Samstag, 18. Juli 2015

An appeal triggered by insufficient evidence

by Woody Box

When Dzhokhar Tsarnaev surprisingly confessed at his sentencing that he "did it", with the emphasis "if there are any lingering doubts", he seemed to hammer the last nail into his own coffin. Many of his so-called supporters (those who think it's possible/probable/certain that he's innocent) perceived especially the "lingering doubts" remark as a slap in the face for their efforts to point out these doubts. Perplexity spreaded, and the defense team was quickly suspected of trying to silence the supporters.

Two weeks later, the lingering doubts rear their head again. In a preliminary motion for a new trial, the defense contests every single conviction:
A new trial is required in the interests of justice and judgments notwithstanding the verdict are required as a matter of evidentiary insufficiency.
The last two words are a sardonic euphemism for "insufficient evidence", and the explosive potential of this "jaw-breaker" did not escape alert observers like James Henry. For those who nourished hope that they would never hear from Tsarnaev again this is of course a huge disappointment.

For a close observer of the trial, the new development is not that surprising. The defense team, including the defendant himself, exhibited a fairly relaxed demeanor, which was grotesquely contrasted by their lack of engagement especially in the guilt phase. The trial seemed to be only a matter of duty to them. They came forward very rarely with evidence acquired by their own.

At one occasion however the public gained a glimpse into the defense tactics. When defense witness and Chechnya expert Prof. Michael Reynolds was cross-examined, prosecutor William Weinreb asked him if he still believed - as he had written in a book - that the Tsarnaevs chose to carry out terrorism. Reynolds denied and told him that his opinion had changed after seeing the "defense's evidence". It was obviously not Reynold's intention to reveal his knowledge of this undisclosed material. He only admitted to it after being squeezed by Weinreb. A clear sign for the defense's "sandbagging" strategy.

There is only a little step from "they didn't want to carry out terroristic acts" to "they didn't carry out terroristic acts". The mainstream media preferred to omit Reynolds' awkward admission in their reports. But surpressing unconvenient facts doesn't make them go away. It is only a matter of time until the evidence cited by Reynolds will find its way into the courtroom - and the public.

Meanwhile, Middlesex District Attorney Marian T. Ryan announced to prosecute Tsarnaev on a state level for the death of officer Sean Collier, a move that is met with general incomprehension. The Boston Globe's Adrian Walker finds it "myopic":
But Tsarnaev will not be the next example of that. His defense lawyer said repeatedly, in open court, that he committed the crimes he was charged with. At his sentencing, Tsarnaev offered something of an apology for his actions — further evidence that the facts of his case are not, in any way, in dispute. He is guilty, and is never going to be exonerated.
Walker has obviously missed the defense's provisional appeal. Is DA Ryan's announcement a reaction to that? In a new article James Henry imagines a different motive:
One more factor must be considered. A new trial before another judge has the potential to focus attention on the many loose ends in the case against the Tsarnaevs that have remained unresolved despite “official investigations” and their subsequent “findings.” 
He then points out the strange role of the FBI in the investigation in Cambridge. Harvey Silverglate's thoughts go into the same direction. On his twitter page, he rejects Walker's rant:
Another Tsarnaev trial might unveil info the feds hid from us, so no, Middlesex Co. DA isn't "myopic".
Apparently the doubts are back, and they are lingering more than ever.


  1. Great article!

    For me, "insufficient evidence" defined Dzhokhar Tsarnaev's trial. As I have said many times before, there was much to prove that bombs were detonated at the 2013 Boston marathon, but next to nothing by way of evidence to indicate that the defendant in this case was responsible for the bombing.

    Do believe much more lies behind Middlesex County DA Marion Ryan's recently voiced intent to try Tsarnaev at state level for the murder of Officer Collier. Could it be that she knows how weak the government's case really was, or is there another, (and perhaps far more interesting), intent?

    Much to think about...

  2. Comment from Margo Schulter: (Who is having difficulty posting.)

    The claim of "insufficient evidence" is very striking to me, because that
    says that no reasonable juror could find Jahar guilty beyond a reasonable
    doubt. If FDL is banning arguments about the weight of the evidence, the
    idea that reasonable persons might question guilt (although that in itself
    would certainly not be grounds for an acquittal by reason of insufficient
    evidence), then they should ban the defense motion also!

    And insufficient evidence says that a reasonable juror could not return a
    guilty verdict even when giving the government the benefit of believing
    all their witnesses and drawing every reasonable inference from the
    evidence that would support a conclusion of guilt beyond a reasonable
    doubt. See, for example, _Jackson v. Virginia_ (1979).

    So the defense attorneys and their writings should be banned from FDL,
    since they now qualify as "arch-conspiracy-theorists"!

    1. Thank you, Margo. Very interesting to hear this from someone with profound legal expertise. So the wording of the defense, "evidentiary insuffiency" or "insufficient evidence", has a concrete legal meaning.

      August 17th will be interesting date, maybe then we get some meat to the bones.

    2. Some background on Jackson v Virginia for anyone who is interested. (I know Margo doesn't need this!)

  3. Great article, Woody! "Insufficient evidence" is an understatement of the prosecutorial hi jinks that made a farce out of the U.S. Justice system in DT's trial. Like many, I look forward to seeing a strong appeal case put forth. Hopefully, the appeals team will have time and access to all pertinent data, which was denied the defense team.

  4. Thank you Woody for keeping BBN active. Your efforts are appreciated. I, too, am looking forward to the appeals process. I believe it has been in the works for over two years.

    Thank you Jane24 for posting the link and providing some German assistance! :)

  5. Reposting a link WB posted on TBMB because I think it relevant:

    1. I'll try that link again: