Donnerstag, 23. Juli 2015

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.


  1. Thank you Margo for your professional explanations and insights! We are anxiously awaiting the motions in August and the appeals process! Also looking forward to an end to the death penalty! I have hope!

  2. Bravo Margo! I do love your posts and comments.

    Thank you for your thorough explanation and detailed understanding of what is really going on with the Tsarnaev case.

    Thank you also for your continued support of BBN. It is extremely important to allow all voices to be heard, whether you agree with them or not.

  3. My thanks to Margo Schulter for writing this article, (and, as pbsz above, for your continued support of BBN at its' new home), and also to WB for making Margo's article available to us.

    I am grateful to see that the change of venue issue gets first mention as I believe it should be obvious to all, and particularly in view of the negative pretrial publicity in this case, that there was never any hope of a fair trial in this case in a city already traumatized by the tragedy that was the bombing of the 2013 Boston marathon. My horror at the speed in which the jury reached a verdict in both phases of the trial of Dzhokhar Tsarnaev remains, as this speed, at least for me, indicates that the jury gave little thought to the evidence presented during the trial, or the gravity of their responsibility during the penalty phase. We have heard recently that the "Boston Globe" has filed a motion requesting the public identification of the jurors and it is discomforting to see that many commenting on the thread attached to an article concerning this in the "Globe" are not in favor of this. If a member of the public is prepared to take on such a weighty responsibilty by engaging in this form of public service, should they not also be prepared to stand by their decisions and actions?

    The background on insufficient evidence provided here by Margo is much appreciated, and I do believe that the expression or term, "insufficient evidence", for the most part sums up this trial. As has been said so many times before, irrefutable evidence was presented by way of proving that bombs were detonated a the marathon, but little beyond that could be termed convincing, let alone irrefutable. (Or beyond reasonable doubt.) I must confess that when I attended this trial, I almost expected to be presented with evidence which would prove that my questions concerning this case were unfounded. That this was not so is more than a little disturbing.

    I am also appreciative of the mention of the inhumanity which is a part of the penal system in the US, in conjunction with reference to the death penalty as I believe these two issues are not so very far removed from one another. It has always been my opinion that there is no greater punishment than the loss of one's liberty. Why then the need for additional punitive measures? Would not more concerted efforts as regards rehabilitation make more sense? Likewise, to kill in order to punish one who chose to kill is without reason. The intent in both cases is abhorrent.

    As other commenters here, I look forward to the upcoming appeals process in this case, and have hope that some of the injustice may be righted, and that we might see at least some degree of the transparency which should exist in all cases.

  4. FYI:
    I cannot read the German- how to I change to English?


  5. Thank you very much for this essay, Margo, especially for what you write in Section 5.

    As a German, I'm of course affected by drawing parallels to the Third Reich, and honored by the comparisons with Petra Kelly and the White Rose. But I think there's a lot to do for me until I deserve this compliment and probably will never do. I can't speak for the rest of the BBN crew, but due to the technical development, I feel quite safe because I can act from abroad.

    But what gives me a shiver by reading the last section is how the grimace of fascism seems to light up in the way the US government handles this and similar cases. The executive branch is out of control, the congress is in big part a bunch of corrupt lobbyists, and the judicial branch maybe the last hope... as long as it isn't misused as a toole...

    1. In agreement, WB, that the only hope for the US in regard to many issues lies in the judicial branch. This case and the death penalty are but two of these issues. There have been signs of hope where the death penalty is concerned. This case? I am not so sure but guess time will tell...

      Slightly ot, (so begging your indulgence here), but could this be another reason, in addition to corporate influence, for the demise of investigative journalism in the US?

  6. --- Here's a comment from LauraW, who is unable to get through: ---

    I agree with the comments about us heading in the direction of Nazi Germany. I've noticed that the poll numbers for those who doubt the U.S. government's story about 9/11 are much higher in Germany than elsewhere. As if you Germans have a finely tuned sense of government dishonesty because of your history.

    About DT being confused at the Forum. I thought he seemed confused after the first blast (as I commented in my book). As if he only expected to see a smoke bomb go off at Marathon Sports.

  7. Very informative article! I can only thank you. Yes, indeed, the German heritage enables us to detect clearly where manipulation and propaganda is at work.

  8. Makes sense. A large proportion of the population in the US are seemingly oblivious to reality.