Dzhokhar's Note in The Boat: A not so watertight confession? by M Baker
Black's Law Dictionary, defines a confession as "a statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense.
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Everything the Prosecution claims to have collected as evidence seems to pale in comparison to Dzhokhar Tsarnaev's handwritten confession of guilt found in the boat.
But now Tsarnaev has entered a plea of Not Guilty to all 30 counts against him. So, did he or didn't he?
Tsarnaev is said to have penned his confession note as he lay hidden for hours beneath the cover of Mr. Henneberry's trailered boat. The boat was parked less than 370 yards from where the younger brother had abandoned his getaway car and sprinted to comparative safety until Henneberry noticed a loose strap. Upon Dzhokhar's capture, no mention was made of any writings. The public was kept in the dark about this rather important evidence of guilt until it was presented to the world on television by Former Assistant FBI Director, now CBS Sr. Correspondent John Miller a month later, the morning of May 16, 2013.
According to Miller's exclusive taped segment, Tsarnaev had already admitted much of the written boat confession contents to police in the hospital before he was Mirandized. Here is what Miller said was in the April 19th written note, a copy of which has NOT been released to the public:
"The note said the bombings were retribution for U.S. military action in Afghanistan and Iraq, and called the Boston victims "collateral damage" in the same way Muslims have been in the American-led wars. "When you attack one Muslim, you attack all Muslims," Tsarnaev wrote.
Tsarnaev said he didn't mourn older brother Tamerlan, the other suspect in the bombings, writing that by that point, Tamerlan was a martyr in paradise -- and that he expected to join him there soon."
That last part is especially damning, if it is a true account of what Dzhokhar wrote....
Whether you question the whole scenario or not, it still would be lunatic and hugely disastrous for the sober defense team to parade into the courtroom trumpeting, "It was all a lie, the FBI made-up the boat confession, we can prove it..." The confession is a significant piece of evidence, alleged to be in Tsarnaev's handwriting where he was found hiding, and must be deftly handled by the defense. What follows is a brief analysis of the contents of the note, accompanied by a "find the note" photo journey interspersed throughout the text. (Be sure to look closely at the final photo.)
But now Tsarnaev has entered a plea of Not Guilty to all 30 counts against him. So, did he or didn't he?
Tsarnaev is said to have penned his confession note as he lay hidden for hours beneath the cover of Mr. Henneberry's trailered boat. The boat was parked less than 370 yards from where the younger brother had abandoned his getaway car and sprinted to comparative safety until Henneberry noticed a loose strap. Upon Dzhokhar's capture, no mention was made of any writings. The public was kept in the dark about this rather important evidence of guilt until it was presented to the world on television by Former Assistant FBI Director, now CBS Sr. Correspondent John Miller a month later, the morning of May 16, 2013.
According to Miller's exclusive taped segment, Tsarnaev had already admitted much of the written boat confession contents to police in the hospital before he was Mirandized. Here is what Miller said was in the April 19th written note, a copy of which has NOT been released to the public:
"The note said the bombings were retribution for U.S. military action in Afghanistan and Iraq, and called the Boston victims "collateral damage" in the same way Muslims have been in the American-led wars. "When you attack one Muslim, you attack all Muslims," Tsarnaev wrote.
Tsarnaev said he didn't mourn older brother Tamerlan, the other suspect in the bombings, writing that by that point, Tamerlan was a martyr in paradise -- and that he expected to join him there soon."
That last part is especially damning, if it is a true account of what Dzhokhar wrote....
Whether you question the whole scenario or not, it still would be lunatic and hugely disastrous for the sober defense team to parade into the courtroom trumpeting, "It was all a lie, the FBI made-up the boat confession, we can prove it..." The confession is a significant piece of evidence, alleged to be in Tsarnaev's handwriting where he was found hiding, and must be deftly handled by the defense. What follows is a brief analysis of the contents of the note, accompanied by a "find the note" photo journey interspersed throughout the text. (Be sure to look closely at the final photo.)
1. Why wait a month to release the existence of such a damning piece of evidence to the press?
By withholding the existence of the written confession from the public, this "extrajudicial" confession was not included in the Criminal Complaint allegations filed on April 22nd. According to experts, it had been considered odd the Tsarnaevs, driven by ideological goals to kill American citizens, did not publicly proclaim responsibility for the Boston bombings, but simply went on with their everyday lives. By releasing the boat "confession" it confirmed for the so-far puzzled experts the brothers were responsible for the acts.
It neatly tied up a loose end.
"It took days to learn the identity of the bombers, and there was no official claim of responsibility, which is unusual in these cases." (From Miller's summary on CBS News May 16, 2013)
It neatly tied up a loose end.
"It took days to learn the identity of the bombers, and there was no official claim of responsibility, which is unusual in these cases." (From Miller's summary on CBS News May 16, 2013)
2. Was the "boat confession" a prosecution response to building questions of possible suspect coercion, refuting claims of a "false" confession by Tsarnaev?
The sixteen hours of questioning of the injured suspect by the special team, the interagency High Value Interrogation Group, a suspect whose physical condition was described on the FBI site as "critical" on April 21st, 9:55 a.m., yielded the quite possibly inadmissible bedside confession.
And aside from a media airing of the nature of the "public safety exception" that supposedly negated the need to Mirandize Tsarnaev, other cracks began to appear in the official narrative.
Initially, anonymous "official reports" were Tsarnaev stopped speaking once advised of his Miranda rights. Later reports released April 29th went further, indicating during questioning, Tsarnaev repeatedly asked for counsel and was denied under that "public safety exception." (See Glenn Greenwald's article link below.) While this had been debated, is it possible that 19-year-old Tsarnaev, a college sophomore, with at least two attorneys in his family circle (his father's brother and sister) would be ignorant of his right to representation? Less than a year earlier, he had become a U.S. citizen, which also would have been an opportunity to learn his rights thereto. (We've now learned leaked reports of denial of counsel were accurate.)
But the public release of portions of the supporting written confession on May 16th appeared to neutralize any problems with Tsarnaev's testimony obtained in the hospital. Officials informed us, via Miller, the brothers' actions were retribution for the wars in Iraq and Afghanistan. The motivation driving the brothers to commit murder was confirmed.
And that bedside confession, so desperately obtained, no longer mattered. (It also overshadowed the report on April 24th that Tsarnaev may have been unarmed while being fired at in the boat, a report that could have provoked some sympathy from the public. Said revelation is now accepted as the more accurate account of events that night.)
http://www.theguardian.com/commentisfree/2013/apr/29/tsarnaev-right-to-counsel-denied
http://www.usatoday.com/story/news/nation/2013/04/25/tsarnaev-miranda-rights-boston/2111961/
***The U.S. Constitution, 6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ,,,, and to have the Assistance of Counsel for his defense."
3. Was this 'note' a deathbed confession?
A deathbed confession may be an exception to the hearsay rule, but in this case, Tsarnaev did not expire, he is available for questioning, and there is no clear confirmation the wounds he sustained prior to the boat being riddled with bullets, were life-threatening.
Hearsay = A statement made other than by Tsarnaev himself at the trial or hearing, offered as evidence.
Hearsay = A statement made other than by Tsarnaev himself at the trial or hearing, offered as evidence.
4. Where is the corroborating "signed" written confession obtained after 16 hours of intensive bedside questioning of Dzhokhar?
No mention is made of Tsarnaev signing any guilty statement. Yet, it was commonly reported that officials indicated he could write, and was alert, the latter at least confirmed by Magistrate Judge Marianne B. Bowler on April 22, the Monday following his widely reported capture on Friday, April 19 at 8:45 p.m.
Media reports also stated he "stopped talking once advised of his Miranda rights." If so, did he intend to confess or not? If he was 'spilling his guts'--why not sign a confession, as the Agents tried to obtain from Mr. Todashev before he went crazy, attacked them with a broom or some implement, and had to be shot dead? Unfortunately for the prosecution, Mr. Tsarnaev did not sign any bedside confession.
"Alleged Boston Marathon bomber, Dzhokhar Tsarnaev, is awake and responding to questions in his hospital bed.
The 19-year-old is responding sporadically in writing to questions from investigators regarding other cell members and other unexploded bombs, law enforcement officials said. "
http://www.dailymail.co.uk/news/article-2312486/Dzhokhar-Tsarnaev-Bomb-suspect-wakes-answers-FBI-questions-writing-shooting-mouth.html#ixzz2gz507Tr2
Media reports also stated he "stopped talking once advised of his Miranda rights." If so, did he intend to confess or not? If he was 'spilling his guts'--why not sign a confession, as the Agents tried to obtain from Mr. Todashev before he went crazy, attacked them with a broom or some implement, and had to be shot dead? Unfortunately for the prosecution, Mr. Tsarnaev did not sign any bedside confession.
"Alleged Boston Marathon bomber, Dzhokhar Tsarnaev, is awake and responding to questions in his hospital bed.
The 19-year-old is responding sporadically in writing to questions from investigators regarding other cell members and other unexploded bombs, law enforcement officials said. "
http://www.dailymail.co.uk/news/article-2312486/Dzhokhar-Tsarnaev-Bomb-suspect-wakes-answers-FBI-questions-writing-shooting-mouth.html#ixzz2gz507Tr2
5. How could the alleged suspect write on the walls and beams of the boat?
On a more prosaic level, Miller's televised report was "Tsarnaev had no paper, but he did have a pen," and he wrote his confession on the side of Mr. Henneberry's boat. Mr. Miller also stated the wall was riddled with bullets, advising viewers there were hundreds of holes in the walls and in the note itself. A cursory count of holes in the boat visibly sustaining extensive damage reveals there were about 50 rounds fired into the exposed side.
The actual boat has been variously identified as a 24 or 22 foot cruiser, a Seahawk or a Performer. Visual comparison by an online boat enthusiast confirms it is a Performer. Regardless, the interior surfaces of boats are typically fiberglass, wood, or plastic. Using a pen on these surfaces would require a chiseling motion, so the story was later amended to "marker." Another instance of the changing narrative, once the logical inconsistency of a pen began to be debated online.
The actual boat has been variously identified as a 24 or 22 foot cruiser, a Seahawk or a Performer. Visual comparison by an online boat enthusiast confirms it is a Performer. Regardless, the interior surfaces of boats are typically fiberglass, wood, or plastic. Using a pen on these surfaces would require a chiseling motion, so the story was later amended to "marker." Another instance of the changing narrative, once the logical inconsistency of a pen began to be debated online.
6. Was the actual wording in the Note-in-the-Boat a confession to the bombing?
Do these 5 Indictment "quotes" suggest an absolute admission of guilt, or even any actual facts of the bombing incident, which would be expected if there were unambiguous statements in the Indictment such as the following (and there are not!)
- "I set down the bomb on the sidewalk in front of the Forum."
- "Tamerlan set down his bomb in front of Marathon Sports."
- "We built the bombs and detonated them."
No. Instead, what we appear to have are anti-American, anti-war statements--speech protected under the First Amendment. And is there a specific mention in the Indictment's "confession" language of retribution for the wars in Iraq and Afghanistan? (Negative.)
The Indictment should state the strongest case with the best evidence, which would have been presented to the Grand Jury. Although there were other Tsarnaev statements ("among other things" could refer to a certain expletive) which comprised what has been described as a "brief note," those 5 Indictment quotes could be the best the prosecution has from the heavily promoted 'boat confession.' (We can't know for certain.)
But conversely, can one definitively conclude Dzhokhar was not alluding to his elder brother's death when he wrote: "The U.S. is killing our innocent civilians." Ambiguity may depend on the reader's point-of-view.
These statements also are missing the phrase "collateral damage," emphasized in Miller's televised reveal. Plus, the Indictment language is silent on the subjects of Tamerlan's martyrdom and Dzhokhar's expectation of joining him there soon...which might have made sense had the younger brother had a gun in the boat, and shot himself in the mouth in a suicide attempt. However, while there was a narrative floated to the public supporting that sequence of events, it was later dropped when the real facts on Dzhokhar's being unarmed came to light. Nonetheless, the CBS report gamely characterizes the boat confession as:
"...part manifesto, part suicide note, and part justification....."
7. How closely does the written language match the alleged suspect's own writings?
From the accused's J_tsar Twitter account:
- I've been looking for those, there is a shortage on the black market if you wanna make a quick buck, nuff said.. (4/16)
- you need to get Claritin clear (4/16)
- good luck my brother, I'm sure you'll get in (4/16)
- yo bigblack why are you saying "is" instead of "as" (4/14)
- every character on that show got some sort of std bro, I do like the show tho (4/13)
Here are some more, same time frame:
Compare his casual Americanized slang to this more stilted Indictment language:
- "I can't stand to see such evil go unpunished."
- "We Muslims are one body, you hurt one, you hurt us all."
- "...but due to said (...) it is allowed."
The differences are readily apparent; this confession wording is far more tortured and formal. These are also presented as stand-alone sentiments, same as with the markedly looser individual twitter comments above. (Although it could be argued that the writer intended to produce a more complete and formal statement, it is still speculation at this point.)
Another interpretation might be Tsarnaev is parroting what he has heard; these confession statements are not original sentiments, but learned elsewhere, remembered, and presented by rote.
"It is forbidden in Islam,..."
8. How was the evidence obtained and preserved?
Considering the importance of this evidence, and the information released of its location in the trailered boat in Watertown, one might expect it would be very carefully preserved, cordoned off, heavily guarded, etc. It is the only written statement the prosecution has post the Watertown shootout with the brothers, from the only living suspect. Mr. Miller himself confirms it is critical.
"...(W)hile Tsarnaev admitted many of the same details to authorities during his 16 hours in custody, those admissions came "during the time he was interrogated, but before he was given his Miranda warning." Th(is) note gives prosecutors supporting and clearly admissible evidence even if there is a fight over whether things Tsarnaev said before he was given his Miranda rights are admissible as evidence. (Per Miller's account on CBS News 05/16/2013.)
Seals the deal.
And yet, here's a Boat photo with a caption indicating this precious confession was not moved until sometime Monday or later, if you believe news reports.
Hope they kept it covered. Magic marker on a slick boat surface tends to smear if exposed to cool, damp New England nights, even those surfaces riddled with bullets.
References:
http://www.cbsnews.com/8301-505263_162-57584771/boston-bombings-suspect-dzhokhar-tsarnaev-left-note-in-boat-he-hid-in-sources-say/
http://www.politico.com/blogs/under-the-radar/2013/10/defense-tsarnaev-repeatedly-asked-for-lawyer-174489.html Motion on Discovery confirms Tsarnaev requested counsel during 16 hours of bedside questioning and was denied....
And Wikipedia for the Blacks Law Dictionary quotation
M. Baker: The author didn't pay attention during law school, but passed anyway. She's on her third career now, and finds this blog isn't just a hobby, but reflective of a passion for justice that colors everything she touches. Still can't write worth a d*** though.
http://www.politico.com/blogs/under-the-radar/2013/10/defense-tsarnaev-repeatedly-asked-for-lawyer-174489.html Motion on Discovery confirms Tsarnaev requested counsel during 16 hours of bedside questioning and was denied....
And Wikipedia for the Blacks Law Dictionary quotation
M. Baker: The author didn't pay attention during law school, but passed anyway. She's on her third career now, and finds this blog isn't just a hobby, but reflective of a passion for justice that colors everything she touches. Still can't write worth a d*** though.
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