Mysterious Boston Trial Begins: Defense Not Defending the Accused

http://newtrendmag.org/ntma1592.htm

The trial of Dzhokhar Tsarnaev began Wednesday, March 4. If anyone still held out any hope that we were going to get some answers, that the government would now be asked to prove their convoluted story related to the 2013 Boston Marathon bombing, or that Jahar’s lawyers were going to put up a fight, they were brutally disappointed like a slap in the face. I attended opening statements as well as court proceedings the following day and I am as baffled as anyone, for this is the most bizarre criminal trial anyone in history has ever seen.

The prosecution’s opening statement was as expected. It echoed what has already been leaked to the mainstream media, with a few embellishments that sound preposterous. Suddenly now they are saying Jahar’s UMass ID was found on the floor of his Honda Civic, covered in the blood of Officer Collier, the MIT cop who was killed while sitting in his car, as well as his blood covered gloves. Why would any murderer take off the victim’s gloves and then put them in his car? There was so much about the government testimony that begged to be ripped to shreds. Attorney William Weinreb drew upon public prejudice against Islam, calling the defendant  a “holy warrior” whose actions were motivated by a desire to die as a martyr and reach “paradise.”

Defense attorney Judy Clarke then shocked everybody by beginning her opening statement by conceding responsibility for “a series of senseless, horribly misguided acts carried out by two brothers: 26-year-old Tamerlan Tsarnaev and his younger brother, 19-year-old Jahar.”

Isn’t a defense attorney’s job to cast doubt on the government’s accusations? We all expected her top priority to be defending her client’s life but saying, “He did it” in the opening statements went above and beyond most people’s expectations. Seems to be a strategy to make the trial go by as fast as possible so they can focus on the sentencing phase, with the presumption that he is assured of a conviction no matter what arguments are presented. The defense did not cross-examine a single government witness.

I searched Jahar’s face for some sign of guilt or innocence but could find no information except that he is resigned to his situation and trying to stay positive. I watched his long, bony white fingers play with a pencil, standing it up on end, holding it upright awhile with one finger at its tip. His eyes remained downcast most of the time, though he occasionally glanced at a speaker. There was one particular cop that he glared at. Chatting with his legal team, he seemed almost too content with their decision, given that neither death nor life in prison seem like particularly good options. The second day, he looked pale and subdued. There is nothing about his demeanor that seems tense, angry, or fearful. One observer described him “like a lost puppy.” Similarly, a schoolteacher and potential juror that didn’t end up getting selected, blogged:

“There was no cloud of evil that floated around him, nothing that marked him as being different from one of my doofy sophomores.” [http://cognoscenti.wbur.org/2015/03/06/dzhokhar-tsarnaev-trial-erin-dionne]

I turn to his family for some kind of insight. Jahar’s Aunt Maret posted on weebly:

“That team of defense was forced on Dzhokhar. Dzhokhar, I know that from my brother Anzor, apparently was REFUSING those lawyers back in May-June of 2013, he told them to go away, that he did not want them (obviously, he did that since he detected that they were not there for his benefit). When the parents raised the issue before Judy Clarke and William Fick for the first time in June 2013, in Makhachkala, during their first visit, that they (the parents) would want to get a private lawyer to defend Dzhokhar, because they knew that public lawyers are government paid lawyers. Fick's (mostly, it was him pressuring this issue through) and Judy's response to that intention of the parents was "there is no way" you can do that and you will be allowed to do that. Fick said if one of the attorneys go, then the whole team goes. So, Judy Clarke and William Fick also were pushed down Dzhokhar's throat by the government. And, this team got Zubeidat somehow under their influence and that is how they worked out their defense strategy, according to which, they are painting Tamerlan as "self-radicalised" mastermind of the crimes and Dzhokhar is a follower. And there, you should see why Dzhokhar would be seeming indifferent during the court proceeding to those, who report from the courthouse. It was mentioned the other day that Dzhokhar felt nauseous on Thursday, would that be side effect, he was having as a result of drugs he was pumped in before that day's court hearing? Because I cannot image Dzhokhar feeling ok and sitting quietly, while Judy Clarke was given that murderous speech, knowing that that kid is totally innocent.”

It appears to me that both defense and prosecution agreed to steer clear of any mention of FBI involvement in the brother’s lives, in exchange for sparing Jahar’s life. Nevertheless, the judge is acting outrageously, constantly interrupting the defense and even at one point inserting his opinion that “there isn’t much evidence” that the accusations against Jahar are not true! How can that be legal? Whose job is it to censure a Federal judge?

Someone in touch with Jahar’s family shared with me several audiotapes of Jahar’s loving mother, which make clear that he comes from an intensely affectionate and deeply religious family. Whatever he did or did not do, he is not the victim of poor upbringing. “I wish you would have known how full of love we all were… how happy we all were…” Tamerlan used to kiss all of his mother’s toes, saying, “This is my paradise!” Jahar would become possessive and demand to massage her other foot insisting that he should be allowed to share in paradise!

According to his mother’s descriptions of her weekly phone calls with her son, Jahar seems to be in a highly elevated state of iman:

“Allah is with us, Allah watches us always… Everything is by Allah’s will. This is another test for us and we are thanking Allah, we never complain and we know that everything Allah does is for our benefit if not in this dunya then in the Hereafter... inshallah we all will rejoin in Paradise… Tell her (his sister Ailina who cannot visit him due to false accusations) to be patient and not to cry... whatever Allah’s decision is, that is what we are happy with.”

Interpret it how you will, this the mental state of the surviving brother. His sister Ailina gets up late at night to pray for all the Believers.

“We need to love each other like one body,” Jahar’s mother Zubeida implores us. 

“Alllah azza wa jal. He knows how his brother loved him and his brother will be waiting for us inshallah by Allah’s will in Hereafter and we will be all together inshallah.”

Boston Gears Up for Bombing Trial

http://newtrendmag.org/ntma1583.htm

The past couple weeks have been strange, with the defense for Dzhokhar Tsarnaev filing a motion to keep protesters who were supporting their client away from the courthouse! (?) Tsarnaev’s attorneys oddly argued that the presence of demonstrators, whose arguments vary, would rob Tsarnaev of his right to a fair trial. The defense again frantically requested for a third time a change of venue the late afternoon of New Year’s Eve,arguing that “every member of the jury pool is, in effect, an actual victim of the charged offenses.”

Judge O’Toole routinely denied the defense request at the advice of the prosecution, who insisted that the trial should be conducted in the community most affected by the bombing. "Moving the trial out of the Eastern Division would create an enormous hardship for those victims and their families, depriving many, if not most of them, of any ability to see the trial."

Harvey Silvergate writes in the Boston Globe, “The Oklahoma City bombing prosecution furnishes an instructive precedent that strongly suggests that Tsarnaev should not be tried in Massachusetts. It is a precedent that O’Toole has recklessly misread and misrepresented in denying a venue change… O’Toole ignores yet another precedent, this one right in his own back yard.”

Boston Judge Wolf decided to postpone the sentencing trial of Gary Lee Sampson, who was convicted in 2003 of the carjack killings of three men, Silvergate continues, “out of an abundance of caution, erring on the side of a fair trial that is supposed to be the norm especially when the death penalty hangs in the balance. O’Toole instead is erring on the side of expedition. Efficiency can be overrated when justice, and our own adherence to civilized and constitutional norms, hang in the balance.”

After being found guilty, Sampson was sent to New Hampshire for execution, since Massachusetts does not allow the death penalty. If a Bostonian can be found guilty in Massachusetts and executed in New Hampshire, why can’t a Bostonian get his trial moved to New Hampshire, where the libertarian population is more likely to question the FBI’s story?

Bostonians are largely debating the death penalty vs. life in prison rather than innocence vs. guilt. A 2013 Boston Globe poll found that 57% of Bostonians favored life without parole for Tsarnaev, while 33% favored death.

Jury selection is expected to begin on Monday, January 5, 2014.

Attorney Judy Clarke has made overtures to prosecutors about a plea bargain, according to a lawyer close to the case. But so far she has been rebuffed, reports the NY Times. Imprisoned friend Stephen Silva is expected to confess to selling or giving a gun with an obliterated serial number to the Tsarnaevs in February 2013, due to FBI evidence against him obtained by the wiretapping of an informant, two months before the April events. Media insinuates, but court documents do not clearly link the gun to the killing of MIT officer Sean Collier.

The official prosecution narrative centers on the story that Tsarnaev, angry about the killing of Muslims in Iraq and Afghanistan, scrawled incriminating messages (“Stop killing our innocent people and we will stop”) on the inside of the boat where he was captured. This message appeared about three weeks after his arrest, just in time for the grand jury hearing, and is therefore rather suspect as evidence. I think it is baloney that Jahar just happened to have a Sharpie and suddenly began to compose a manifesto after having been shot multiple times.

What is important to acknowledge though, is that Bostonians, and the American people in general, are desperate to execute Tsarnaev as a terrorist rather than to pity him as a wayward teen - BECAUSE of the erroneous belief that he was retaliating against America for propagating massacres overseas. BECAUSE of the deep dark guilt inside the American conscience. The hysteria that this kind of propaganda arouses points to a dark side of American ignorance and exceptionalism. The idea that a Muslim kid might say that retaliation is justified makes this a high profile case. He might even end up publicly hanged on TV like Saddam Hussein (God forbid)! But what about the random jerk off his meds who guns down a classroom? Not news. The United States is treating Tsarnaev like a scapegoat that they can just load up with all their baggage and send him out to the desert to “take away the sins of the world.”

Indeed if Tsarnaev had committed bombings in the name of Islam, in retaliation for Muslim deaths overseas, he would be protected by international law. The United Nations could recognize him as a political prisoner and he would enjoy certain rights enforceable by the international community. If Tsarnaev is truly an Islamic jihad terrorist, where is his legal support? Where is his army? There is none because he never was a jihadi despite some general interest in Islamic causes such as sympathy for Gaza and Syria. He also has no background of crime or any issue that would consider him to be a disturbed youth. He was a lifeguard, who volunteered to help handicapped kids. He was a well adjusted and very popular kid. 

Is that what this trial is going to boil down to? The right of a well-adjusted American kid to openly care about Muslim suffering?

FBI Monitoring Prison Visits of Defense attorney with Marathon Bombing Suspect

A pre-trial hearing for Dzhokhar Tsarnaev took place on June 18, 2014. US Attorney Carmen Ortiz was front row in the audience. Ortiz has ambitions to be governor and is no doubt using this terrorism prosecution as a personal career move.

As they have done in every hearing, defense lawyers requested the removal of Special Administrative Measures (SAMs) restrictions on their client, who is being kept in total lockdown. Lawyers have been complaining that they are unable to meet with Tsarnaev without the presence of an FBI officer in the room. During the last hearing on April 24, Judge O'Toole agreed with the defense that there is no national security reason why an FBI officer needs to be present and felt that the prison security should suffice. Although prosecutors insist that the FBI officer present is not going to be a witness at the trial, defense attorneys reported that the FBI officer was taking notes. The judge refused to remove SAMs and told the government they should use an out-of-state FBI agent during prison visits. The Constitutional protection of attorney-client privilege clearly does not apply especially when the defendant is a Muslim.

The defense complained about media leaks. Instead of handing over evidence to the defense, the government is working with the media. FBI agents were interviewed for TV documentaries that aired on National Geographic and 60 Minutes commemorating the one year anniversary of the bombing. These reports, which conflict each other in many ways, served to influence the minds of the public regarding guilt, long before trial. Defense attorneys complained that it is only on TV that they are learning what the prosecution's case is. Judge O'Toole admonished the government for participating in media interviews, calling it "unwise," but refused to penalize them in any way.

Throughout the proceedings, the defense has been muzzled. Attorneys have been warned against making any statements to media or even talking to friends and supporters about the case. Previously, government prosecutors brought up the possibility that defense attorneys might pass along messages from Tsarnaev to his "following" - very similar to the situation with Shaykh Omar Abdul Rahman's attorney, Lynne Stewart, who was imprisoned in retaliation for making statements to the press regarding statements her client made, except that Tsarnaev is not a political or religious leader with any following other than people following his case.

Tsarnaev cannot read any of his mail without a lawyer present and has been advised not to answer any of his mail. Likewise, his family cannot speak to the media about their belief in their son's innocence, lest they be accused of "passing along messages."

The only good thing coming out of this hearing is that the government's emotional tactic of accusing Tsarnaev of "betraying America" was struck down.

"I agree with the defense position that it was unduly prejudicial," O'Toole said, calling this type of charge "obnoxious."

However the prosecution will continue to use "He was comforting our enemies" as an argument for motive in the trial. It appears that pushing the issue of Tsarnaev's interest in Islamic causes will be central to their case. This would imply that they lack evidence, or that the evidence they have would not make the government look good. So far, they have swamped the defense with millions of pages of inconclusive, grainy photographs and some computer files showing that Tsarnaev watched jihad-related material on his laptop, but they have refused to hand over tangible evidence like the GPS of the vehicle that was used to flee from police the night Tamerlan Tsarnaev was killed.

The prosecution asked the judge to demand that the defense supply them the name of their witnesses that they would use to counter the government expert witness' testimony on the Islamic nature of the Boston Marathon bombing. Presumably the government "expert witness" will be the laughingstock, Evan "Saddam is allied with al-Qaeda" Kohlmann, who has already been testifying in front of Congress about Tsarnaev's Islamic motivations long before he has even been found guilty. Defense attorney Judy Clarke argued that this is not standard practice, and according to the Fifth Amendment, they are not required to disclose this type of information to the prosecution at this point in the proceedings. O'Toole delayed making a decision.

US prosecutors say they will not use statements Tsarnaev made during his hospital bed FBI interrogation before his Miranda rights were read, during the guilt/innocence part of the trial but may bring it up for the sentencing part. Defense wants the evidence of these statements to be suppressed. O'Toole delayed the decision for mid-trial.

Tsarnaev's next status hearing is scheduled for August 14. 

2014-06-21
NewTrendMag.org

Dzhokhar Tsarnaev Standing Tall Despite Execution Threat

 TMO 

Trial Scheduled for November, No Plea Bargain in Sight

Artist’s rendering of an earlier Tsarnaev appearance in court.

“Attorney General Eric Holder’s January 30th announcement authorizing Federal prosecutors to seek the death penalty for Tsarnaev (if convicted), does not appear to have alarmed attorney’s for the accused in any way: In fact, they now appear wholly intent on taking the case to trial,” reports blogger B. Blake.

“This is in stark contrast to virtually all of death penalty lawyer Judy Clarke’s previous cases, none of which have ever proceeded to the trial stage. For example, Jared Lee Loughner, Eric Rudolf and bomber Ted Kaczynski all accepted plea deals in their efforts to avoid a trial and face possible execution.

The courtroom was packed on February 12, 2014 for the latest status hearing for Dzhokhar Tsarnaev, which lasted about 30 minutes. Several Boston Marathon bombing victims were in attendance, organized by lead prosecutor Carmen Ortiz, who was reportedly very “friendly and familiar with them.” The victims were kept in a separate room from the public before the hearing. MIT Police Chief John DiFava was there, claiming to represent MIT Officer Sean Collier, who was allegedly killed by the Tsarnaev brothers. DiFava is pushing for the death penalty. Many Tsarnaev supporters and media skeptics were also in attendance, as well as the usual throng of journalists.

The crowded courtroom provided witnesses a lively debate that demonstrated that the government might be overconfident about their sure win. While the prosecution talked, balked and stuttered in boring circles, defense attorneys Judy Clark and Miriam Conrad were on point and downright entertaining. Prosecutors had not heeded Judge O’Toole’s order from the last hearing to start cooperating with discovery. This naturally cast doubt upon the validity of the prosecution’s case against Tsarnaev.

The issues at hand were the trial schedule and discovery. The defense asked for a September 2015 trial date in order to have enough time to prepare, in light of ongoing government obstructions of discovery, while the prosecution wanted to rush through the legal proceedings and go straight to the penalty phase. On the surface, O’Toole appeared to side with the prosecution, setting a November 2014 trial date, saying, “I think it is appropriate to do some scheduling.”

“The judge probably knows full well that 11/3/14 isn’t a realistic trial date but set it in part to keep things moving along,” tweeted Attorney David Frank, managing editor of Massachusetts Lawyers Weekly.

Judy Clarke explained to the judge, “I understand the court’s desire to move this along but I don’t see us identifying experts by the time we go to trial.” She pointed out that death penalty trials are broken into two parts: a liability phase and a punishment phase.

US Attorney Aloke Chakravarty answered sourly, “Let’s not kid ourselves. The issue here is going to be in the penalty phase.”

This degree of prosecutorial arrogance did not come across well. If Tsarnaev is convicted it will be the same jury that will determine if he will live or die.

“I considered Chakravarty’s comment to be totally inappropriate,” stated a court observer named Jane.

Frank tweeted, “If judge forces Tsarnaev to trial before his lawyers are ready, the judge would be creating a whopper of a legal issue on appeal if convicted.”

Clarke complained that they cannot go forward with the case because the government has not been complying with requests for evidence. Defense attorney Miriam Conrad pointed out that the government is supposed to respond to a request within two weeks.

“They said they’d get back to us after the holidays. Apparently their definition of ‘the holidays’ includes Martin Luther King Day!” Ms. Conrad then went on to say that she had been unaware that “the holidays” extended nearly up until President’s Day!

“Chakravarty’s excuse for the delay in providing access to discovery to the defense was that the defense had not been ‘specific’ in regards to what items of evidence they wished to have access to,” reported Jane.

Tsarnaev’s defense team said they had never experienced anything like this.

“We got radio silence from December 18 to February 7,” Conrad said. “With that kind of response, I don’t know how we could possibly move forward.”

“Discovery in this case has been way outside the norm in my experience,” complained Clarke, who has taken on many capital cases.

“We’re really having a hard time getting access to information. Discovery is not completed. It has been a laborious process… slow and cumbersome. When we ask for something they say narrow it down. We do, and then it’s not enough… We can’t get forensic reports. We have no idea where they are going.”

The government has handed over millions of pages of electronic files, but these are still not even labeled, let alone searchable, despite previous court orders. Additionally, the defense is asking for information on how this evidence was gathered.

The FBI is holding some 2,000 pieces of physical evidence in Quantico, Virginia and two other locations. Chakravarty claimed that the defense has had the opportunity to review this evidence, but Clarke responded that she has a “slightly different view” of where the evidence is and how it can be obtained. The FBI keeps giving them the runaround.

“It’s not us that’s dragging our feet, we’re really struggling to get access… We’ve had a little bit of a sluggish shall I say start to reviewing physical evidence.”

Clarke said that defense attorneys have repeatedly and unsuccessfully tried to schedule an appointment with the FBI to view these pieces of evidence and have no idea what they are. “As far as we know, the evidence is 2,000 BBs.”

She also pointed out the hardship of traveling back and forth each time. She flew in from San Diego for this hearing. She is also having trouble meeting family in Russia because of the Olympics.

“There’s just a tremendous amount of logistical hurdles,” she said.

The judge asked Chakravarty if he was going to start supplying the defense with some actual information. The prosecuting attorney stammered and stalled for at least a full minute before agreeing.
Judy Clarke quipped to the judge: “You have a black robe and it took you that long to get an answer from the government on discovery. Imagine what we are going through.”

“This is undoubtedly going to be a lengthy trial,” O’Toole said. He warned the prosecution that their lack of cooperation could endanger the trial schedule and instructed them to “avoid unnecessary accumulation of even relevant evidence.” He ordered the government to supply a list of evidence by the end of the week.

Unfortunately for reporters and the public, the evidence files will be sealed. Likewise, the court documents filed on February 11 were sealed.

“Outside the courthouse, some supporters of Tsarnaev said they still believe the teen is innocent,” reported Michele McPhee from ABC. One woman, Lisa Figueroa, 36, drove to the federal courthouse in South Boston from New York City to show her support.

“They won’t let him write letters which is wrong,’’ Figueroa said. “I’m not one of these girls who thinks he is a rock star. He’s accused of terrorism. It’s serious. I just think he could be my little brother.”
Kevin, 31, of Boston told TMO he believes Dzhokhar was set up by the government.

A woman who was a bystander at the marathon in front of the forum said she witnessed them remove a mailbox to hide evidence. Even a tree was uprooted from the crime scene.  Some believe the angular momentum of the shrapnel would help narrow down where in the crowd the explosion came from. The witness mentioned that the smoke smelled like sulphur or rotten eggs. It did not smell like fireworks.

“It’s not American for a suspect to go from isolation to execution without ever getting to explain his side of the story,” another bystander told reporters, questioning the plausibility of many of the government accusations.

“I left the courthouse today feeling a lot more positive than I have done in a long time.” said Jane. “There is no way the prosecution is going to be allowed to continue their prevarication.”

Several Tsarnaev supporters told TMO that their mail is being returned, opened.

Court Hears Tsarnaev Arguments

November 21, 2013 by TMO 

[NOTE: The drawing below is inaccurate. According to people who were there as well as cell phone photos taken secretly, Tsarnaev's had was immobilized in a tight splint or cast. He could not move his wrist as is depicted below. Makes you wonder about those courtroom sketch artists!]

On November 12, 2013 lawyers for and against Boston Marathon bombing suspect Dzhokhar Tsarnaev appeared before Judge George O’Toole for a motion hearing and status conference. Federal attorneys Bill Weinreb, Nadine Pellegrini and Aloka Chakravarty expressed eagerness to push forward with the trial while defense attorneys Tim Watkins, Miriam Conrad, William Fick and Judy Clarke argued for more time, as the government flooded them with over 100,000 pages of documents including a massive volume of tweets and inconclusive grainy photographs, which they must sift through.
Defense attorney Watkins told the judge, “We almost know what we don’t know. The case is moving along. None of us is sitting on our hands looking for things to do.”

After going through the discovery documents, the defense team plans to file motions to suppress or dismiss evidence and ask for more information.

The government is so far withholding evidence that has been specifically requested by defense attorneys, such as the Tsarnaev family’s immigration records, autopsy reports of Tamerlan Tsarnaev and Ibragim Todashev, and any actual evidence for new government accusations against the two dead men along with the defendant. The government won’t release evidence for their claims regarding Tsarnaev’s alleged link to the Waltham murders stating it’s an “ongoing investigation.”

US Attorney Weinreb said he wants the trial to begin in fall of 2014 and wants all discovery motions to be filed within 90 days. He estimated the trial would last 90 days and sentencing would take 6 weeks. Weinreb denied that discovery is incomplete. He believes the government is entitled to withhold information from the defense in order to bring it up later during trial. He said the government will not release autopsy photos but that defense lawyers are welcome to look at them.

Attorney Conrad argued against the government’s proposed “rocket schedule” for one of the “most complex crime scenes in history,” and explained that there is a warehouse full of unlabeled documents related to this case to go through. She demanded the government immediately provide “all exculpatory and mitigating evidence,” so that the defense would be “better able to understand where the government is going.”

Attorney Fick reminded the judge that establishing guilt or innocence of the accused should be the goal of the court.

Judge O’Toole set the date of February 28, 2014 for motions not related to discovery, including  a possible change of venue or requests for dismissal of charges, but agreed to defer the trial date. The next status status conference is scheduled for February 12, after the government is to have made its decision regarding the death penalty.

The attorneys then discussed the Special Administrative Measures (SAMs).

Judge O’Toole said, “I agree enough with the defendant” regarding problems with preparing an adequate defense, but he claimed he did not have the jurisdiction to deal with Constitutional issues such as group prayer. He said these concerns should be brought up in a civil suit by a third party in front of a different judge. He said his job is to determine “not whether SAMs are annoying but if they are limiting.”

Earlier this month the ACLU filed a memorandum with the court calling Tsarnaev’s prison conditions “torture,” but O’Toole ordered the ACLU memo expunged from the federal court record and barred the ACLU from making a statement at the hearing.

Attorney Fick argued that SAMs are “unwarranted” as Tsarnaev is not a political leader. He said the SAMs restrict the defendant’s right to defend himself, because they limit who can see Tsarnaev outside the company of an attorney.

SAMs also tacitly threaten defense attorneys with possible incarceration if they defend their client’s innocence too vigorously. Without mentioning the name of Attorney Lynn Stewart, who is now dying in prison, Attorney Clarke mentioned in court that “attorneys have been prosecuted for differing from prosecutors in their interpretation of SAMs.”

SAMs prevent Tsarnaev from speaking confidentially with his lawyers, and prohibits them from discussing their conversations with Tsarnaev, or relaying messages from him, even a greeting. Tsarnaev’s lawyers are not allowed to talk to any potential defense witnesses without an agent of the federal government there. Tsarnaev’s lawyers argued that SAMs are preventing them from building a fair case in his defense.

The prosecution claims Tsarnaev’s communication needs to be restricted to prevent him from inspiring further acts of violence. The government worries defense lawyers might pass some sort of message from Tsarnaev to a person on the outside. Tsarnaev’s team complained of government prosecutors’ collusion with the Bureau of Prisons.

“The government has no business knowing the details of attorney meetings in prison,” argued Clark. “The prosecution has no business knowing which member of the defense team sees Tsarnaev, when, and what is shown to him.”

“This is not a level playing field,” Conrad told the court. “It appears the government is trying to retain every possible advantage in this case for itself.”

The prosecution said the Attorney General has the authority to institute SAMs and it is the burden of the defense to determine that what is being disseminated to third parties is strictly legal.

Judge O’Toole asked that attorneys agree on a list of people with legal access to the prisoner but would not make any ruling about SAMs, so the restrictions remain.

Next, Conrad reiterated the defense request that the government turn over all the information they have. When the indictment includes a capital charge, it’s a capital case, she said. There should be no need to wait for disclosure. The government has a global network of investigators, police, and witness statements, while the defense must rely on the government to inform them.

Weinreb said they don’t have to provide more evidence until after the decision about the death penalty. “We have turned over everything that we deem to be exculpatory or relevant to mitigation.”

Conrad argued that basic fairness is the core issue. She accused the government of “splitting hairs” over types of evidence. The government is not providing the defense access to their investigation. The defense would have to go through a long process to obtain documents when the government could get it with just a phone call. “You do your investigation and we’ll do ours, is what the government seems to be saying.” Conrad told the court that the government’s resources are global while we are just a handful of people with limited time who have other clients also.

So far the government has not said what information they have from foreign or intercepted sources. Defense attorneys want to interview the CIA. Conrad argued that the government should not be able to decide what information to provide and withhold, or provide summaries instead of transcripts of interviews or secret grand jury statements. The government won’t even provide non-secret information that explains the circumstances or context of available witness statements. The defense has asked for information about Tsarnaev’s repeated requests for a lawyer during his initial hospital bed interrogation. The government is withholding documentary evidence including signed statements, while at the same time pushing for a quick trial date.

Prosecutors claim it is “premature” to disclose information about the Russian communication to the US but Conrad insisted that “the judge has the authority to compel evidence” that is required to make the defense job efficient.

The prosecution said they will show the Russian communication and other key information secretly to the judge, but not share it with the defense.

Prosecution denied the government is withholding any favorable evidence but said the government is withholding unfavorable evidence in order to use later in the trial. Weinreb said the defense is not allowed to second guess the government about whether all evidence has been disclosed and denied that the government is inhibiting investigation.

The defense has asked for files that the government could easily provide. The government won’t give a reason why, but just keeps saying it doesn’t need to provide the information right now.

“This is just plain wrong. We are entitled to information in an orderly and efficient manner,” argued Attorney Conrad.

Judge O’Toole said he would take the matter into advisement.