Monday, August 18, 2014

Tsarnaev Defense Thwarted

“In this type of case it should be cut and dry. Why the dance?” read a tweet commenting on ongoing arguments between government prosecutors and the defense attorneys representing Dzhokhar Tsarnaev during the latest status hearing for Tsarnaev on Thursday, August 14.

The first item under discussion was leaks to the media, which unfairly present the defendant as guilty before trial. This has been an ongoing problem, which the defense has repeatedly asked the judge to do something about. Once again, Judge O’Toole claimed that “this concern is taken to heart” but denied the Tsarnaev motion to seek relief, other than advising government officials not to talk to the media. He once again refused to create consequences.

Next, the “firewall” issue came up. An FBI agent is monitoring all conversations during prison visits between Tsarnaev, his sisters, and his attorneys. The defense has repeatedly stated that they cannot speak freely in front of the FBI, given that the FBI is part of the prosecution team and this violates client-attorney privilege. However, the judge felt “there is prudence in monitoring some way.” He ordered the government to keep a log of communications but not content, for example, “spoke to warden.” He saw no reason for further relief.

Regarding the defense request for further discovery regarding the murder of Ibrahim Todashev,” whose alleged confession that he and Tamerlan Tsarnaev had committed a triple murder of some drug dealers in Waltham, Massachusetts, was written into the legal case of Dzhokhar Tsarnaev as if it were fact, the judge said he had reviewed the classified government document this claim was based on “in camera” and he saw no reason to compel further discovery in order to allow the defense to question it. Once again we are seeing the use of secret evidence that the defense cannot see, in a prosecution of a Muslim.

Next, the defense complained that the government is demanding to know who the defense will call as witnesses during the penalty phase of the trial. They said revealing their arguments against the death penalty before their client has even gone to trial would “chill the defense.” They complained that although the prosecution handed over a 108 page list of expert witnesses they might call on during the trial along with their biographies, the defense feels entitled to more specific information on what the government’s case against Tsarnaev will be. They are still completely “in the dark” about the government’s position, they said, beyond the media leaks they have come across on TV. Tsarnaev’s defense is asking the judge to compel the government to deliver "more complete disclosure."

“We are ‘mystified’ as to what evidence the defense is looking for,” claimed US attorney Weinreb most cynically. “We've given them everything we have!”

At the same time the government is claiming that the defense has not handed over any information to them. The defense retorted, “We don’t have any information other than what the government gave us!” Tsarnaev’s attorneys complained that the government has access to a worldwide network of investigators while the defense has nothing to work with other than the 6-7 terabytes of data that the government handed over: thousands of hours of audio and video recordings, tens of thousands of photographs, every email Tsarnaev ever sent, as well as forensic evidence such as fingerprints, DNA, bullet casings, test results, witness injuries and the like. However this information is neither labeled nor indexed in any way that the information can be searched easily, nor matched with each other; for example photos are not in the same file as the description of what expert witnesseses plan to say about the photos. So the defense has no idea what point the government is trying to make, and would have to click on literally millions of links trying to piece together this information. 

The amount of evidence given to us from the government is "massive and disorganized... breath taking!” stated the defense. They want more time to sort through all this madness. Similar tactics of overwhelming the court with huge amounts of irrelevant information have been used against many other Muslim defendants: for example if they ever watched a video of a beheading online, this video would be used as “evidence” against them, even though realistically, who knows what their opinion of the video actually was?

The government accused the defense of “trial by ambush” and insisted that the defense lay down all their cards on the table regarding their anti-death penalty arguments.  “We will have no opportunity to prepare our witnesses. The result will be that the jury will only be hearing one side of this case.” The defense responded, “It is a weightier discussion to take a life than to spare it. We have more rights to discovery than the government.” The judge will consider the matter.

“The fact that they threw in the bathtub and the bathwater doesn’t excuse not disclosing their expert witness opinion summaries.” It will take months, if not years, even if all three defense lawyers work to figure out which files are interesting. “It’s too important to put a secretary on it.”

The defense complained that in the past, the FBI has mismatched fingerprints and photographic evidence. They need more information about how the evidence was collected, before trial, to determine if the evidence is “reliable.” The defense wants the government to “contextualize” the data, saying “it’s almost a random process.” 

O’Toole refused to rule on this issue immediately. The change of venue request is to be addressed orally next week, while mid-September is the target for jury summons. 

In short, Tsarnaev’s legal proceedings are “at a standstill” since O’Toole refuses to compel the government to play fair.

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