the SAMs restrictions, making light of the uncomfortable situation. The FBI leaked to the media that he was making inappropriate statements that demonstrated his lack of remorse for his crime.
â€œAt least we want the FBI agent whoâ€™s listening in on these conversations not to pass information to the prosecution,â€ argued Bruck.
The prosecution argued that Tsarnaev can always talk to lawyers freely, but when his sisters are there it is a social visit that warrants FBI monitoring. This makes very little sense from an investigative standpoint. The FBI presence can only make the Tsarnaevs nervous about talking. If the FBI wanted information they would leave them alone with a recording device.
The government insisted that Tsarnaev will â€œpass messagesâ€ to the public if they let him talk. â€œInformation is being transmitted!â€ Pelligrini warned.
Tsarnaev had been imprisoned without incident until Attorney General Eric Holder, alarmed by the thousands of letters Tsarnaev received supporting his innocence, called for restrictions on Tsarnaev, claiming there was â€œsubstantial riskâ€ that his â€œcommunications or contacts with persons could result in death or serious bodily injuryâ€ to others, insinuating that he had â€œfollowersâ€ that would commit violence at his command.
Judge Oâ€™Toole sided with the defense. He said the normal prison visitor screening and security measures were sufficient for public safety. He felt the defense is being limited in their ability to defend their client by the FBI presence during their meetings. He ruled that since family visits are only allowed with a lawyer present, they should be considered legal visits exempt from monitoring and not as social visits, since understanding family dynamics is relevant to the defense.
â€œIf the security interest is higher than the investigative interest, then a party other than the prosecution should be present,â€ said Oâ€™Toole. â€œThe defense team ought to have an opportunity to have a 2 or 3 way conversation among siblings. I donâ€™t think the safety, security issue looms very large.â€
The government rather insolently retorted that the Warden is able to restrict visits even without SAMs.
â€œIs the court ordering the BOP to not impose restrictions?â€ Weinreb seemed to dare the judge.
Weinreb openly undermined the judgeâ€™s authority, telling him if you order this, we will go around you. The prosecution seemed to be talking to the judge like an employee!
Judge Oâ€™Toole submitted to government pressure, conceding to allow in a BOP lawyer to argue against reducing prison restrictions before he made a decision in two weeks.
Next, the lawyers moved on to discovery disputes.
Defense Attorney Miriam Conrad stated that â€œas a result of government failure to meet discovery deadlines, we are now at a disadvantage.â€
Conrad said the government is not following normal protocol to respond within two weeks to discovery requests and the defense had not received certain long requested documents until Friday last week.
â€œWe have had no opportunity to submit a response,â€ she said.
Conrad stated that the defense still does not have the Todashev interview materials, and insisted that they are entitled to know what he said during the FBI interview.
The government says the information should not be public.
â€œBut they have leaked so much to the public already,â€ Conrad argued.
Weinreb said the government has no legal obligation to produce the requested materials, although they agreed to voluntarily provide some information.
The defense wants information on how Tamerlan â€œslit the neck of 3 helpless people,â€ Bruck explained, because, â€œThis case is very much a story about a family and the relationships between them.â€
â€œTodashev implicated himself and Tamerlan in the Waltham murders, not our client. Itâ€™s not clear if Dzhokhar knew of the crime,â€ stated Conrad.
Weinreb said Todashevâ€™s interview is not related to this case and â€œhas no relevance.â€ This is curious since it was the prosecution that added the alleged confession into the court documents in the first place.
Now he says Tamerlanâ€™s influence on Dzhokhar â€œrelates to what he knew, not what happened.â€
In court papers, Dzhokharâ€™s lawyers argued that Tamerlan â€œwas an all-powerful force who could not be ignored or disobeyed.â€
Weinreb responded that there is no indication that Dzhokhar knew of Tamerlanâ€™s murderousness, and that is all that is relevant.
Oâ€™Toole had denied the request in November for Todashev documents on the grounds that law enforcement privilege protects disclosure of files in an ongoing investigation. Now that the FBI has issued a report clearing itself of any wrongdoing regarding the killing of a potential witness, Oâ€™Toole said he would ponder the defense request for the Todashev statement after viewing it privately, â€œin camera.â€
The ACLU is currently suing the FBI and US District Attorney Carmen Ortiz over the FBI murder of Todashev. The ACLU of Massachusetts is calling for state Attorney General Martha Coakley to conduct her own independent investigation into Massachusetts law enforcementâ€™s involvement in the Todashev shooting in the name of transparency and accountability.
The defense has argued that the FBI had pressured Tamerlan to become an informant. Could Todashev have had damaging information about links between Tamerlan Tsarnaev and the FBI? A genuine investigation would reveal information about the FBI that could hurt the case for the prosecution.
â€œWhile some of this circle of friends in Florida, like Todashev, faced pressure to confess to participating in or having knowledge of the Waltham crime, others, according to CAIRâ€™s Shibly, have been told that if they want to be left alone and not deported, they need to become informants. He says several of those harassed have opted to return to Russia rather than become spies for the FBI in Floridaâ€™s Muslim community,â€ reports firedoglake.
I have to assume the defense is aware that Tamerlan probably didnâ€™t commit the triple murder in Waltham – one of the victims was his best friend. An investigative journalist for WBUR told TMO she suspects the crime was related to a local drug ring.
However, for the sake of argument involving requesting documents related to Todashev, the defense appears to accept the government story. Theyâ€™ve also suggested that Tamerlan suffered from mental illness, saying his â€œparanoia and distressâ€ were fueled by an FBI attempt to recruit him as an informant to report on the Chechen and Muslim communities in Boston.
â€œWe base this on information from our clientâ€™s family and other sources that the FBI made more than one visit to talk with (Tamerlanâ€™s parents) and Tamerlan, questioned Tamerlan about his internet searches, and asked him to be an informant,â€ the defense motion states.
The government denies the allegation.
Defense lawyers want to see FBI documents to confirm their allegation. Naturally, the government is not cooperating.
Next, the defense argued for access to lab reports and other materials. The government is delaying or refusing to provide information about its mental/physical examinations of Tsarnaev and other investigations including computer searches.
â€œHow can prosecutors argue with a straight face that computer or phone searches arenâ€™t material to the Tsarnaev case? I donâ€™t know how a search of a computer and what they revealed is anything other than an examination under rules of discovery!â€ Conrad argued.
â€œThey thought it was material to search 12 computers. If we have to conduct our own studies of hard drives it will take longer and be very expensive.â€
Obviously whoever has Tsarnaevâ€™s debit card, computer and cell phone information can easily figure out where he was and what he was doing before, after and during the marathon.
Aloke Chakravarty, who was the lead prosecutor in the case against Tarek Mehanna, whose trial was also overseen by Oâ€™Toole, now argues that evidence from government computer searches isnâ€™t relevant to Tsarnaev. But at Mehannaâ€™s trial he heavily relied on chat messages and computer files to make the case for the prosecution. If the government doesnâ€™t want to reveal computer and chat records now, this would imply that the information obtained from Tsarnaevâ€™s computer/phone might be more useful for the defense than for the prosecution.
When the defense asked for any information obtained under secret surveillance programs, the prosecution said they will not reveal this information, unless they plan to use it at trial.
As she asked for FISA (Foreign Intelligence Surveillance Act) information, such as intelligence that the Russian government had shared about Tamerlan and his radical leanings, Conrad commented, â€œI have been puzzled all along by the governmentâ€™s rather opaque responses to our requests for FISA notice, and I continue to be puzzled.â€
Conrad argued, mentioning the Patriot Act: â€œFirst the government says they do not intend to use FISA obtained evidence, but there are indications of Homeland Security surveillance. Then the government takes the position that we are not entitled to notice their data mining. The defense has a right to challenge how information was obtained and to challenge admissibility.â€
The defense may move to suppress evidence gleaned from computer searches on the grounds that the searches exceeded the scope of the warrant. Any such motions are due on May 7th.
Chakravarty stated, â€œThe government doesnâ€™t want to be in a position of foreclosure just because the defense provoked a response. We can put to rest right now whether there is any secret evidence. There isnâ€™t.â€
Oâ€™Toole said that because the government said it doesnâ€™t plan to use any surveillance material at trial, there is nothing for him to rule on. He denied the defense motion to obtain this information. Prosecutors will have to give proper notice if they plan to use any evidence, and if they donâ€™t, they canâ€™t.
Oâ€™Toole says he plans to discuss expert witness disclosures at the next hearing on June 18. He chuckled aloud to himself that this is no ordinary case.
Dzokhar Tsarnaev is scheduled to be tried on November 3.
Conrad expressed doubts that the defense could be ready by that date, given the government stalling to avoid handing over documents.
â€œIâ€™ll make you a believer,â€ said Oâ€™Toole, who intends to stick to the schedule no matter what.
I sincerely hope this trial will proceed with a fact-based format rather than the tactics that Miriam Ortiz and her employees have previously used, basically overwhelming the jury with irrelevant, unsubstantial, prejudicial, and downright false evidence.