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.