First post-trial hearing

by Woody Box


The first hearing after Dzhokhar Tsarnaev's sentencing took place on December 1 and was about four subjects: the penalty phase, the SAMs/attorney privilege, the restitution bills and the unsealing of certain sealed filings. Nothing spectacular has been reported: finger-wrestling between prosecution and defense, in between a judge reserving decisions - business as usual, so to say.

Because Jane24 has attended the hearing BBN is in the lucky position to convey information about the "vibrations" in the courtroom. These are most valuable to obtain hints on the defense strategy. After the trial and sentencing, many observers have suspected and accused the defense team of "foul play", i. e. not fighting for him and neglecting to address weak points in the prosecution's narrative. Which is quite understandable given their passive role in the guilt phase. However, Jane24 and I have always dismissed attempts to undermine the defense's integrity and insisted that the restraint is presumably only tactical and temporary. 

The demeanor of the actors in the courtroom seems to confirm the latter theory. According to Jane24, Miriam Conrad delivered an awesome and forceful performance. When responding to Weinreb, she appeared angry and outraged. She stressed that "the litigation is far from over", "there will be appeals", "the defense function is alive and well" and disclosed that there are quite a few experts who visited Dzhokhar but were not called to trial. The prosecution demanded to learn the identity of these experts.

Judy Clarke was also attendant, but said little. Quite obviously she's not the leader of the defense team or the chief strategist. Her main job was to get Dzohkhar off the death penalty.

Combined with an irritable, mumbling judge who apparently felt very uncomfortable the hearing seems to have been underlaid by a subliminal but strong tension. This trial is far from over.

The fact that the guilt question was not touched at the hearing doesn't mean that it will not arise in the future. On August 17th the defense filed a "motion for judgment notwithstanding verdict (judgment NOV) and new trial" (docket nr. 1506). This is basically killing two birds with one stone. The request for a new trial is self-explanatory. It corresponds to Rule 33 for federal criminal procedures. The judgment NOV (Rule 29) goes one step further: it is the post-trial version of a judgment for acquittal and demands to overturn the jury's guilt verdict into a "not guilty" and acquit the defendant instantly without appointing a new trial.

The judgment NOV is based on the claim of evidentiary insufficiency. Margo Schulter concisely explains that the concept of "evidentiary insufficiency" as claimed by Dzhokhar's attorneys applies to the guilt phase, and it means that the government's evidence does not suffice to provide a reasonable juror with a basis for finding him guilty beyond a reasonable doubt. An example is when the defense succeeds in proving that the government's evidence is tainted, as it has happened here. The result was an acquittal.

The motion is a legal routine operation, but it's worthwhile to have a look at the details. In DE 1506, the defense writes: The government failed to prove each and every element of each and every charged offense beyond a reasonable doubt, and failed to prove each and every fact required to warrant the death penalty beyond a reasonable doubt. In other words, the defense attacks every single count Dzhokhar is accused of.

In particular, the defense requests an acquittal in the so-called 924(c) points of conviction. This issue was also discussed at the hearing with regard to the penalty phase. The counts in question are 3, 5, 8, 10, 13, 15-18, 20, 22, 24, 26, 28, and 30. However, to stress it again, the defense has requested an acquittal in each and every point. Count #4 for instance (Use of a weapon of mass destruction (Pressure Cooker #2), and aiding and abetting) led straight to the death penalty, but the defense has not backed up the request for an acquittal here with any rationale. So the rationale has either yet to come or it is hidden in the many sealed motions. If the defense succeeds in reaching an acquittal in each and every point, Dzhokhar Tsarnaev not only avoids the death penalty, but has to be released from the prison as a free and innocent man.

After the Trial is Before the Trial

by Woody Box

Judge O'Toole has just revealed a skirmish between the legal parties supposed to stay hidden. The defense requested in a sealed motion to restore the status quo of the Special Administrative Measures (SAM) which had just been cancelled unilaterally by the prosecution - to the disadvantage of Tsarnaev, of course. The prosecution terminated an agreement from 2014, which was a compromise between the need for confidential communication within the defense team and the prosecutions's security concerns. The defense motion is the official legal protest against this termination. The judge decided to unseal it.

Milton Valencia (Boston Globe) omits to mention the email of the prosecution that incited the defense motion. He instead paints the latter as a proactive motion to prolonge the status quo, thus twisting cause and effect. This is incorrect and undue because the agreement bears no expiring date. The article is further proof that the Globe has ceased to exist as a neutral observer of the Tsarnaev case. The Globe is not impartial and guilty of ignoring the glaring inconsistencies in the Marathon bombings narrative. Like the entire Boston establishment that he is part of, the Globe is deeply sticking in the mire of an actually unsolved case. A new trial and reevaluation of the evidence would certainly come as a huge inconvenience to this circle.

This is certainly the most interesting development in the case since the sentencing and generates many question marks. Why did the prosecution terminate the agreement? Why did the defense seal the subsequent motion? And why did the judge unseal the motion this time?

The first question seems easy to answer: the prosecution wants to hamper the current attorney-client relationship, as it always has done, and it wants access to defense material and visitor logs from the past which were not obtainable to them due to the agreement. To put it another way: the prosecution wants to know who visited Dzhokhar how often and what material was shown to him at these visits.

Allegedly, the prosecution is only concerned about Sister Prejean's visits, but this is as credible as the Big Bad Wolf when he asks the seven kids politely to open the door for him, pretending to be their mother. The prosecution of course wants to gain as much information as it can get, not only about Sister Prejean, but all other visitors (experts? unknown witnesses?) as well.

The prosecution quite obviously prepares for the possibility of a new trial, and the defense's vigorous reaction points into the same direction.  So why - question 2 - did the defense try to keep the issue hidden? Was it a precautionary measure because the motion contained email content between the parties? Or did the defense anticipate the media's reaction of mocking their insistence to uphold the agreement?

O'Toole's decision to unseal the motion - question 3 - is most interesting because he could have ruled on it with a sealed order, and nobody would have learned about it. It is remarkable that he hasn't already rejected it, given the history of his pro-government rulings. Now the order will be public and certainly provoke a media echo, no matter how the decision is.

For those who think that the defense team has bowed to the pressure and is not acting in Dzhokhar's  best interests this development should be a reason to re-think. Obviously the defense team is in regular contact with his sisters, manages their visits, and has the full trust of his closest relatives. The recent attempts to drive a wedge between the defense team and the Tsarnaev family, unfortunately staged by another branch of the family, have been fruitless.

Tilting the Scales of Justice Toward Death

Use of SAMs to suppress Jahar's letter of apology calls for reversal!

 

by  Margo Schulter 

 

In an article in the New Yorker entitled The Worst of the Worst Patrick Radden Keefe reports that before Dzhokhar "Jahar" Tsarnaev's trial for his alleged role in the Boston Marathon bombings began, he wrote a letter of apology expressing his remorse for the events of April 15-19, 2013, that resulted in the deaths of four people from the bombings themselves, plus the killing of Officer Sean Collier of the Massachusetts Institute of Technology (MIT) police force.

However, the government evidently used Special Administrative Measures (SAMs) to prevent this evidence from being presented to the jury during the penalty phase of the trial, when jurors weighed the choice between the two alternatives before them after convicting Jahar on all counts: either the death penalty, or life imprisonment without possibility of parole.

The suppression of Jahar's letter of apology was unethical, immoral, and also unconstitutional, demanding a swift reversal of the death sentence. The willingness of the government to have a jury impose the irrevocable penalty of death without hearing all of the relevant evidence points to a habit of the national security state: using the excuses of "national security" and "top secret" classifications to reach results contrary to basic respect for human life.



1. The rape of the Lockett: A remorseless quest for death

One basic requirement of the Eighth Amendment prohibition in the U.S.A. against "cruel and unusual punishments" is that no death sentence may be imposed without giving the defendant the opportunity to present any evidence relevant to either the circumstances of the crime or the character and record of the offender. This was the holding in Lockett v. Ohio, 438 U.S. 586, 604-605 (1978), one of the defining cases in constitutional law during the "modern death penalty era" that began after the Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972), overturned all existing state and federal death penalty statutes.

The case of Sandra Lockett involved an 18-year-old woman who drove the getaway car while her partners in crime robbed a store -- and, in an unplanned event, became involved in a struggle with the owner which led to his fatal shooting. Under the "felony-murder rule" inherited from the English common law, and still followed in many States despite much questioning of this doctrine from the 1790's on when applied to unintentional killings and to accomplices like Lockett who were not involved in the actual homicide, she was legally guilty of murder just as surely as if she had fired the fatal shot herself.

In 1978, the issue before the Supreme Court wasn't Ohio's right to find Sandra Lockett guilty of murder under the felony-murder rule, a time-honored doctrine (even if one questioned by such a prestigious group as the American Law Institute in its Model Penal Code). Rather, the case focused only on the question of whether her death sentence for being the getaway car driver in a robbery where she didn't plan or intend that anyone would be killed was "cruel and unusual."

The Court held that it was indeed cruel and unusual, for a reason that would be relevant not only to such felony-murder accomplice cases, but to every capital case tried by States retaining or reinstating the death penalty -- and, ultimately, every federal case tried under a capital drug offenses statute to be enacted in 1988, and the Federal Death Penalty Act of 1994 under which Jahar was tried this year.

The Ohio statute provided for the death penalty for robbery-murders like the one in which Lockett was involved, but allowed very limited scope for any mitigating circumstances that might call for a sentence of less than death. As an 18-year-old offender with some signs of intellectual disability, and one whose role as getaway driver was relatively minor (although, under the felony-murder rule, it made her a murderer in the eyes of the law), she seemed an obvious candidate for mercy.

In the cases of Woodson v. North Carolina, 428 U.S. 280, 304-305 (1976), and also Roberts v. Louisiana, 428 U.S. 325 (1976), the Court had held that mandatory death penalty statutes without room for individualized consideration of mitigation are unconstitutional. It held in Woodson that because a sentence of death differed more from a sentence of life imprisonment than a sentence of 100 years differs from one of only a year or two, a jury or trial judge must consider "the diverse frailties of humankind" in deciding the ultimate question of life or death.

In Lockett, the Ohio statute allowed limited consideration of a few mitigating factors -- but not enough. One of three authorized factors was that "it was unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation." Another was that "the offense was primarily the product of the offender's psychosis or mental deficiency."

Unfortunately, while Lockett might well have come under the influence of her friends in deciding to take part in the robbery, and her intellectual disabilities may have played a part, the evidence was deemed not to satisfy the strict language of the statute. A death sentence was the result.

Confronted with what Justice Thurgood Marshall called in his concurring opinion a "blunderbuss, virtually mandatory approach to imposition of the death penalty for certain crimes," the Court reached a vitally important ruling. In an opinion written by Chief Justice Warren E. Burger, it held that a jury or trial judge in the penalty phase of a capital case must not "be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."  Lockett, 438 U.S. at 604.

Clearly, when Jahar's remorse or lack thereof was a major issue in the penalty phase of his trial, a pretrial letter expressing remorse was relevant evidence which the Boston jury could not constitutionally "be precluded from considering." Exclusion of this critically important evidence under the SAMs is an obvious ground for swift reversal of the death sentence -- if not by Judge George O'Toole, who permitted this harmful error, then by the United States Court of Appeals for the First Circuit when it reviews the case.



2. Green v. Georgia: Suppressing mitigation is "cruel and unusual"

 

The case of Green v. Georgia (1979) involved a Lockett violation that the State of Georgia attempted to justify by invoking state law. The Supreme Court held that such rules of evidence were trumped by a jury's right and need to know under the Eighth Amendment in the penalty phase of a capital case, as applied to the States by the Due Process Clause of the Fourteenth Amendment.

In the case of Roosevelt Green, he and his codefendant Carzell Moore were charged and separately convicted of the rape and murder of Teresa Allen. A major issue, not affecting the guilt of either defendant but critical to Green's jury during the penalty phase, was his claim that Moore had actually killed Allen after sending Green elsewhere on an errand. Green sought to present the testimony of Thomas Pasby, who would attest that Moore had confessed the killing to him.

The State of Georgia, however, excluded this testimony under its hearsay rule -- a classic rule of evidence generally refusing to admit testimony about hearing a statement made by another for the purpose of proving the truth of what was said in the statement. While there are notable exceptions to the hearsay rule, it is an everyday norm in criminal trials generally, and also in the guilt phase of a capital case.

However, the Supreme Court held that when it came to this evidence at the penalty phase of a capital case, "its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment," denying Green "a fair trial on the issue of punishment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial," followed by a citation to Lockett.

The Court noted that although Georgia's hearsay rule might exclude Thomas Pasby's testimony about Moore's confession to the killing, nevertheless the State had no cause to exclude it from Green's penalty phase, since "the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it" at Moore's separate trial for the rape and murder of Allen.

The attempt of the prosecution in the Tsarnaev case to exclude Jahar's pretrial letter of apology expressing remorse for the bombings clearly violates the letter and spirit of the Lockett and Green decisions, so that the death sentence must be reversed.



3. "The Capital Jury and Absolution": The "enemy combatant" myth

In a telling study based on interviews with actual capital jurors who reached a verdict of either death or life without parole in a capital case, Scott E. Sundby examined the theme of "The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty," 83 Cornell Law Review 1557 (1997-1998).

One of Sundby's conclusions was that a guilt-phase defense that denies the defendant's participation in the crime, when the evidence of such participation seems overwhelming, tends to communicate to the jury the impression of an offender who won't take responsibility for their acts. This impression can have a strong effect in the penalty phase, where any attempt to apologize or express remorse for the crime may seem insincere, in view of the jury's perception that the defendant wasn't willing to take any responsibility in the guilt phase.

This situation holding in practice is quite different from the theory of a bifurcated (two-stage) capital trial, where the idea is to have a guilt phase focused entirely on whether the defendant committed the charged offenses; and then, if necessary, a penalty phase to consider all relevant evidence in aggravation (making the crime more serious or blameworthy) or mitigation (involving any aspect of the crime or the offender favoring a sentence of less than death).

In theory, the defendant should be able to present any defense, and have the jury focus during the guilt phase only on the question of guilt -- as opposed to what penalty might be appropriate if the defendant is actually convicted. And the defense would be free to raise any basis for reasonable doubt, without this influencing what happens in the penalty phase if a capital conviction is the verdict.

In practice, however, jurors are already thinking of penalty issues during the guilt phase; and it is thus a winning strategy, unless there is a case for outright acquittal that the defense feels is strong, to present a mitigation-oriented case that does not deny responsibility for the crime, but if possible introduces some of the same themes that will be at the center of the penalty phase case for life.

As Sundby found, and as Jahar's defense team recognized, one good strategy in cases involving more than one participant in the crime (here, as alleged by the government, Jahar and his older brother Tamerlan) is to focus the guilt phase on comparative culpability: the question of who was the "leader," or committed or directed certain acts of violence (e.g. the building of the bombs, the shooting of Officer Collier, or the carjacking of Dun Meng). Presenting Jahar during the guilt phase as his brother's follower, and as the less active or threatening partner in episodes such as that involving Dun Meng, was thus much in keeping with Sundby's insights.

The severe limitations placed by Judge O'Toole on this strategy of comparative responsibility contrasting the roles of the two brothers, with the judge excluding much of the desired evidence from the guilt phase, was thus a decision loading the scales of justice in favor of death. The jurors would put together their stories of the crimes, based on testimony in the guilt phase, without the benefit of learning about Tamerlan's dominant role in the drama.

However, it was the exclusion of Jahar's pretrial letter of apology expressing remorse that may have been the fatal blow for the defense. As Sundby also explains, jurors do not necessarily always take such statements of apology, whether declared by the defendant in live penalty-phase testimony or communicated in a written statement, at full face value. Yet even while maintaining some skepticism about just how thoroughly sorry the defendant they have convicted of murder really is, they find that such statements serve a lifesaving purpose.

That purpose is to show is that the defendant, although maybe not totally repentant, is indeed ready to be held accountable for their misdeeds and to be a peaceful prisoner. It is a counter to the threat of "future dangerousness" that prosecutors sometimes argue directly, but often leave as an implicit consideration where the jury can draw its own conclusions.

In the case of Jahar, were this a more usual murder case, the factors of no previous criminal record or history of violence, and of youth, would themselves constitute powerful mitigation. To overcome these factors, the prosecutor drew on the myth of the "enemy combatant": a dangerous and defiant "terrorist" who might present a threat of "radicalizing others" through an errant note or other writing somehow getting into the wrong hands (perhaps those of the overcurious mass media?), or might at some future point get unwarranted privileges in prison that could somehow bring about a threat to "national security."

The idea of a "defiant terrorist," and of "lack of remorse," were at the center of the penalty phase case for death for someone who committed his crimes at age 19. A letter of apology might have shattered this illusion of demonization: so the SAMs were invoked to exclude it.

Jahar was thus denied justice on the issue of life or death in both phases of the trial: first by excluding evidence of the relative roles of the two brothers at the time that the jurors were forming their narratives or mental "roadmaps" of the crimes that would guide them through the penalty phase; and again by unscrupulously excluding the letter of apology from the penalty phase.

Excluding the letter, at least, was a clear violation of Lockett and Green, showing disregard for the rule of law. The First Circuit should reverse the death sentences on this ground alone, quite apart from other meritorous issues including the error of denying a change of venue in the face of a level of pretrial publicity and impact of the crimes upon the community rarely exceeded in any criminal case.



4. Why didn't Jahar testify? The problem of allocution

Reading Jahar's pretrial letter to the jury would have been one solution to a very serious problem in federal capital trials: the dilemma of what is known as allocution.

Traditionally, "allocution" has meant the right of a criminal defendant, before sentencing, to address the trial judge (who generally imposes the sentence, and whom the law entrusts with any discretion in setting the penalty), and give either any reason why sentence should not be passed, or any reason for showing mercy and mitigating the sentence if the judge is permitted to do so.

Federal Rules of Criminal Procedure, Rule 32, guarantees the right of a criminal defendant to allocution. Normally this right is meaningful: the defendant might express remorse, express a desire to make restitution or seek rehabilitation, or ask the judge to temper justice with mercy. And the judge, in setting the sentence, is in a position to act on what is said at allocution, if it seems warranted.

Technically speaking, Jahar received his right of allocution when he addressed Judge O'Toole at sentencing, and made his much-reported statement apologizing for the bombings, recognizing that the suffering of the victims could never be justified, and seeking reconciliation with God and his victims.

There was only one problem: Judge O'Toole had no discretion to exercise, or mercy to exercise. Under federal law in a capital case, he was strictly bound by the jury's sentence of death, and had no legal choice but to impose that sentence.

In some federal jurisdictions, notably the Federal District of Hawai'i, common sense prevails -- at least to the extent it can while the federal death penalty remains in effect as a cruel, unusual, and inhumane punishment. In Hawai'i, Rule 32 has been interpreted to mean that a capital defendant has the right to allocute (i.e. make a statement expressing remorse or seeking mercy) to the penalty jury, which actually makes the life or death decision, and can act on what is said during allocution. Possibly the fact that the State of Hawai`i is an abolitionist jurisdiction, although subject like Massachusetts to the corrosive moral acid rain of the death penalty, is one factor in this sane federal judicial policy within its borders.

However, no Federal Circuit Court of Appeals, as far as I am aware, has adopted this commonsense rule. Rather, as with Jahar, the right of allocution in a federal capital case is taken as simply the right to make a statement before the judge imposes sentence -- after the jury has already determined what that sentence must be by its penalty verdict for life or death. If I am correct, the First Circuit has not yet decided this question; but a number of other circuits have approved the formalistic and mostly meaningless interpretation that prevailed in Jahar's trial. This does not mean that a federal trial judge is prohibited from allowing allocution to the penalty phase jury, an area where discretion is very broad; but it does mean that there is no right to address the jury, only an option for a judge to grant this possibly livesaving opportunity if so inclined.

Why is a right of allocution to the jury needed in a capital case, when the defendant is always free to testify during the penalty phase and present any mitigating factor? The answer is simple: the threat of cross-examination. Like any witness, a criminal defendant is subject to cross-examination by the prosecution; and in the penalty phase of a capital case, such a cross-examination can be devastating, or quite literally murderous.

For many capital defendants, the threat involves cross-examination as to previous criminal convictions, or as to uncharged allegations of violent acts never brought to trial. The State of California, for example, allows great scope for "other crimes evidence" during the penalty phase, so that prosecutors can ask the jury, which is seeking to weigh aggravation and mitigation, to consider evidence of past crimes which were never charged, very possibly because there wasn't sufficient evidence for conviction. A jury which has always convicted a defendant of murder, however, may be much more ready to find that the defendant committed additional acts swaying the scales toward death. And allegations of violence, as well as actual convictions, can be a fertile ground for cross-examination.

With Jahar, however, with no previous criminal record or history of violence, the prosecution would have had at hand an equally deadly tactic: using cross-examination to focus the jury, once again, on the goriest details of the bombings, and on Jahar's state of mind when allegedly going through various steps of the bombings. The defense wisely decided not to put Jahar on the stand, given this lethal prospect.

As a last resort, having been denied the justice either of allocution to the jury or of having Jahar's pretrial letter read, the defense had Sister Helen Prejean testify as to Jahar's heartfelt expression of remorse. However, the jury may have wondered: "Why don't we hear this in some way from this young man himself?"

As told by veteran capital defense attorney Frederick Leatherman, also known in his web-based commentaries as Masoninblue, reading a letter of apology to a capital jury can indeed be the decisive factor for a verdict of life.

By using the SAMs to stifle this critical presentation of mitigating evidence, the prosecution defied both the Constitution and an elementary sense of justice demanding that a jury deciding life or death should have access to all relevant mitigating evidence.



5. Suppressing voices for life: Another terrorist bombing of civilians

The use of SAMs to keep Jahar's letter of apology from the jurors evaluating his remorse recalls another act of the national security state whose 70th anniversary we mark this year, in connection with another terrorist bombing campaign aimed at civilians.

In July of 1945, Leo Szilard and other nuclear scientists petitioned President Harry S. Truman not to use the atomic bomb against Japanese cities, at least not before disclosing the nature of the new weapon and demonstrating its power. As Szilard himself later concluded, in fact by that point there was no need for even the threat of the new weapon: Japan knew that the war was lost, and would have surrendered until the terms eventually offered after the bombings of Hiroshima and Nagasaki. Those terms included the right of the people of Japan to choose their own mode of governance, and more particularly to maintain the tradition of the Emperor, sacred to many.

The response of civilian and military leaders surrounding the President was to be sure that the troublesome petitions from some of the world's leading physicists and biologists, among other scientists, never reached him -- until the bombs had already been dropped. In a 1945 version of the SAMs, the petitions were also classified, so that they remained unknown to the public for years.

Like the jurors, at least one of whom recently said that they might have reached a different penalty verdict if they had known of the desire of the Richard family for a life sentence, President Truman may have reached his decision on Hiroshima and Nagasaki without fully realizing the implications of his acts.

According to at least one account, President Truman may have sincerely believed that Hiroshima and Nagasaki were in fact "military targets" rather than civilian population centers deliberately chosen in order to demonstrate the power of the atomic bomb to destroy what would be known later, during the Cold War, as "urban-industrial assets." Possibly reading and considering the scientists' petitions, or even inviting Szilard or other spokespeople to consult with him on the nature of the new weapon, might have alerted Truman more clearly to the atrocities he was about to commit.

Of course, the leaders of the national security state in 1945 did not want such an informed decision: they were anxious to use the new weapon, maybe in good part as an example to the Soviet Union not to challenge the hegemony of the U.S.A. in coming years and decades.

Speaking of bombings and apologies, there has not yet been an official apology from the U.S.A. to the people of Hiroshima and Nagasaki. President Truman did not publicly express remorse, however much he may have privately regretted his decision. Whatever his (mis)understanding at the time he authorized the bombings, that decision had resulted by 1950 in 200,000 deaths from the two nuclear attacks. Some victims were killed by heat and blast, like those on Boylston Street but over vastly greater areas; while other died either in the days and weeks after the bombings as a result of acute radiation syndrome, or in the years and decades following as a result of delayed illnesses from exposure to the bomb's gamma rays and neutrons.

Could demonizing Jahar and condemning him to death, with the jury denied knowledge of his letter of apology that might have helped save his life, be a repetition of the same "national security" policy that deprived a President of the full knowledge and appreciation of the acts of nuclear terrorism against civilians he was about to authorize?

Testimony of Bill Richard - transcript

submitted by pbszebra

A small part of witness testimonies has been made available for the public in the form of transcripts. The statement of Bill Richard (docket Nr. 1422) is one of them. It is posted here because of its unique and outstanding significance for the case. 

  

Appeals, Restitution & the Unequal Application of the Death Penalty

by Jane24

Expected Appeals in the Case of Dzhokhar Tsarnaev

The deadline for post trial motions in this case has been set for 17th. August. Doc. 1490, (Defendant's Preliminary Motion for a New Trial), was filed on 6th. July. This motion requests a new trial citing insufficient evidence  and indicates that Tsarnaev's defense intend to appeal not only the sentence in this case, but also the verdict. The implications of this filing have been comprehensively covered on this site by Woody Box here and also by Margo Schulter here.

Other issues upon which we may expect appeals in this case to be based are, undoubtedly, the presiding judge, Judge George O'Toole's refusal to grant a change of venue for trial, despite the filing of four motions by the defense requesting this. Two of these motions were considered by the First Circuit Appeals Court, but were subsequently denied, despite the vigorous dissent of Judge Torruela. 

These filings (the most recent of which can be found here) outline the extreme prejudice existing, (and understandably so), within the Boston community and mention that this prejudice was further inflamed by media coverage which was extensive, relentless and biased. Alleged "leaks" via members of law enforcement connected to the case was a major factor in the coverage provided by at least one local journalist. My own thoughts on the defense's initial filing in regard to leaks can be found here and here.

It is possible that the exclusion and denial of evidence and testimony related to both Dzhokhar's older brother, Tamerlan Tsarnaev, and Tamerlan's former acquaintance, Ibragim Todashev, may be brought up during the appeals process. Both these men were originally said to be implicated in the Waltham murders in 2011, although it was later denied that the FBI were ever in possession of any evidence linking Tamerlan to these murders, and both died at the hands of law enforcement. Tamerlan, Dzhokhar's alleged co-conspirator, is rumored to have had contact with the FBI long before the 2013 bombing of the Boston marathon. Ibragim Todashev was shot to death by the FBI after allegedly writing a confession as to his role in the Waltham murders, (one that was said to implicate Tamerlan also), but which he never got to sign. The FBI were, (as always and citing "self defense"), cleared of any wrong-doing in the death of Todashev. It is obvious that these circumstances were highly relevant in the trial of Dzhokhar Tsarnaev and certainly not unreasonable to question the denial of access by the defense to information and the exclusion of evidence at trial.

Restitution

 

In addition to being the deadline for post-trial filings, 17th. August also marks the deadline for the prosecution to submit a Bill of Restitution in the Tsarnaev case. The form that restitution should take was briefly discussed at Tsarnaev's sentencing hearing on 24th. June. Whilst the sale of the assets of an individual convicted and sentenced to LWOP, or, as in this case, death, is common practice, in the case of Dzhokhar Tsarnaev it has been mentioned that funds contained in his commissary account might be seized. Brief research leads me to believe that such an action might be considered unusual and the morality behind such an action is certainly open to question. This fund was established post incarceration and is believed to be comprised, in the main, of donations from members of the public who wish to enable Tsarnaev to purchase items from the prison commissary. That such inconsequential funds should be open to seizure by the government in order to be distributed to the victims of the bombing, by way of some form of restitution, when such was obviously not the intention of the sources of these funds, seems immoral. (And I would question the real value as regards restitution from the perspective of the victims?) Righteous  or, I might suggest, petty, punitive and grasping? 

 

The Unequal Application of the Death Penalty

There are many examples of the way in which the death penalty in the US is applied unequally. It has been statistically proven that those who are poor, black or Hispanic are more likely to be sentenced to death than those who are white, financially secure and who make claim to being adherents of the Christian religion. In recent years there has been much which might lead one to suggest that individuals who practice Islam have been consigned to the same category as the poor, black or Hispanic defendant in criminal cases. For the purpose of brevity I will simply compare the sentence passed upon  Dzhokhar Tsarnaev for his convictions related to the bombing of the Boston marathon and the deaths of four people including a child, with that passed upon James Holmes in regard to his conviction in the shooting deaths of a dozen people including a child. James Holmes is obviously suffering from mental illness and there is much to suggest that this has been the case for many years. The jury were persuaded by the prosecution's arguments that Holmes was in fact sane at the time he committed the crime so the defendant's mental illness cannot be taken into consideration in regards to the jury's verdict. Why then was Holmes sentenced to LWOP for causing the deaths of twelve,when Tsarnaev was sentenced to death for his conviction in the deaths of four? Would it be unreasonable to suggest that this might be due to the fact that Holmes is white and was born in the US and that Tsarnaev was a naturalized citizen, (so not a "real American" in the eyes of most in the US), and also a Muslim? I think not.

Note: I am opposed to the death penalty in ALL circumstances.

Insufficient Evidence: The facts, the law, and the death penalty

by Margo Schulter

In what Dzhokhar Tsarnaev's attorneys called a "placeholder" motion, they argued that a new trial was required, and that "judgments notwithstanding the verdict are required as a matter of evidentiary insufficiency." The motion was signed by attorneys Judy Clarke, Miriam Conrad, and David Bruck.


1. In the interests of justice: The change of venue issue

The claim that a new trial is required "in the interests of justice" would include, of course, the argument that Judge O'Toole erred in not granting a change of venue as requested by the defense because of a presumption of guilt in the Boston area arising from extensive pretrial publicity and also community experiences such as the April 19 lockdown which directly touched the lives of many residents. Earlier cases such as the famous Sheppard v. Maxwell (1966), in which Dr. Sam Sheppard's conviction of second degree murder for the fatal bludgeoning of Marilyn Sheppard, his pregnant wive, was reversed because of prejudicial pretrial publicity, give a compelling basis for a change of venue in the Tsarnaev case.

While the First Circuit declined to intervene on an extraordinary basis and order a change of venue before the trial started, that action would have required a finding that Judge O'Toole had abused his discretion in refusing to move the trial. The generally favored procedure, if in doubt, is to let the trial take place, and then review on appeal the merits of the change of venue issue.

Thus the First Circuit's 2-1 decision not to intervene in advance of the trial doesn't mean that it might not find on appeal that a change of venue was in fact required, and accordingly reverse Dzhokhar's convictions and order a new trial in a different venue. One possibility is Washington, D.C., another jurisdiction (like Massachusetts since 1984) without the death penalty -- but also without the immediate experience of the bombings and the law enforcement reaction, as well as the saturated local publicity of the following 20 months leading up to the Boston trial.


2. Evidentiary insufficiency: A bit of background

The claim that Dzhokhar's convictions must be reversed -- not just the death sentences imposed on some of these counts -- is based on "evidentiary insufficiency," a concept which calls for a bit of an explanation. I know attorneys, some of them active on Firedoglake or FDL (a site where questioning Dzhokhar's guilt has evidently been banned), who would argue that this claim of evidentiary insufficiency is merely pro forma, as the Latin expression goes, that is, "for the sake of form," with no real question being raised as to his actual guilt. However, it's worthwhile to understand what is being legally asserted.

In the U.S.A., a criminal case is what is called an "adversarial proceeding," or "accusatory process," in which the government makes an accusation and the defendant retains or is provided with attorneys who seek to refute this accusation or charge. The tradition of civil law, as practiced in much of Europe, is different, and sometimes described as an "inquisitorial process."

There is a kind of mythology that the accusatory process favored in the U.S.A. is inherently more respectful of the citizen's liberty, or more humane, than the inquisitorial process favored in Continental Europe. Today, this is often the opposite of the truth.

The term "inquisitorial" may suggest the horrors of the Inquisition, and indeed both the death penalty and the legalized use of torture (whether to extract confessions or used as a punishment, for example in various forms of prolonged and deliberately torturous executions) were typical aspects of "justice" for centuries. England, although it rejected the use of torture as a sanctioned aspect of criminal procedure, practiced torture under executive authorization -- the equivalent under Queen Elizabeth I or King James I in the later 16th and earlier 17th centuries of a modern drone strike, or "enhanced interrogation techniques," under the Bush or Obama Administration.

While the horrors of the Inquisition against various kinds of "heretics" -- including Jews in Spain who had converted to Catholicism and were suspected of returning to certain Jewish practices -- are well-publicized, English legal safeguards did not protect Catholics during the 17th century against the widespread view, put in modern terms, that all Catholics were terrorists. The execution in 1680 of William Howard, known by his title as Lord Stafford, during the hysteria surrounding the fictional "Popish Plot," showed how the innocent could be judicially murdered. After his conviction in Parliament, with a substantial minority of peers voting for acquittal, it was remarked that the certainty of the evidence was so firm that the only people who could still champion his innocence were those who wished the alleged plot to murder the reigning King Charles II had succeeded.

Then, as now, preconceptions could skew human judgment and produce injustice in the name of justice. For many people in England -- or more especially, many Protestants -- the attempted bombing of Parliament on 5 November 1605, known as the Gunpowder Plot, showed that all Catholics were traitors and plotters; or, in other words, terrorists! Any accusation came with an element of credibility that was hard to shake. Given that England then and for centuries after had a death penalty -- only abolished in 1965 for murder, and for all crimes for which it could have been used in theory by 1998 -- such prejudices could and did lead to the deaths of innocents.

Likewise, the 9/11 attacks have created a mood that all followers of Islam are at least potential "terrorists." While the UK adopted the notorious Operation Kratos that led to the extrajudicial killing on 22 July 2005, just ten years ago today, of the innocent Brazilian electrician Jean Paul de Menezes, its abolition of the death penalty at least precluded the legal execution of innocents in response to the London bombings of 7 July 2005 and the attempted bombings that followed on 21 July. The Greek word "Kratos" in Operation Kratos means "power," as in democracy (the power of the people); but here, the power to kill suspected terrorists.

The institutions of Anglo-American justice, such as trial by jury and the adversarial system, may sometimes give a measure of protection to the innocent -- or also, in the U.S.A., to defendants convicted of death penalty offenses (whether innocent or guilty) whose attorneys may be able to persuade a jury to return a sentence of less than death, typically life without parole (LWOP). In the UK, this would be called a "whole life tariff," a sentence precluding the release of the prisoner at any time.

However, in recent times, the Continental system has proved much more humane in practice because jurists and lawmaking authorities are aware both of human fallibility, and of the need for the compassionate and humane treatment of prisoners. Prisons seek to follow the ideal of "normalization," where life is as much as possible like that lived on the outside. Loss of liberty is recognized as a serious punishment in itself, which should not be aggravated by needless violations of human dignity while the prisoner is being confined.

And there is strong belief that a true social safety net, where all people have a right to minimum decent living conditions, will make violent crime less prevalent. This sense of social democracy must now stand up to the challenges of multinational capitalism and austerity politics, or else yield to the conditions of extreme income disparities and record levels of incarceration that prevail in the U.S.A.

While the European approach is obviously based on a commitment to the idea that people convicted of crime are still human and should be treated as such, it additionally fits a world where some innocent people will inevitably be mistakenly convicted of crimes, no matter how careful we are to minimize this risk. We might say that some innocent lives will be lived for a time in prison, these lives should be made as liveable as possible. Since we cannot always know which prisoners are innocent, treating all prisoners as humanely as possible is the one way to honor this principle.


3. Evidentiary insufficiency: Innocence, the facts, and the law

In the system prevailing in the U.S.A., the trial of a criminal charge involves deciding questions both of law and of fact. The questions of fact involve determining what happened: for example, did Dzhokhar Tsarnaev carry a backpack with a pressure cooker bomb, as opposed to some kind of smoke bomb which itself could not have caused the deaths and injuries that resulted at the Marathon? And, if he was carrying a pressure cooker bomb, did he know that -- or think that he was merely a participant in some kind of a drill?

Other questions relate not to the determination of guilt in the first part of the trial, but to the equally vital question of life or death if we assume that he was guilty as charged. Here, the prosecution's claims often range from the dubious to the outrageous and absurd. For example, was Dzhokhar spending his four minutes at the second bomb site (outside the Forum Restaurant) focusing on the deliberate targeting of children -- or was he mostly distressed, confused, focused on avoiding detection or even somehow on getting help in exiting the situation without the bomb going off in a populated area? Some people who have seen and studied the video (as I have not) lean much to the second interpretation. The prosecution, out to kill Dzhokhar and to motivate the jury to vote death, naturally favored the first, with fear of "Islamic terrorism" and 20 months of local publicity as its potent allies.

Truly outrageous prosecutorial claims were that terrorism is a "mature crime" (tell that to all the child and adolescent soldiers who play an active role in war crimes and crimes against humanity at the bidding of their elders!); and that Florence ADX as a supermax prison housing many bombers far more mature and "defiant" than the peaceful prisoner Dzhokhar would be unable to restrict his freedom of expression, even with Special Administrative Measures or SAMs!

For all these claims in both phases of the trial, the "trier of fact" is the jury. That is, assuming that venue issues did not preclude a fair trial, and that the jury was properly selected, it is the jury which must resolve all issues regarding how persuasive a given piece of physical evidence is, how how credible a given expert witness is, or how reliable are the recollections of an eyewitness such the carjacked Dun Meng or "Danny" whose testimony strongly supports the leadership role of Dzhokhar Tsarnaev's elder brother Tamerlan.

As long as "reasonable persons" can reach different conclusions as to the credibility of weight of the evidence, they are operating within their realm as "judges of the facts," and their decision is usually regarded as final in the U.S.A. Thus is it is difficult to overturn a verdict of guilt in a criminal case, and exonerations of the innocent often take decades. As long as there is enough valid evidence presented by the government to permit a reasonable jury to find guilt, then appellate courts, at least in theory, will affirm the conviction as long as there are no legal errors in the trial requiring reversal.

In practice, if the verdict seems to appellate judges against the weight of the evidence (although a reasonable jury could still find guilt), they may often find some legal error or other as a ground for reversal and a new trial. This is generally not too difficult, as few trials are perfect: errors occur, which may be regarded either as "harmful" (requiring that a conviction be reversed in the interests of justice) or "harmless." In the guilt phase of a trial, if the evidence clearly and overwhelmingly supports conviction, then many legal errors may be disregarded as "harmless."

The penalty phase of a capital trial is a more complicated matter, and one which we shouldn't be dealing with at all, of course, since the death penalty is a human rights violation rejected by the civilized world at large. However, in the U.S.A., the most important reality as to what we are discussing here is that the "harmless error" doctrine gets applied to the penalty phase of a capital trial, where the most reasonable conclusion is that there is no such thing! Let us see why.

In the guilt phase of a case, there are clear facts which would establish a crime beyond a reasonable doubt -- assuming that the government's evidence accurately reflects reality, of course! If so, then actual guilt would be established, even if some technical error occurred.

In a death penalty case, however, the Supreme Court of the United States (SCOTUS) has held since 1976 that a mandatory death penalty is unconstitutional under the Eighth Amendment to the Constitution, which prohibits "cruel and unusual punishments." Thus mitigating evidence must be considered in every capital case, and the "weighing" of this evidence is not a mechanical test but a function of "reasoned moral judgment," as Justice Sandra Day O'Connor once expressed it. In such a situation, any error might lead a juror to vote for death rather than life -- since a juror might choose life in any case!

Mostly the concept of "evidentiary insufficiency" as claimed by Dzhokhar's attorneys applies to the guilt phase, and it means that the government's evidence does not suffice to provide a reasonable juror with a basis for finding him guilty beyond a reasonable doubt. The question of whether the evidence is sufficient by this test is a "question of law," and thus within the power of either a trial judge such as Judge O'Toole, or an appellate court such as the federal First Circuit, to decide.

In Jackson v. Virginia (1979), SCOTUS summed up the evidentiary insufficiency test as follows: "[T]he relevant question is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Thus to claim evidentiary insufficiency is to say that, based on the government presented at Dzhokhar's trial, no reasonable juror could have found him guilty beyond a reasonable doubt.

When a court finds evidentiary insufficiency, this decision is an acquittal, acting like a jury's verdict of not guilty to exonerate the prisoner. The Double Jeopardy Clause of the Fifth Amendment prohibits retrial in this situation: since the government failed to present sufficient evidence to convict on its first attempt, it should not be permitted a second opportunity to turn its overwhelming power against a citizen who has been found innocent.

In contrast, some jurisdictions permit a judge to grant a new trial if a jury's guilty verdict seems "against the weight of the evidence," although a reasonable juror could have convicted. Such as judge is sometimes said to act as a "13th juror," curiously also a term that was applied to one journalist covering the Boston Marathon bombing trial. Here the judge's decision is not considered to be an acquittal, and the new trial is permitted to take place.


4. The question of reasonable doubt

A serious issue in the U.S.A. is a tendency to dilute the traditional concept that the government is required in a criminal trial to prove guilt "beyond a reasonable doubt." As originally formulated in the later 18th century, this is a very exacting test.

The idea was that in determining past human events, as a jury is asked to do, it is impossible to be as certain of the truth as in some areas of logic or mathematics, for example, where proof or demonstration ruling out all doubt is possible. The best that we can achieve is a "moral certainty" -- the defendant's guilt is as certain as other historical facts which we do not question, although we are relying on evidence that may date back centuries. For example: "The City of Berlin was founded in 1237."

Guilt beyond a reasonable doubt is not just a matter of high probability. Rather, as the defense argued in addressing the question of guilt phase instructions for the jury, if the evidence is seen by a jury as "reasonably permitting" a conclusion of innocence, however unlikely that possibility may seem by comparison to that of guilt, then a verdict of acquittal is required.

Further, a perception that there is room for a reasonable conclusion of innocence may result not only from evidence, but from lack of evidence; and the reasons for such a perception may not always be easy to articulate.

The 18th-19th century concept of "moral certainty," or in more modern terms "practical certainty," nicely expresses the idea that if there is any room for a reasonable hypothesis of innocence, then the defendant must be given the benefit of the doubt. A moral certainty, or practical certainty, is another way of saying that the evidence is as certain as it can be for a matter involving past human events rather than a mathematical demonstration.

In 1994, SCOTUS in the case of Victor v. Nebraska held that a jury's proper understanding of the reasonable doubt concept was essential to a valid verdict of guilty, and criticized the "moral certainty" concept as unfamiliar to most modern jurors, who might actually misunderstand it to mean a lower rather than higher standard of proof.

The term "practical certainty" might be a good modernization. A judge could explain: "In order to find the defendant guilty, you must be as certain of their guilt as of other practical or historical facts which you take as unquestioned truths. Even if you find it much more likely than not that the defendant is guilty, but see room for a reasonable possibility of innocence, you must return a verdict of not guilty. Only if the evidence convinces you of the defendant's guilt beyond a reasonable doubt, and to a practical certainty, will you return a verdict of guilty."

The idea that the evidence must exclude every reasonable hypothesis of innocence is a similar test, and tends to protect the integrity of the traditional "reasonable doubt" standard. However, one proposed federal instruction asks only that the jury be "firmly convinced" that the defendant is guilty. Certainly the traditional reasonable doubt test means that the jury has been "firmly convinced," but additionally means that they have ruled out any reasonable hypothesis of innocence.

A problem is that "firmly convinced," taken in isolation, might suggest (at least to me) the test used for some legal issues in the U.S.A. that a question has been proven by "clear and convincing evidence." This means that the evidence shows a given fact or conclusion -- for example, the dangerousness of a person for whom a civil commitment to a mental institution is sought -- is much more likely than the opposite; but not that any reasonable hypothesis to the contrary is precluded.


5. Conclusion: A thank you to those who make this site possible

As a laywoman rather than an attorney who has been involved in research and writing about legal and constitutional issues relating to the death penalty and its history, I have followed the case of Dzhokhar Tsarnaev with a focus especially on the penalty phase and the sometimes outrageous prosecutorial tactics used in support of the government's effort to kill.

However, I strongly believe that in a capital case especially, it is always legitimate to raise and discuss possible hypotheses of innocence. If such hypotheses are wrong, then they can be refuted by a calm and reasoned discussion of the evidence. If the facts are too uncertain to permit a definitive judgment, then this in itself is compelling evidence that the death penalty must be excluded, quite apart from its unnecessary and inhumane nature in any case! And if the hypotheses of innocence lead one to serious reasonable doubts when human life is at stake in even one case out of a thousand, then they are amply justified!

By banning such discussions, rather than welcoming them and seeking to keep them as constructive and respectful as possible, FDL has evidently made "respectability" more important than a thorough search for truth, which is willing to probe even "unlikely" possibilities. At times, hypotheses of innocence which seem innocent may be refuted by new evidence such as DNA tests that prove guilt; at other times, the opposite may happen. But to close off discussions must involve a nonzero risk of impeding the exoneration of an actually innocent prisoner.

This is why I express my internationalist solidarity with the people who make this site possible, and other likeminded sites such as The Boston Marathon Bombings (TBMB). The experiences of nations such as Germany with the Third Reich and the heroic resistance of groups such as the White Rose; of Chile and Argentina with the terrorist September 11 attack of 1973 and the Dirty War, and the courageous resistance of Madres de Plaza de Mayo; and of historical Bohemia in resisting many forms of religious and ideological oppression over the centuries -- all these have involved the activism with which I am honored to be allied.

One legal term used in the U.S.A. has haunted me since 1980 or so: the concept of the penalty phase of a capital case, after a defendant has been to be "death-eligible," as the "selection stage." As one coming from an Ashkenazi Jewish family, I can hardly be ignorant of the German selektion as the term used at camps such as Auschwitz for the decision as to which prisoners should be immediately gassed, and which permitted to live longer for forced labor, medical experiments, or even service in brothels. By abolishing the death penalty in 1949 and 1987 respectively, both the Federal Republic of Germany and the German Democratic Republic repudiated the idea that there are lives not worthy of living and respecting.

The generosity of this site is shown in the eagerness of the webmaster and others to help me solve technical problems arising from my use of a text-based browser, and to assist me in posting articles or comments with the considerable extra effort on their part which this involves. Your graciousness, dedication, and courage is to be commended as we seek in the 21st century to follow the example of such worthy activists for peace and social justice as Petra Kelly and Barbara Deming.