How Do You Spell C - O - V - E - R - U - P ?
09/04/2014 TBMB Team
With the luxury of time, it is easy to discern the outlines of what appears to be a concerted effort by various parties to disassemble, obfuscate, and render irrelevant uncomfortable facts and revelations concerning the Marathon bombing events and participants. Numerous embarrassing disclosures have been leaked over the past 16 months, initially denied but later admitted when there was simply no way to hold up the crumbling façade of ignorance. Now classic examples come to mind, ranging from previous 2010 FBI interviews with the "unknown" Tsarnaevs and a Defense allegation the FBI attempted to recruit the elder brother as an informant, to a fierce gunbattle with an unarmed Dzhokhar, to the seemingly inexplicable ease with which Tamerlan evaded 'no-fly list' travel restrictions at least twice for a trip home to Russia in 2012.
The following list, an even dozen, points to what has been a very favorable climate for the prosecution in the case U.S. v. Tsarnaev. In spite of diligent efforts by Tsarnaev's defense team lead by M. Conrad, J. Clarke, and D. Bruck, much of what has transpired since Dzhokhar's capture on April 19th has not bolstered what should be a spirited and first-class advocacy effort, although each of these attorneys has a stellar reputation in earlier Capital cases.
The following list, an even dozen, points to what has been a very favorable climate for the prosecution in the case U.S. v. Tsarnaev. In spite of diligent efforts by Tsarnaev's defense team lead by M. Conrad, J. Clarke, and D. Bruck, much of what has transpired since Dzhokhar's capture on April 19th has not bolstered what should be a spirited and first-class advocacy effort, although each of these attorneys has a stellar reputation in earlier Capital cases.
Here's the list, an even dozen. Make of it what you will.
01. The Defendant and his team have been effectively gagged by the indefinite imposition of SAMS. These restrictions were not deemed sufficiently imperative to invoke by the U.S. Attorney General until 4 months after his capture. What prompted this action?
02: Over 500 legal documents have been filed with court in this case. A large number of them, motions, replies, exhibits, etc. have been sealed. What can be so important to the Court and the parties but must be kept hidden from the media and the public? The most recent spate of these secret filings presumably cover discovery issues, but when, if ever, will these hidden aspects of the case be unsealed?
03: In contrast, there have been a significant number of leaks detrimental to the defense from unnamed gov't officials to select journalists. These nationally televised insights in the particulars of legal proceedings against Dzhokhar and others have been negative in nature and keep the case in the front of the public from whom a jury pool will be drawn.
04: The trial judge appointed for this case, Judge O'Toole, has a history of handling terrorism charges. He has presided over jury trials rendering harsh judgments against defendants, including the recent proceedings in the case of U.S. v. Tarek Mehanna. This is the same Judge who has admonished the prosecution about their failure to control leaks from law enforcement and others. But that's all he has done in the way of stemming the tide of information leaks and results speak for themselves.
05: The unprecedented release in the national media of Marathon crime scene re-enactments confused individual viewers into believing they were seeing the actual Marathon events. The 'info-tainment' programs featured retired law enforcement persons who brought another level of verisimilitude to these programs by recapping their experiences. And the airing of these re-enactments and their effect on the local jury pool? It was deemed unfortunate by the trial judge.
06: Over the interim months since the Marathon, we've witnessed the exodus of the key gov't players in these events from their positions via retirements, release and moving on "to seek fresh challenges." A role call of those most highly visible during the crises reveals none of them left standing with the exception of local detectives and beat cops. The last man standing with a profile during this period is the Chief of Police for Watertown Ed Deveau. Can all these exit strategies coming within several months of one another be purely a coincidence?
07: The Watertown events were crucial in establishing the guilty reactions of the Tsarnaev brothers. Widely reported to be the most complex crime scene ever in the state, Watertown would none-the-less recently be confirmed by C. Ortiz to comprise the gun battle on Laurel on the 18th and the capture of Dzhokhar the subsequent evening. The prosecution has pointedly informed the Defense that well-documented gun shots on Oliver Road and again at Spruce & Lincoln, police officer injuries, a shrouded body removed from the Laurel St. scene, and too many suspects taken into custody are all "unrelated" the case. The dismissal of the Motion seeking discovery on at least one of the events seems to have effectively closed the book on any other desperate events within a few blocks of Laurel St.
08: The Defense, pursuing information for both the guilt phase and the penalty phase in the form of mitigation should it be needed, has been further hampered by the round-up of the Tsarnaev's friends, family, and acquaintances for indictment, deportation, and multiple interviews and questioning. The actual deployment of over 1,000 FBI agents on this case, nationally and internationally, has lead to enormous amounts of data collection. The practical results of this data collection could easily be said to have ruined lives and lead to the killing of at least one individual by the FBI. And yet, when the mitigation team requests some of this data in the form of gov't files collected on Tamerlan Tsarnaev and Ibraghim Todashev relative to the Waltham murders, they are denied access to this evidence. If the State trial for Collier, held in abeyance at present, were to proceed, perhaps these files might be deemed relevant, but at this stage, they remain locked away.
09: With a trial date set for November 4, t0 the Defense falls the daunting task of preparing a strong case for the innocence of Dzhokhar and the more critical task of rebutting the evidence presented by the prosecution in the course of the trial. It is, after all, the gov't's role to lay out the available evidence for the jury to deliberate on when settling on a verdict. It is not the prosecution's role to "try the case." Consequently, the failure of Ortiz's team to produce evidence in a timely manner has prompted numerous requests from Tsarnaev's team of attorneys for missing materials. Has this hampered Conrad, et al's ability to mount an effective defense?
10: Conversely, when the prosecution finally began to release materials beginning a few months ago and continuing even now, their methodology would suggest one of 'burying the defense' in a mountain of paperwork. According to the recent filings, little of ithe data has been indexed or cataloged in a readily searchable format, little of it clearly earmarked such as to guide the defendant toward a more complete understanding of the most relevant evidence to be presented, and much of it is several months old, some collected more than a year ago only to be recently released. One has a vision of defense counsel standing over millions of sheets of paperwork, scratching their heads and wondering what to do next. Hardly an image one wants to think about when an accused individual is facing the death penalty.
11: And with the insistence of the Judge O'Toole on what voiced legal opinion considers a harshly, unrealistically early November 2014 trial date, taming this mountain of discovery to adequately prepare appears even more insurmountable. Because the push by the Judge for a Capital trial 18 months after the Marathon makes this one of the speediest Capital trials on record, on terrorism charges resulting in the death of three and injuries to more than 200 victims. J. Clarke, in a recent filing, has noted that maintaining this trial date, by defense's estimation would likely put any jury deliberations on the penalty phase of the trial squarely in line with the 2nd anniversary of the bombings, and all the resultant media attention.
12: Finally, the Boston area, primed and ready for what could be the Trial of the Decade, a guaranteed spectacle denied those whose family and friends perished with the impact of the planes on 9/11, must still field an impartial jury and the requisite number of alternates. The expert witness brought on board at what might technically be deemed almost the eleventh hour in terms of the run up to the November trial, has produced a document indicating what everyone already surmised. The jury pool has been heavily contaminated and empanelling an impartial jury may not be possible. This would appear to bolster the Change of Venue filings. But the credentials and history of Tsarnaev's expert witness has been called into question by Ortiz's team in a 20+ page document that smears this individual. And a rebuttal filing by yet another respected expert witness has been struck from the record by Judge O'Toole. What does the prosecution fear should this trial be moved out of state?
01. The Defendant and his team have been effectively gagged by the indefinite imposition of SAMS. These restrictions were not deemed sufficiently imperative to invoke by the U.S. Attorney General until 4 months after his capture. What prompted this action?
02: Over 500 legal documents have been filed with court in this case. A large number of them, motions, replies, exhibits, etc. have been sealed. What can be so important to the Court and the parties but must be kept hidden from the media and the public? The most recent spate of these secret filings presumably cover discovery issues, but when, if ever, will these hidden aspects of the case be unsealed?
03: In contrast, there have been a significant number of leaks detrimental to the defense from unnamed gov't officials to select journalists. These nationally televised insights in the particulars of legal proceedings against Dzhokhar and others have been negative in nature and keep the case in the front of the public from whom a jury pool will be drawn.
04: The trial judge appointed for this case, Judge O'Toole, has a history of handling terrorism charges. He has presided over jury trials rendering harsh judgments against defendants, including the recent proceedings in the case of U.S. v. Tarek Mehanna. This is the same Judge who has admonished the prosecution about their failure to control leaks from law enforcement and others. But that's all he has done in the way of stemming the tide of information leaks and results speak for themselves.
05: The unprecedented release in the national media of Marathon crime scene re-enactments confused individual viewers into believing they were seeing the actual Marathon events. The 'info-tainment' programs featured retired law enforcement persons who brought another level of verisimilitude to these programs by recapping their experiences. And the airing of these re-enactments and their effect on the local jury pool? It was deemed unfortunate by the trial judge.
06: Over the interim months since the Marathon, we've witnessed the exodus of the key gov't players in these events from their positions via retirements, release and moving on "to seek fresh challenges." A role call of those most highly visible during the crises reveals none of them left standing with the exception of local detectives and beat cops. The last man standing with a profile during this period is the Chief of Police for Watertown Ed Deveau. Can all these exit strategies coming within several months of one another be purely a coincidence?
07: The Watertown events were crucial in establishing the guilty reactions of the Tsarnaev brothers. Widely reported to be the most complex crime scene ever in the state, Watertown would none-the-less recently be confirmed by C. Ortiz to comprise the gun battle on Laurel on the 18th and the capture of Dzhokhar the subsequent evening. The prosecution has pointedly informed the Defense that well-documented gun shots on Oliver Road and again at Spruce & Lincoln, police officer injuries, a shrouded body removed from the Laurel St. scene, and too many suspects taken into custody are all "unrelated" the case. The dismissal of the Motion seeking discovery on at least one of the events seems to have effectively closed the book on any other desperate events within a few blocks of Laurel St.
08: The Defense, pursuing information for both the guilt phase and the penalty phase in the form of mitigation should it be needed, has been further hampered by the round-up of the Tsarnaev's friends, family, and acquaintances for indictment, deportation, and multiple interviews and questioning. The actual deployment of over 1,000 FBI agents on this case, nationally and internationally, has lead to enormous amounts of data collection. The practical results of this data collection could easily be said to have ruined lives and lead to the killing of at least one individual by the FBI. And yet, when the mitigation team requests some of this data in the form of gov't files collected on Tamerlan Tsarnaev and Ibraghim Todashev relative to the Waltham murders, they are denied access to this evidence. If the State trial for Collier, held in abeyance at present, were to proceed, perhaps these files might be deemed relevant, but at this stage, they remain locked away.
09: With a trial date set for November 4, t0 the Defense falls the daunting task of preparing a strong case for the innocence of Dzhokhar and the more critical task of rebutting the evidence presented by the prosecution in the course of the trial. It is, after all, the gov't's role to lay out the available evidence for the jury to deliberate on when settling on a verdict. It is not the prosecution's role to "try the case." Consequently, the failure of Ortiz's team to produce evidence in a timely manner has prompted numerous requests from Tsarnaev's team of attorneys for missing materials. Has this hampered Conrad, et al's ability to mount an effective defense?
10: Conversely, when the prosecution finally began to release materials beginning a few months ago and continuing even now, their methodology would suggest one of 'burying the defense' in a mountain of paperwork. According to the recent filings, little of ithe data has been indexed or cataloged in a readily searchable format, little of it clearly earmarked such as to guide the defendant toward a more complete understanding of the most relevant evidence to be presented, and much of it is several months old, some collected more than a year ago only to be recently released. One has a vision of defense counsel standing over millions of sheets of paperwork, scratching their heads and wondering what to do next. Hardly an image one wants to think about when an accused individual is facing the death penalty.
11: And with the insistence of the Judge O'Toole on what voiced legal opinion considers a harshly, unrealistically early November 2014 trial date, taming this mountain of discovery to adequately prepare appears even more insurmountable. Because the push by the Judge for a Capital trial 18 months after the Marathon makes this one of the speediest Capital trials on record, on terrorism charges resulting in the death of three and injuries to more than 200 victims. J. Clarke, in a recent filing, has noted that maintaining this trial date, by defense's estimation would likely put any jury deliberations on the penalty phase of the trial squarely in line with the 2nd anniversary of the bombings, and all the resultant media attention.
12: Finally, the Boston area, primed and ready for what could be the Trial of the Decade, a guaranteed spectacle denied those whose family and friends perished with the impact of the planes on 9/11, must still field an impartial jury and the requisite number of alternates. The expert witness brought on board at what might technically be deemed almost the eleventh hour in terms of the run up to the November trial, has produced a document indicating what everyone already surmised. The jury pool has been heavily contaminated and empanelling an impartial jury may not be possible. This would appear to bolster the Change of Venue filings. But the credentials and history of Tsarnaev's expert witness has been called into question by Ortiz's team in a 20+ page document that smears this individual. And a rebuttal filing by yet another respected expert witness has been struck from the record by Judge O'Toole. What does the prosecution fear should this trial be moved out of state?