Montag, 10. August 2015

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.




Kommentare:

  1. Thank you Jane. So August 17 might be a milestone in the case history.

    Interesting that we've heard of an "Insufficience evidence" post-trial motion, but not of a "change of venue" post-trial motion, isn't it?

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    1. Agreed WB! A bold move on the part of the defense?

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  2. Excellent, excellent post, Jane. It is clear that the application of law is arbitrary at best. Like many, I am anxious to see what transpires on August 17th.

    The restitution issue is bizarre. The kid has nothing, not even his life, at this point. Taking the commissary account is inhumane and cruel. Should he not be able to purchase items for his personal needs from the paltry commissary list for the rest of his life? The heaping on of additional punishment never ends, it seems.

    Petty, punitive and grasping sums it up. Also, I might add, an apt description of Ortie and her cabal.

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    1. Thank you Leftcoast.

      I am still shaking my head over the "restitution issue", and critical as I am of the "justice" system and also the conditions in prisons in the US, the concept of the government seizing commissary funds, (intended for the purchase of "luxury" goods, such as toothpaste), seems representative of a new low.

      If there is a "positive" to be found in Dzhokhar Tsarnaev's incarceration at ADX, I would suggest that this is to be found in the renewed and moral criticism of this facility which his transfer has prompted.

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  3. Thanks Jane for this valuable updated info. I agree with everything you say.

    Also note Todashev's confession was not accurate to details, he was just winging it because they forced him to write something.

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    1. Thank you lauraw and thanks also for the reminder of just one of the anomalies in regard to Todashev's alleged confession and one of the events surrounding his death at the hands of the FBI. If I remember correctly, the FBI agent's story was not altogether in line with the ME's report either?

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  4. Thanks Jane for this valuable updated info. I agree with everything you say.

    Also note Todashev's confession was not accurate to details, he was just winging it because they forced him to write something.

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  5. Thanks Jane for this valuable updated info. I agree with everything you say.

    Also note Todashev's confession was not accurate to details, he was just winging it because they forced him to write something.

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  6. Jane, thank you for your post and for keeping this case in the forefront of our minds.
    I, too, am extremely concerned about his commissary account. My hope is that it will NOT be subject to restitution. The account is a gift, not property owned prior to the arrest.

    Has anyone here seen or have comments on the book list on justice4jahar tumblr? I haven't sent any yet and there appears to be quite a small amount allowed per month. I'm interested in thoughts and/or ideas.

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    1. You're welcome cv1975. It would be interesting to know how often the government consider seizing the content of commissary accounts of the convicted in the name of restitution. Laurel Sweet tweeted today that "Feds ask Judge George O'Toole to give them until Sept. 28 to hit Dzhokhar Tsarnaev with proposed restitution tab."

      I did notice conversation about the book list on TBMB a couple of days ago but know no more than what I read on that site. (Hopefully someone else may be more helpful?) Personally tend to think that this is not a direct request from DT due to the SAMs.

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  7. Government just asks for more time to calculate the victim's losses and ask for a deadline until September 28

    "According to prosecutors, the process has been unexpectedly complex and they need more time to calculate the bombing victims' losses. "

    Another strange move. What's going on there?


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    1. And the government have been granted their requested extension:

      Judge George A. OToole, Jr: ELECTRONIC ORDER entered.The governments Assented to Motion for a Six-Week Enlargement of Time to Submit Information in Support of Claims for Restitution 1503 is GRANTED. The governments submission is due on or before September 28, 2015. The defendants submission is due on or before October 26, 2015.

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  8. Re: Restitution:

    A link posted by Steve Dwight on TBMB indicates that the seizure of commissary funds for the purpose of restitution is not unusual:

    http://etikallc.com/criminal-restitution-or-prison-commissary/

    The suggestion contained in this article that friends or family of a convicted individual could in some way find themselves on the hook for restitution payments concerns me. In the US everything has a price and it seems the system has little concern from whom that price is exacted.

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