Tsarnaev Proceedings: Judge Passive While Government Plays Games

By Karin Friedemann, TMO

Dzhokhar Tsarnaev’s legal proceedings are “at a standstill” because Judge O’Toole refuses to compel the government to play fair.

The defense filed several motions regarding the government’s leaks to the media, which unfairly present the young man as guilty before he’s even gone to trial; the FBI presence during prison visits between family and attorneys, which violates attorney-client privacy privileges; a request for further discovery regarding the alleged confession of Ibrahim Todashev; disputes over disclosure of expert witnesses; defense requests for a searchable index of the millions of pages of “evidence” supplied by the government; and the change of venue request.

Most disturbing is the use of “secret evidence” supplied by the government to the judge, which the defense has no knowledge of. Shortly before they killed him, the FBI claims that Todashev and Tamerlan Tsarnaev had committed a triple murder in Waltham, Massachusetts. This unsubstantiated claim was added as if it were fact into the Dzhokhar Tsarnaev court filings in order to make him appear guilty by association. The judge said he had reviewed the classified government document “in camera” and he saw no reason to compel further discovery in order to allow the defense to question it. Not only is the FBI above the law when it comes to murdering potential witnesses, but their word is considered golden when it comes to clearing themselves of wrongdoing.

The defense made it clear that they would not be ready for trial by November 3, which is the current date that is set. The amount of evidence given to us from the government is “massive and disorganized!” stated the defense. They said it would take months if not years to sort through the millions of pages of documents supplied by the prosecution, if the government would not clearly state their argument. The defense had stated that the only way they even know the government’s story is from the media leaks, which the judge does not seem inclined to put a stop to. He simply advised that a letter be sent out to staff members as well as public officials, to stop commenting to news reporters.

“It’s not our job to make things easy for the defense,” argued US attorney William Weinreb. However, Weinreb seems to believe it is the defense’s job to make things easy for the prosecution.

“Federal criminal trials should not be waged by surprise,” Weinreb ironically stated, while demanding that the defense hand over all of their information regarding witnesses that might testify during the penalty phase of the trial, even though the defense argued that this is not the normal procedure, and that the normal procedure is to focus on proving guilt/innocence first.

Defense attorney Bruck argued that turning over information to the prosecution like mental health analyses would undermine Tsarnaev’s 5th amendment rights against self-incrimination. US attorney Weinreb replied that requiring the defense to turn over documents they will eventually disclose anyway does not violate the 5th amendment.

If he is declared guilty, the defense would discuss Tsarnaev’s emotional past but they don’t want to turn that over now while they fight for his innocence. O’Toole asked if there was any non-personal, non-mental health stuff they could turn over.

“This is not an easy line to draw, and that’s why the courts don’t go there,” Bruck said, trying to main normal government procedure despite the judge’s crumpling.

Bruck insisted that the government has all the information about Tsarnaev while the defense only has whatever information the government has chosen to give them, and that was given to them in a totally unusable format.

“I think we need to put into perspective this claim of fairness, that the government is in the dark,” Bruck said.

Defense attorney Tim Watkins said the government has enormous volumes of documents. Months into this case the defense is still begging the government for a searchable index and some kind of context for these millions of disorganized documents because not only do they need to be reviewed, but the defense needs to determine if these claims regarding fingerprint matches and crime scene data are “reliable.”

“We have an obligation, where the stakes couldn’t be higher” to review the narrative of government’s data and test it, Watkins said. “Otherwise, mistakes are made at trial.”

The judge is not overtly siding with the prosecution but is also making zero effort to control them. He gives the impression that he just wants to get this over with. He wishes both sides would just make clear arguments instead of dancing around the issues. However, he does not use a firm tone of voice against the government, ever. He seems to be going through the motions of the appearance of a trial, but like it’s a formality.

So basically, nothing new to report regarding the Tsarnaev proceedings because nothing can go forward until the judge gets tough. The defense is still desperately explaining that under the current situation there is no way they can be ready for trial and therefore, there is no way that Tsarnaev can get a fair trial.

Judge George A. O’Toole Jr. said that he will give lawyers more time to submit arguments over whether the trial should be relocated to Washington, DC. However, this move seems unlikely since O’Toole declared mid-September as the target for jury summons.

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