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.

http://newtrendmag.org/ntma1631.htm

Finally, we see him!!!

Dzhokhar (Jahar) Tsarnaev’s last pre-trial hearing took place Thursday, December 18 at 10am. Drone footage shows him being brought into the courthouse around 6am wearing shackles and an orange jumpsuit. He looked thin and seemed physically weak. The courthouse entranceway was a zoo, with a huge crowd of reporters, Homeland Security, FBI, police and protesters even before 8am. The massive audience filled the courtroom, plus two overflow courtrooms and the jury assembly hall, where the proceedings were shown on livestream video. About a dozen people identifying as victims of the Boston Marathon bombings also attended. Those watching on video were able to hear the judge clearly and see the defendant’s face while those experiencing the hearing live saw only his back.

Jahar sported wild, unkempt curly hair that was almost an afro, standing many inches above his head. He has grown a short beard. His eyes were downcast most of the time. He touched his face and nose a lot. His feet remained in shackles, while he sat in a relaxed slouch with his knees open throughout the 25 minute hearing. His facial expression seemed a bit weird and befuddled - quite intense yet not quite there - perhaps a side effect of being kept in isolation for over a year. He seemed almost disoriented, but maybe he was just exhausted from being hauled out of bed in the middle of the night. A supporter later asked his mother if he was taking medication and was told no, he won’t even take aspirin for a headache. He was wearing a black sweater over a white button-down shirt and slacks for court.

Judge O’Toole asked Jahar whether he had voluntarily chosen not to be present for any of the previous hearings; whether he had been kept up to date on the proceedings; and if he was happy with his representation. Jahar answered, “Yes, sir” to the first two questions and “pretty much,” or “very much” to the last question. This is the first time the public had heard his voice since he pled “Not Guilty” in 2013. The rest of the hearing was nothing special, just going over the motions. Judy Clarke patted him on the back a few times. Until…

As Jahar was handcuffed and taken out of the courtroom after the hearing, a woman in the courtroom started yelling loudly in Russian: “There are many people here supporting you. We are praying for you. We love you. We know you are innocent! Stay strong, my son!”

Onlookers report that he heard these words and smiled, although he did not turn around.

“I'm pretty sure his lawyers were not happy! Lol! I saw Miriam Conrad's face was like a wtf moment ... But I can tell Jahar was relieved. Jahar appreciates It,” stated an onlooker.

As the US Marshalls escorted her out, Elena shouted in English, “Stop killing innocent people! Stop killing innocent boys!”

Elena Teyer, US veteran and the mother of Ibrahim Todashev’s widow, then suddenly gave an impromptu press conference to hoards of reporters for the next one and half hours outside. Thank God! It worked out very beautifully that way because of the gag order that prevents Jahar’s lawyers from even stating that their client is innocent in public. Even the prosecutors made no statement to the press. Elena passionately defended Jahar’s innocence and all his friends. She decried all of the lives that have been destroyed because of FBI lies and games.

The ongoing arguments between the defense and prosecution are that the defense wants a “continuance” - in other words, more time to prepare. The government is demanding (and I would say bullying) the defense to provide detailed information about witnesses, even though it has been made clear that the witnesses are feeing too intimidated.

About 8 protesters held up placards after the hearing. About half were from out of state while the rest were local. One sign read: “Got proof? Innocent until proven guilty.”

There was a moment where a Bostonian named Marc who had lost half of one leg in the Boston Marathon bombing, waved his empty pant leg at the demonstrators. “We all wished we could have talked to him longer. He said something about what was found in the dorm room and I said have you never played with fireworks? We have to make sure we got the right guy!! It’s important. He reportedly told me to get a job LOL,” said a local supporter.

see video: https://www.youtube.com/watch?v=ClmT70PfZRI

What was most astonishing about this hearing is that the government continues to waste the public’s time by insisting that a certain Ms. Vogelbruck be denied as a witness, because as a social worker she has interviewed a lot of people who ever knew the Tsarnaev family. Weinreb argued with his familiar smirk that he needs to know what she might say, in order that he could come up with an appropriate comeback.The government isn’t playing fair.

This is a government prosecution that was able to feed HBO and the History Channel all the statements they wanted to make, extra legal. I’d look into the government cable TV link.

The ongoing “live dispute” pertains to the list of witnesses who might testify as character witnesses in the event of a Guilty decision.

Jahar seems resigned as a noble Chechen would be, to the fate of Allah.

He absolutely refuses to plead guilty for a crime he did not commit.

Judge Humiliated During Tsarnaev Hearing

TMO 

On April 16, 2014 TMO attended a status hearing for Dzhokhar Tsarnaev, 20, who faces a 30-count federal indictment for his alleged role in the Boston marathon bombings. Tsarnaev was not present in the courtroom, nor were his family members. The 1½-hour hearing took place before Judge George O’Toole. The US government was represented by Aloke Chakravarty, Nadine Pellegrini, and William Weinreb while only two of Tsarnaev’s lawyers were present: Miriam Conrad and David Bruck, the death penalty specialist recently appointed to the team. US District Attorney Carmen Ortiz was in the courtroom.

“Judge O’Toole wasted no time announcing his decisions on two of the motions before the court. Without hearing any arguments, he matter-of-factly denied the government’s motion for a protective order barring Tsarnaev from viewing the autopsy photos of the four people killed in the bombing and its aftermath. He also denied, without prejudice, a defense motion to dismiss several counts of the indictment. The defense team had argued that the charges were redundant and duplicative. ‘I think it’s premature,’ Judge O’Toole explained, adding that the motion could be revisited at the time of the trial,” reports Victoria Liberty of the Freedom Bulletin.

The first discussion topic was Tsarnaev’s visitation rights under SAMs (Special Administrative Measures).

Attorney Bruck requested SAMs be vacated. He complained that  Tsarnaev’s legal team is not allowed to speak with him without an FBI officer present, which creates a problem since the FBI is on the prosecution team. This results in “fearful conversation” with family members and denies lawyers the ability to see the “story of the family.”

US Attorney Pelligrini countered that the SAMs have already been modified. There are now 12 people who have permission to visit Tsarnaev, including lawyers, paralegals and investigators. Pelligrini said the defense is “unable to control what the defendant says.”

“What’s quite clear is the defendant felt clear to say whatever he wanted, despite the presence of the FBI investigator.”

Bruck said there is no national security reason to allow an FBI agent to listen in on family conversations. The FBI will spin anything said.

They were both referring to a recent incident when Tsarnaev joked to his sister about the SAMs restrictions, making light of the uncomfortable situation. The FBI leaked to the media that he was making inappropriate statements that demonstrated his lack of remorse for his crime.

“At least we want the FBI agent who’s listening in on these conversations not to pass information to the prosecution,” argued Bruck.

The prosecution argued that Tsarnaev can always talk to lawyers freely, but when his sisters are there it is a social visit that warrants FBI monitoring. This makes very little sense from an investigative standpoint. The FBI presence can only make the Tsarnaevs nervous about talking. If the FBI wanted information they would leave them alone with a recording device.

The government insisted that Tsarnaev will “pass messages” to the public if they let him talk. “Information is being transmitted!” Pelligrini warned.

Tsarnaev had been imprisoned without incident until Attorney General Eric Holder, alarmed by the thousands of letters Tsarnaev received supporting his innocence, called for restrictions on Tsarnaev, claiming there was “substantial risk” that his “communications or contacts with persons could result in death or serious bodily injury” to others, insinuating that he had “followers” that would commit violence at his command.

Judge O’Toole sided with the defense. He said the normal prison visitor screening and security measures were sufficient for public safety. He felt the defense is being limited in their ability to defend their client by the FBI presence during their meetings. He ruled that since family visits are only allowed with a lawyer present, they should be considered legal visits exempt from monitoring and not as social visits, since understanding family dynamics is relevant to the defense.

“If the security interest is higher than the investigative interest, then a party other than the prosecution should be present,” said O’Toole. “The defense team ought to have an opportunity to have a 2 or 3 way conversation among siblings. I don’t think the safety, security issue looms very large.”

The government rather insolently retorted that the Warden is able to restrict visits even without SAMs.

“Is the court ordering the BOP to not impose restrictions?” Weinreb seemed to dare the judge.

Weinreb openly undermined the judge’s authority, telling him if you order this, we will go around you. The prosecution seemed to be talking to the judge like an employee!

Judge O’Toole submitted to government pressure, conceding to allow in a BOP lawyer to argue against reducing prison restrictions before he made a decision in two weeks.

Next, the lawyers moved on to discovery disputes.

Defense Attorney Miriam Conrad stated that “as a result of government failure to meet discovery deadlines, we are now at a disadvantage.”

Conrad said the government is not following normal protocol to respond within two weeks to discovery requests and the defense had not received certain long requested documents until Friday last week.

“We have had no opportunity to submit a response,” she said.

Conrad stated that the defense still does not have the Todashev interview materials, and insisted that they are entitled to know what he said during the FBI interview.

The government says the information should not be public.

“But they have leaked so much to the public already,” Conrad argued.

Weinreb said the government has no legal obligation to produce the requested materials, although they agreed to voluntarily provide some information.

The defense wants information on how Tamerlan “slit the neck of 3 helpless people,” Bruck explained, because, “This case is very much a story about a family and the relationships between them.”
“Todashev implicated himself and Tamerlan in the Waltham murders, not our client. It’s not clear if Dzhokhar knew of the crime,” stated Conrad.

Weinreb said Todashev’s interview is not related to this case and “has no relevance.” This is curious since it was the prosecution that added the alleged confession into the court documents in the first place.

Now he says Tamerlan’s influence on Dzhokhar “relates to what he knew, not what happened.”

In court papers, Dzhokhar’s lawyers argued that Tamerlan “was an all-powerful force who could not be ignored or disobeyed.”

Weinreb responded that there is no indication that Dzhokhar knew of Tamerlan’s murderousness, and that is all that is relevant.

O’Toole had denied the request in November for Todashev documents on the grounds that law enforcement privilege protects disclosure of files in an ongoing investigation. Now that the FBI has issued a report clearing itself of any wrongdoing regarding the killing of a potential witness, O’Toole said he would ponder the defense request for the Todashev statement after viewing it privately, “in camera.”

The ACLU is currently suing the FBI and US District Attorney Carmen Ortiz over the FBI murder of Todashev. The ACLU of Massachusetts is calling for state Attorney General Martha Coakley to conduct her own independent investigation into Massachusetts law enforcement’s involvement in the Todashev shooting in the name of transparency and accountability.

The defense has argued that the FBI had pressured Tamerlan to become an informant. Could Todashev have had damaging information about links between Tamerlan Tsarnaev and the FBI? A genuine investigation would reveal information about the FBI that could hurt the case for the prosecution.

“While some of this circle of friends in Florida, like Todashev, faced pressure to confess to participating in or having knowledge of the Waltham crime, others, according to CAIR’s Shibly, have been told that if they want to be left alone and not deported, they need to become informants. He says several of those harassed have opted to return to Russia rather than become spies for the FBI in Florida’s Muslim community,” reports firedoglake.

I have to assume the defense is aware that Tamerlan probably didn’t commit the triple murder in Waltham – one of the victims was his best friend. An investigative journalist for WBUR told TMO she suspects the crime was related to a local drug ring.

However, for the sake of argument involving requesting documents related to Todashev, the defense appears to accept the government story. They’ve also suggested that Tamerlan suffered from mental illness, saying his “paranoia and distress” were fueled by an FBI attempt to recruit him as an informant to report on the Chechen and Muslim communities in Boston.

“We base this on information from our client’s family and other sources that the FBI made more than one visit to talk with (Tamerlan’s parents) and Tamerlan, questioned Tamerlan about his internet searches, and asked him to be an informant,” the defense motion states.

The government denies the allegation.

Defense lawyers want to see FBI documents to confirm their allegation. Naturally, the government is not cooperating.

Next, the defense argued for access to lab reports and other materials. The government is delaying or refusing to provide information about its mental/physical examinations of Tsarnaev and other investigations including computer searches.

“How can prosecutors argue with a straight face that computer or phone searches aren’t material to the Tsarnaev case? I don’t know how a search of a computer and what they revealed is anything other than an examination under rules of discovery!” Conrad argued.

“They thought it was material to search 12 computers. If we have to conduct our own studies of hard drives it will take longer and be very expensive.”

Obviously whoever has Tsarnaev’s debit card, computer and cell phone information can easily figure out where he was and what he was doing before, after and during the marathon.

Aloke Chakravarty, who was the lead prosecutor in the case against Tarek Mehanna, whose trial was also overseen by O’Toole, now argues that evidence from government computer searches isn’t relevant to Tsarnaev. But at Mehanna’s trial he heavily relied on chat messages and computer files to make the case for the prosecution. If the government doesn’t want to reveal computer and chat records now, this would imply that the information obtained from Tsarnaev’s computer/phone might be more useful for the defense than for the prosecution.

When the defense asked for any information obtained under secret surveillance programs, the prosecution said they will not reveal this information, unless they plan to use it at trial.

As she asked for FISA (Foreign Intelligence Surveillance Act) information, such as intelligence that the Russian government had shared about Tamerlan and his radical leanings, Conrad commented, “I have been puzzled all along by the government’s rather opaque responses to our requests for FISA notice, and I continue to be puzzled.”

Conrad argued, mentioning the Patriot Act: “First the government says they do not intend to use FISA obtained evidence, but there are indications of Homeland Security surveillance. Then the government takes the position that we are not entitled to notice their data mining. The defense has a right to challenge how information was obtained and to challenge admissibility.”

The defense may move to suppress evidence gleaned from computer searches on the grounds that the searches exceeded the scope of the warrant. Any such motions are due on May 7th.

Chakravarty stated, “The government doesn’t want to be in a position of foreclosure just because the defense provoked a response. We can put to rest right now whether there is any secret evidence. There isn’t.”

O’Toole said that because the government said it doesn’t plan to use any surveillance material at trial, there is nothing for him to rule on. He denied the defense motion to obtain this information. Prosecutors will have to give proper notice if they plan to use any evidence, and if they don’t, they can’t.

O’Toole says he plans to discuss expert witness disclosures at the next hearing on June 18. He chuckled aloud to himself that this is no ordinary case.

Dzokhar Tsarnaev is scheduled to be tried on November 3.

Conrad expressed doubts that the defense could be ready by that date, given the government stalling to avoid handing over documents.

“I’ll make you a believer,” said O’Toole, who intends to stick to the schedule no matter what.

I sincerely hope this trial will proceed with a fact-based format rather than the tactics that Miriam Ortiz and her employees have previously used, basically overwhelming the jury with irrelevant, unsubstantial, prejudicial, and downright false evidence.

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.