UPDATE: Miriam Conrad's cross-examination of FBI photographer Michelle Gamble

- by Woody Box


This is the continuation of an article from April 2015 where I featured the curious questioning of FBI photographer Michelle Gamble by defense lawyer Miriam Conrad. The article was solely based on twitter accounts out of the courtroom, and therefore it had to cope with sketchy citations and unavoidable uncertainties.

Now that the transcript of the respective trial day (March 30, 2015) has been published at last - you can read Gamble's complete examination here -, it is possible to check my presumptions at that time in the light of the full testimony. It turns out that they are confirmed for the most part and there is no reason to withdraw them.

In the article, I observed:

- Conrad makes Gamble admit that an overhead diagram of the Forum with circles indicating the position of people on the sidewalk does not show all people who were there, i.e. that the diagram omits some people. Gamble also admits that the prosecution told her to do so.

- Conrad asks Gamble for the distance of Dzokhar to the bomb when it went off, which Gamble is unable to answer.

- Conrad points out that on the Forum video some people "moved around a bit" after the first blast, which is confirmed by Gamble.

I stated that Conrad's questions look cryptic, incoherent and not expedient for the common observer, and that she behaves as if she is aware of other footage not compatible to the government's material. This impression is confirmed by the actual testimony - and it is all the more true for the re-cross examination which has not been covered by any tweets at the trial. Here's the relevant part, right at the end:

In an apparently spontaneous decision (she could have done it in the first cross-examination), Conrad pulls out a photo of the second bomb site from 2:37 pm, 12 minutes prior to the blast. The photo shows a man and a woman in the vicinity of the Richard family. Conrad asks Gamble if these two persons are still there in another photo at 2:48, one minute before the blast (she probably refers to exhibit 1575). Gamble's "nonverbal response" indicates that they are not there anymore. At this point Conrad stops her questioning abruptly, and Gamble is excused. 

So two people were standing beside the Richard family at 2:37, and they were gone at 2:48. This doesn't look very exciting: they must have walked away in the meantime. Where did Conrad want to get at with such an apparent meaningless question? Why did it deem her so important that she introduced a new piece - exhibit 3138 - into evidence?

The jury and the public certainly had no use for it. So it is obvious that Conrad's addressee were the witness and/or the prosecution. As I wrote in my previous article: This cross-examination looks rather like a little veiled message of strength to the government than a closing address for the second bomb site complex. This assessment is all the more true for the re-cross examination.

To put it more specific, what's at stake here is the photographic evidence of the second blast. As I said already, Conrad behaves as if she is aware of other footage not compatible to the government's material. Or she happens to have spoken with the man and the woman in the 2:37 photo and they remember differently than the photos suggest. 

The defense filed a motion for acquittal on the same day, based on insufficient evidence. In this case insufficient evidence seems to equal tainted evidence. I have questioned the genuineness of the Forum video multiple times (see here, here or here). These doubts have now to be expanded to some of the photos collected by the prosecution and presented at the trial.

Mark Wahlberg's "Patriot's Day" doomed for disaster?

- by Woody Box

The long announced film on the Boston Bombings is about to go into production in these days. Mark Wahlberg, Kevin Bacon and John Goodman are the more prominent actors, and Bostonite Wahlberg is also co-producer of the movie. If everything runs properly, it will hit the cinemas in Boston, New York and Los Angeles on December 21 and the rest of the country three weeks later.

The producers have certainly spoken with the Boston Police, Boston FBI and other authorities. It is unknown if they have bothered to let one of their staffers research alternate media sources with regard to the bombings. Their confidence and determination over years to pull off the project indicates that they didn't. This might turn out disastrous when the official story is shattered in the appellate process.

Right now, the Tsarnaev case is in the hands of the Boston Federal Court of Appeals. There is a decent probability that the defense has confronted the court with new evidence showing that the Tsarnaev brothers had nothing to do with the pressure cooker bombs and the subsequent crimes. There is also a decent probability that this evidence is so overwhelming that the court is impelled to overturn the verdict.

Needless to say, such a development would be a disaster for the film which sticks with the official version. What kind of disaster depends on at what time things come to light (through an acquittal of Dzhokhar Tsarnaev, for instance).

If things come to light before December 17, it is unlikely the film will be shown ever. The sooner this happens, the better for the producers because they can save work and money.

If things come to light months or years after the film was shown in the cinemas, the producers might have been lucky in economical terms, yet the film will get the dubious fame of picturizing a giant lie.

The most interesting case is if Dzhokhar is acquitted just when the movie has started in the cinemas and is heading for Oscars. This would create a true parallel universe with devastating consequences for the credibility of the government and the establishment media. For the producers however, this scenario might be economically most interesting because people might flood the cinemas to watch the biggest lie ever told.

Tsarnaev protected by Double Jeopardy Clause

- by Woody Box

Double Jeopardy is the customary term in US law for the ancient and universal principle that a person may not be held accountable twice for the same crime. Someone who has been convicted or acquitted from a certain offense may not be legally pursued for this particular offense again, thus providing him with a kind of immunity.

This article argues that the clause might in fact be a main reason for the surprisingly passive and heavily criticized defense strategy at the Tsarnaev trial. As is known, the defense lawyers admitted his guilt from the beginning, hardly contested the prosecution's weak evidence in the guilt phase and presented little evidence of their own. Part of this strategy was surely, as Jane24 has put it, to give the government enough rope to hang itself - i.e. let them present their (possibly tainted) evidence first before reacting with counter-evidence.

But there's more to it. As matters stand, Dzhokhar's bag didn't contain the shrapnel-filled pressure cooker that hurt the people at the second bomb site. It was most probably filled with low explosive powder from the fireworks which the brothers had purchased. This kind of smoke bomb is rather harmless, but still could be used by the prosecution to go after Dzhokhar. Several points of the 30 charges are applicable to both a pressure cooker bomb and a smoke bomb, for instance:

- Bombing of a place of public use (count #9)
- Use or possession of a firearm (count #10)
- Malicious destruction of property by means of an explosive (count #14)

Dzhokhar is now in jeopardy and thereby "immune" against all 30 charges. If the defense manages to show in the appellate process that his bag did not contain a pressure cooker but only the fireworks powder, the prosecution is prohibited from pursuing him for planting a smoke bomb - which it would certainly be eager to do - due to Double Jeopardy. Given the draconic sentences for his friends, there's little doubt they would charge him for ten years or more, implying some involvement in the real bombing.

Certain conditions have to be fulfilled for a defendant in order to be protected by the Double Jeopardy rule. The defendant must have been attached to jeopardy - in a jury trial this is when the jury is sworn - and the jeopardy must have been terminated which occurs (1) after an acquittal, (2) after an dismissal of a charge, (3) after a mistrial not caused by the defendant, or (4) on appeal after conviction (Source). Obviously this applies to Dzhokhar, and it might explain the defense's passivity in the guilt phase. If they would have challenged the prosecution's version before the conviction, he would not yet have been protected by Double Jeopardy and the prosecution could have issued an altered indictment with regard to the smoke bomb.

If the appellate court overturns a jury's guilty verdict due to procedural trial error, the defendant may still be re-prosecuted in a new trial. However, if the verdict is overturned for insufficient evidence, Double Jeopardy applies and the defendant is acquitted stante pede. (Source) The reasoning is that the prosecution has the duty to make a watertight case in the original trial. If they fail to do this, the flaw cannot be offloaded on to the defendant later.

By filing a motion for judgment notwithstanding the verdict, the Tsarnaev defense has argued with insufficient evidence. So if they manage to convince the appellate court to overturn the verdict and acquit him, Double Jepoardy prohibits the prosecution from pursuing a new trial and barrs it from presenting any new evidence, if only to indict Dzhokhar for planting a smoke bomb.

Burks vs. United States is a good reference. The defendant filed a motion for acquittal before the jury's verdict (as in Dzhokhar's case); the jury found him guilty as charged, and thereafter his motion for a new trial on the ground that the evidence was insufficient to support the verdict was denied (as in Dzhokhar's case). The Court of Appeals reversed the conviction and asked the District Court to proceed either with a directed acquittal or a new trial. In the end, the Supreme Court remanded Burks to the District Court for a judgment of acquittal because the prosecution "could not have another opportunity to convict after it had been given a full and fair opportunity to do so".

There is a caveat, however. If one single deed or crime amounts to several offenses, the US jurisdiction has developed the so-called Blockburger test to determine if the defendant is protected by Double Jeopardy. 

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. 

So if the Tsarnaev prosecutors have to conceed that he didn't plant the pressure cooker bomb, they could still pursue him for planting a smoke bomb if they present a proof for the latter offense that was not required for the former. This seems difficult, however, because the required evidence for both - video footage, eyewitness statements - is exactly the same.

In this context it is worth to note that one of the rare witnesses called by the defense, fingerprint expert Elaine Graff, was extensively questioned about the nature of the bomb and whether Dzhokhar's fingerprints were found on its components (they were not). Jane24 has noted a striking engagement of the defendant:

During Timothy Watkin's questioning of this witness I twice observed Dzhokhar Tsarnaev writing and passing notes to a member of his legal team. These notes were taken to Watkins who paused to read them. Throughout the day the defendant seemed more focused on proceedings than he has appeared to be previously.

The defense did not contest the Forum video or one of the more questionable witness statements, yet they were keen to exonerate Dzhokhar from the bomb building action. This might indicate that they are not worried to be able to disprove the video evidence, but anticipate that Dzhokhar's involvement in the making of the smoke bombs poses a potential problem in the future.

Another caveat is that Double Jeopardy does not barr a state from indicting someone who was already acquitted at a Federal court (and vice versa) under the "Dual sovereignty doctrine". District Attorney Martha Ryan amazed the public when she announced that she would pursue Dzhokhar on the state level for the murder of Sean Collier after a potential acquittal in the appellate process. This step caused confusion in the media, some even questioning Ryan's mental health. The explanation making most sense here is that Ryan received a hint that Dzhokhar might be acquitted without any chance to re-prosecute him on a federal level, together with the assurance that even if his bag was not the pressure cooker bomb, he must have been "involved" in the bombing. Her rushing ahead looks like a message to the defense that she doesn't want to let him off the hook.

There's no indication however that he knew of the existence of the pressure cooker bomb, and the fact that he was pretty close to it when it exploded - as emphasized multiple times by the defense - seems to prove the contrary. All in all, the decision of the Appellate Court has the potential for a huge surprise.

 

The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. - See more at: http://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html#sthash.DEIkYahE.dpuf

The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. - See more at: http://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html#sthash.DEIkYahE.dpuf All in all, the decision of the Appellate Court has the potential for a huge surprise.

Intent to Kill

The Government's Motion to Bar Sister Helen Prejean's Testimony

by Margo Schulter 
 
 
One of the recently released documents from the trial of Dzhokhar Tsarnaev that reveals the Government's strategy for killing him is the prosecution's motion to bar Sister Helen Prejean from testifying on his behalf in the penalty phase of the trial.

As it happened, she was nevertheless permitted to testify, and shared with the jury her own experiences of talking with Dzhokhar and seeing evidence of genuine empathy for the suffering of those killed or wounded in the Boston Marathon bombings on 15 April 2013, and of remorse for his role in these acts.

However, the Government's strategy, as revealed in its motion, succeeded on a larger issue: preventing Dzhokhar from using what is termed the "right of allocution," or of addressing the authority that is determining ones sentence after a criminal conviction, in order to express repentance and remorse or to ask for mercy.

Here Dzhokhar's sentence of death or life without parole (LWOP) at his trial may have depended on his ability to address the actual body deciding the sentence: the 12 members of the jury, who at the end of the penalty phase would make the decision between death and LWOP. A quirk in the Federal Rules of Criminal Procedure, Rule 32, may have made all the difference at trial, and be an important issue on appeal.

Under Rule 32, the defendant has the right to "allocute" or address the sentencer in a federal criminal case before sentence is passed. In all noncapital federal criminal cases, that sentencer is the trial judge, who thus has an opportunity to hear any expression of remorse or plea for mercy by the defendant before imposing sentence. While it is an open question how often such an allocution actually influences the judge's sentence, which generally is imposed according to sentencing guidelines based on the jury's findings and the limited discretion of the judge, there is at least a possibility that what the prisoner says might make a difference.

The right of allocution in federal and some state criminal trials in the USA goes back to English practice, where the prisoner was given an opportunity to raise any reason why sentence should not be passed. In the old English practice, and also generally in state as well as federal noncapital criminal trials in the USA, it is the trial judge who imposes sentence, whether after a jury's guilty verdict, the judge's own verdict of conviction when a bench trial takes place after a jury is waived, or a plea of guilty is entered.

However, the federal death penalty creates a strange situation under the interpretation of Rule 32 that prevailed in Judge O'Toole's courtroom: first the jury's verdict of life or death, which the judge cannot change; and only then the allocution -- at sentencing, when it can make no difference to that sentence!

This is like Alice in Wonderland, and certainly so in Dzhokhar's case: first the death sentence from the jury, and then Dzhokhar's moving allocution before Judge O'Toole, who had no discretion to do anything but sentence him to death! This makes the protection of Rule 32 meaningless, unless one subscribes to the logic which Alice confronted: "First the sentence, then the trial (or allocution)."

Of course Dzhokhar did have the option to express his remorse by testifying under oath during the the penalty phase -- if he wished in effect to commit legal suicide! The prosecution, with its ruthless pursuit of the death penalty as coldblooded in its own way as the bombings themselves, would have staged a murderous cross-examination, focusing for example on the most graphic and sickening details of the crime and of the suffering of the victims. The prosecutors were well willing to engage in such a pornography of violence in order to gain their ritual human sacrifice in the name of "anti-terrorism", making a mockery of their expressed sentiments of consideration for the victims.

The Federal District of Hawai`i, a jurisdiction where the state death penalty has been abolished since 1957 (before it became a State in 1959), follows a saner interpretation of Rule 32. Since the jury decides the sentence in federal capital cases, the defendant has the right of addressing the penalty phase jury to express remorse or ask for an LWOP sentence without the threat of a devastating cross-examination which the prosecution otherwise is likely to be able to put on in the kind of murder or terrorism case apt to involve a possible death sentence.

http://law.justia.com/cases/federal/district-courts/FSupp2/104/1232/2503861/

So far, the federal Circuit Courts that have considered the issue of Rule 32 have not found for a right of allocution to the jury in federal death penalty cases; but the District of Hawai`i has both logic and humanity on its side in holding that if the jury determines life or death, then it is the jury that should  be able to hear allocution and make an informed decision. While the reasoning of the Hawai`i District Court is not binding precedent elsewhere, it is persuasive and should be considered throughout the federal system -- until, of course, the barbaric punishment of death is abolished!

The threat of murderous cross-examination is the simple and obvious explanation for why Dzhokhar made his moving statement of repentance, based in good part on his own faith in Islam, only at the sentencing when it could make no difference.

For those of us fighting for Dzhokhar's life, and against a culture of violence that sanctions everything from the death penalty to Islamophobia to "wars of choice" killing hundreds of thousands of innocent civilians whose lives are just as valuable as those of the victims in Boston, understanding and discussing the right-to-allocution issue that may be raised on appeal can be one important aspect of our campaign.

Defense wanted to show photos from Sgt. Murphy

by Woody Box


In my last BBN article I hit on the idea that the mysterious photos presented by defense lawyers immediately before they rested - but were not exhibited in the courtroom - would bear explosive proof for Dzhokhar's innocence. However, the now published transcript of the day in question (Document 1575, March 31, 2015) falsifies this speculation. 

The transcript includes the then hidden sidebar talks between judge, prosecution, and defense. It turns out that the photos were already broadly known and show Dzhokhar climbing out of the boat immediately before his arrest. The photographer was Sgt. Sean Murphy of the Massachusetts State Police, and he published them without authorization in July 2013, allegedly to counter the Rolling Stone cover featuring Dzhokhar like a "rock star". Murphy was praised by most media outlets for this act, but nevertheless disciplined and placed on restricted duty. The following dialogue from the sidebar shows that his photos were the ones that the defense wanted to show to the jury.

......

The defense intended to introduce the photos without an accompanying witness (Sgt. Murphy in this case). The prosecution objected and insisted to either call Murphy to the witness stand to show the photos or to deny their presentation. After a short deliberation the defense forwent to call Murphy, and the photos were not shown.

This insight is fairly disappointing, but it raises a couple of interesting questions instead:

- Murphy's photos show a weak, hurt and unarmed Dzhokhar. They are perfect for generating sympathy, but of no relevance for the guilt question. Yet the defense decided to show them in the guilt phase, not in the penalty phase. Why?

- After the sidebar, the defense waived the offer to summon Murphy in order to be able to show the photos. They could have done that in the guilt phase - or, more appropriately as being said, in the penalty phase. Were the photos not so important at all?

- Despite an obvious defeat with regard to their concern, the defense team including the defendant displayed an upbeat behavior, smiling, chatting, while the prosecution looked "uptight" (according to twitter messages). Why this paradox behavior? Who lost the battle for the photos actually?

So we are forced to enter speculative terrain again. Is it possible that the defense's purpose was not to show the photos, but enter them into evidence to meet a certain deadline? In this context it is notable that the defense filed a motion for judgment of acquittal (Rule 29) one day before and renewed it after the photo skirmish. It was the last action before they rested in the guilt phase.

 These questions obviously need a judicial expert to be answered.

Dzhokhar Tsarnaev, arms folded - unusual posture

by Woody Box

Adam Reilly's tweet is from the day when the defense finished its part of the guilt phase with a most unconventional handling of evidence: a handful of photos, to be shown to judge and jury without an accompanying witness. This was a step so uncommon that it needed law books, three side bars, two hours and one lunch break before the question was decided and the defense eventually rested. I have already emphasized the episode in a previous article, and this is a refreshment. Jane24 was attendant and has written a detailed chronology of this remarkable day.

It is still not clear what happened to the photos and who got a look at them; the jury and the courtroom definitely not. I have argued in my article that most likely the judge inspected the photos during the last recess in camera, i.e. non-public. After that he returned and ruled that the photos could not be shown in the courtroom for formal reasons. 

After the defense's initial announcement to present the photos, the judge appointed a sidebar. The above tweet is taken when this first sidebar ended. No other journalist reported Dzhokhar folding his arms. 

Reilly is right on the point: Folding his arms is in fact an unusual posture for a defendant accused of a grave felony. Probably not seen very often at a court. The gesture has a lot of different meanings, depending on the context. It can signal rejection, readiness to defense oneself, but also confidence or a wait-and-see attitude. 

The judge had just been caught off-guard by the defense, and the first sidebar was obviously successful for them as their request was not instantly rejected. Defense attorneys were chatting cheerfully, and Dzhokhar folded his arms. In this context, confidence and wait-and-see seems to be an appropriate demeanor.

This is more than reading tea leaves or l'art pour l'art because it is related to one of the biggest, yet underrated, mysteries of the trial: what do these photos show? 

I'd like to establish three categories of significance in order to make sense of the mystery.

1 - the pictures bear absolutely exonerating evidence, maybe photos of the crime scenes flatly contradicting the prosecution's material or the official narrative right up to falsification

2 - the pictures generate questions with regard to the official narrative, but not to the extent that it is flatly disproven

3 - the pictures are redundant with regard to the guilt question, maybe showing Dzhokhar as a child to raise sympathy

It is not known if Dzhokhar himself has seen the photos when he folded his arms, but certainly he was told what was pictured on them. Another tweet of Adam Reilly suggests that he hadn't seen them at this point - but that he saw them two hours later, for the first time:

This tweet was sent during the last recess, when the judge was outside the courtroom and presumably looking through the photos. The assumption that Dzhokhar was looking at the very same photos at the very same time is straightforward and almost inescapable. His fascination shows that he saw them for the first time.

So probably no childhood photos. These pictures must have a fundamental significance. If they belong to category 1 or category 2 or something in between is hard to say. Dzhokhar's demeanor however strongly suggests category 1. He knew that on this day his attorneys would launch a kind of offensive for the first time. That's why he folded his arms. And the photos show a version of what happened at the crime scenes which is not compatible to the prosecution's version. That's why he was so fascinated.

To repeat a statement of my earlier article: most likely the photos bear proof for his innocence. And they will not go away.

Good bye your honor, Mr. O'Toole

by Woody Box


With the full rejection of the defense's post-trial motions by judge George O'Toole on January 15, 2016, the Tsarnaev case has entered a new phase. The defense will now file an appeal and an appelate court will have to decide about the same issues.

O'Toole is no longer the master of the process, which is certainly good news for the young Chechen. With the denial to lift the SAMs and to appoint a new trial, he stayed true to his line of rubber-stamping the government's demands. This might have guaranteed him the momentary goodwill of the government, but, as matters stand, will not bode well for his place in legal history. Many observers aside from myself have pointed that out, too.

The denied motion for a new trial consists of three parts - change of venue, "Johnson", and unconstitutionality of the death penalty. The latter is only a symbolic request. The first request - to order a new trial at a different location due to a prejudiced jury - is the most obvious one, and there is a good chance that other judges will look at it differently. The defense already challenged the venue Boston one year ago with a mandamus petition. It was denied by a panel of three judges, but only with a 2-1 majority decision. Judge Juan Torruella vehemently expressed his dissent on 45 pages. He finished with these words:

But what makes both America and Boston strong is that we guarantee fundamental constitutional rights to even those who have caused us the greatest harm. Rather than convicting Tsarnaev and possibly sentencing him to death based on trial-by-media and raw emotion, we must put our emotions aside and proceed in a rational manner. This includes guaranteeing that Tsarnaev is given a fair trial and accorded the utmost due process. The actions of the district court and the majority of this court fall short of these ideals.

Tsarnaev is entitled to a writ of mandamus ordering the district court to grant Tsarnaev's motion for a change of venue. Because this court refuses to grant this relief, I strongly dissent.

Lastly, the Johnson part is a request to discard all conviction counts which include the term "crime of violence". The defense's strategy behind this rather technical judicial question is difficult to determine because some of the remaining conviction points (the non Johnson points) still bear the death penalty and have not been explicitly challenged by them. But, as I have pointed out here, the defense nevertheless has demanded an aquittal in each and every count - just that they delivered no reasoning for the non Johnson counts. Why not? Here's an explanatory approach:

With the post-trial motion for a new trial and for a judgment notwithstanding the verdict the defense was able to delay an appeal until the judge's (negative) decision on these motions. Without doing that, they would have had to file the appeal as early as 14 days after the judgment. This has been clarified at the end of Document 1490:

The defense still doesn't challenge the official narrative, neither with new evidence nor anything else. They restrain themselves to the redundant Johnson matter. By that, they force O'Toole to justify again why he's not ready to order a change of venue - before their appeal. As expected, his reasoning in this point is weak and vulnerable. So the short-term objective of the defense seems to be to achieve a new trial at a different venue, not to come out with their own evidence. They are probably still eager to win time before they put their cards on the table - maybe because they are busy with going through the government's messed pile of evidence.