Sunday, March 13, 2016

Boston Marathon Bombing Court Appeals Begin: Public Donating For Tsarnaev Funds.

On Tuesday, December 1, 2015, Dzhokhar Tsarnaev's attorneys brought up a number of arguments at Moakley Federal Courthouse in Boston. I watched the hearing on the screen in the overflow room. The first order of business was an attempt to reduce the number of charges against the young man. He was convicted of 30 counts, several of which are more than sufficient to result in the death penalty. His attorneys argued that the sheer number of counts against him overwhelmed the jury and caused them to be influenced in favor of the death penalty.

They would like to have a retrial in a different city because the locals of Boston are likely to be driven by revenge since they were personally affected by the tragedy. In their motion, they mentioned that the people on the jury were actively exposed to coverage and opinions about the bombing on Facebook during the trial, and that many of their Facebook friends were Bostonians. Some of the jurists actually made or were exposed to prejudiced comments even before evidence of the crime was presented.

Defense attorneys spent a lot of time bringing up technicalities that in my opinion were not very forceful arguments. Attorney William Fick said many of the charges were unconstitutional because they mentioned "violent physical force." They said the government "conflates the ability to cause injury with violent force." They claimed that setting the bomb down was not technically the use of violent force any more than arson, which is not considered a violent crime even if people are hurt in the process. Regarding the charge of "malicious bombing of property," they argued that the word "malicious" refers to a mental state resulting in "intentional and reckless" behavior but does not imply violent force was used. The carjacking took place because of intimidation - no violence was involved.

Naturally, the government disagreed that the counts needed to be vacated and stated that the decision should be left to the Supreme Court.

In the second part of the hearing, the fiery Attorney Miriam Conrad argued forcefully against the Special Administrative Measures (SAMs) against Tsarnaev. She said there was "no valid argument to justify" having a federal agent monitor attorney visits with Tsarnaev's sisters in prison. In an earlier court hearing "in the shadow of litigation," the court had ruled that the agent would be from a different state and not part of the government prosecution team. He was not to relay information to the prosecutors about their conversations due to "attorney client privilege."

However, in a recent email to the defense lawyers, the government lawyers said that they no longer plan to abide by that agreement and that they want access to the defense's information file. They want to know who visits Tsarnaev and what they talked about. Defense lawyers said the government cannot just unilaterally decide to revoke an agreement, that litigation is far from over and that attorney client privilege still holds. It is not at all normal for prosecutors to get access to defense attorney's private files whether before, during, or after litigation. The government should not decide whether meetings should take place, nor see documents, Conrad argued. The agreement does not say that the information is only private until after the verdict. She said that Dzhokhar Tsarnaev is not being treated like any other defendant. There are far more restrictions on his lawyers' ability to defend him, even though he is not just serving a sentence, he is awaiting the death penalty.

The government argued that the presence of Tsarnaev's sisters invalidates attorney-client privilege and that the agreement is not enforceable because the government needs to know if there were visitors who were not expert witnesses, so they can investigate these persons because the government "needs to know if they've ever had problems before." They mentioned Sister Helena, the nun that testified that Tsarnaev was sorry for his actions. They didn't think she should be visiting Tsarnaev because she is not an expert witness.

Conrad replied that listening to the government talk is like Alice looking through the looking glass. The government should have modified the agreement not just send an email saying we aren't following it anymore. Sister Helena was cleared under the heavy restrictions of the SAMs and there is no reason that the government needs to know what she said to him.

As usual, Judge O'Toole mumbled that he would not rule at this time.

The next issue that was discussed was how much money would be taken out of Tsarnaev's commissary to go towards "Mass Fund" which gifted 57 victims with restitution money. The court ruled that Tsarnaev would have to pay $25 per quarter ($100/year), an amount that would be adjusted based on availability. This seems to be aimed at discouraging supporters to donate money in fear that the government will take it. In the past, Tsarnaev received so many donations that the government threatened not to provide him with a free lawyer as he had too much money. Now, nobody is even allowed to send him books. His attorneys were not even allowed to give him a family photo.

Finally, the court discussed the unsealing of documents. As of now, Tsarnaev's trial is unprecedented in terms of how much of the proceedings has gone on under the veil of secrecy. "We are anxious on behalf of a lot of people to unseal the documents," said O'Toole. He ruled that for starters, both defense and prosecution would decide which of their own documents they wished to unseal. After that would come a future discussion on which of the other party's documents the parties would agree to unseal, before arguing about the remaining documents. Clearly the judge is in no hurry for the proceedings to become transparent to the public.

The Tsarnaev case, as with most cases where the defendant is a Muslim, continues to elements and types of issues that normally do not arise in other cases, even when the defendant, who is not Muslim, has committed a mass murder. For example, the fellow who shot up the church got a speedy trial and was not sentenced to death, whereas the Boston Bombing trial went on for years and there is no end in sight.

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