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.
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.
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.
