January 23, 2014 by TMO
US prosecutors and defense attorneys for Dias Kadyrbayev, Azamat Tazhayakov and Robel Phillipos faced Judge Douglas Woodlock on January 15, 2014 at Moakely Federal Courthouse in Boston.
Dias’ lawyer Robert Stahl began the pre-trial hearing by complaining that the defense needs more time to go through the 3 million pages of discovery documents the government provided to them in a compressed zip file, which is not searchable with a browser. They must click on each file to open it. The evidence includes forensic imaging from computers and cell phones, including text messages in Russian.
“People can use some judgment,” the judge said. “I don’t buy into the idea that when the government dumps a lot of stuff on you that imposes an obligation on you to spend endless hours reviewing everything.”
Stahl argued that the defense interpretation of text messages in the indictment differs from that of the government. In order to understand whether or not there was knowledge about the bombing or any intent to dispose of evidence, we need to know the context and background of the conversation, including the the boys’ relationships. For example, Dzhokhar’s text message saying they could take what they wanted from his room should be interpreted in light of the college students’ use of marijuana. If the related evidence can demonstrate that Dzhokhar was not understood to be advising the friends to remove bomb making materials from the room, the defense will consider filing a motion to suppress this statement from the record of evidence. Stahl stated he wants the same ability to access relevant information as the government.
Judge Woodlock felt that this analysis went beyond the scope of the indictment, but told US attorneys, “The defense is entitled to see what evidence you are using.” He gave the government five days to provide the defense with whatever keyword search engine they are using. He lectured the attorneys that the case needs to be focused and proceed in a timely manner. He ordered the government to supply a witness list by January 31 as well as a list of which exhibits out of the 800,000 they submitted as evidence will actually be used in the trial and gave the same deadline for discovery requests from the defense.
Stahl continued to argue, saying that he could not know what more to ask for in terms of information until after he had gone through all the available evidence. He said this is a very complex case, given its relationship with the ongoing marathon bombing trial.
“I would be remiss if I didn’t review things because what I don’t know is what comes back and hurts me,” said the attorney. “We have one chance and it has to be done right.”
However, the judge dismissed him. “The issues that are involved here have to deal with something very specific.”
According to earlier reports, the FBI showed up at the boys’ apartment on April 19 armed and wearing masks. Stahl said that if the FBI report is accurate, the boys were taken away from their home at gunpoint, not arrested but held for hours before being taken to state police barracks.
Stahl said that the FBI does not record statements, they write up a report afterwards. So even though they have the FBI report, the defense would also like notes and reports from other agencies and witnesses who were present during the interrogation that might provide exculpatory evidence. The state police station videotape recorded the interview and there were other witnesses present, who were not mentioned on the FBI report since they were outside the room, but who were aware of the interrogation.
The judge insisted that the FBI is not obligated to provide any recordings of their interviews. He stated, unconvincingly, that the information that could be provided by state police is not relevant in federal court. He conceded that the timing and issuing of proper Miranda warning could influence whether evidence is permissible.
Stahl then argued that one of the witnesses who testified before the grand jury disputed the government’s version of events, but her statement is under seal. The defense wants to be able to use her testimony.
Nicholas Wooldridge, Azamat’s attorney, said the unnamed witness could provide “one of the central pieces” of a motion to suppress evidence, namely the confession statements the boys were forced to sign.
The judge told them to either file a motion to unseal the deposition or else submit their arguments to the judge under seal.
Robel’s lawyer said he plans to file a motion to dismiss, saying the charges don’t meet legal requirements of demonstrating intent to obstruct justice or failure to provide material regarding the bombing investigation. He argued that Robel was not in the room when the other two discussed what to do with Dzhokhar’s backpack.
The judge made a series of deadlines for evidence to be submitted, government responses, motions to compel, dismiss, change venue or to separate defendants’ trials. A conference hearing is scheduled for March 10. He rejected Dias and Robel’s request for a January 2015 trial date and set a date in July in accordance with Azamat’s wishes.
However, US attorney Siegmann then derailed the discussion by making an exaggerated facial expression rather than standing to speak – the second time she has behaved in such an obviously unprofessional manner with a judge during this case.
Judge Woodlock interrupted proceedings to say, “I see this pained expression in your face!” Siegmann stated that she has this expensive vacation planned, so the judge changed the date to early August.
Robel’s lawyer then stood and said he had a vacation planned for early August, hoping to defer the trial until September, but Woodlock got tough.
“We’re making it closer, not farther away,” the judge said. He scheduled the trial for June 23. The trial is expected to last 2-3 weeks.
After the hearing, TMO asked Stahl, “Shouldn’t the burden be upon the government to demonstrate that the fireworks were related to the bombing?”
The attorney answered, “One would think!”
Robel’s lawyer encouraged supporters after the hearing to post positive comments on sites like the Boston Globe and Herald, because locals read these rather than the websites dedicated to this case. Robel’s mother thanked friends for their encouraging letters to her son, saying they meant a lot to him.
“I think this is a far-ranging case – only the surface has been scratched,” Stahl told reporters outside. When asked, “How is your client?” Stahl responded:
“He is strong. He is getting more strong as time goes by, because he has to. Obviously, this is very difficult. His family is not here. His family is having trouble getting visas granted from the United States to come back here, so that makes it that much more difficult. Imagine if you were overseas with no friends or family members there to even visit you. As time goes by we are just as eager to see a speedy and correct and positive resolution to this matter.”
Azamat’s father, Amir Ismagulov told reporters through his attorney and translator that he welcomed the news of the June trial date.
“We felt it was our first victory on this case,” he said. “We felt this was a great victory for Boston to know the truth nine months earlier… Our sons feel they didn’t harm this city and country, and they never felt they did something negative or harmful.”
Azamat’s father told reporters that his son is now in the general prison population. He has been receiving his books like he is supposed to. He is also going to the going to the library and using the gym. He added that the people they have met these past 9 months in Boston are some of the nicest people he has ever met.