The other news: Discovery issues still at the heart of the BMB case by B Blake
March 29 2014
A week of news...
The Boston marathon bombing case burst back into the headlines this week after a flurry of 'new' information was made public.
60 Minutes aired an interview with Stephanie Douglas, executive assistant director of the FBI’s national security branch, who described the moment she saw a video of what she believed to be Dzhokhar Tsarnaev's backpack on the ground, whilst former special agent in charge Richard Deslauriers recalled his 'eureka' moment in cracking the BMB case - the same video showed 'a man not turning to his left when an explosion went off'. Deslauriers' wife was also credited with solving the Collier murder.
The Florida State Attorney finally released his Todashev report, but it was so abysmal it left the world with more questions than it sought to answer in the first place. There were wildly differing accounts of how Todashev met his end - by the only two witnesses to his shooting; two confessions (one of which bore no relation to the Waltham crime scene), and the admission by the Chief Medical Examiner that he had discounted the notion that Todashev was shot in the back because 'the witness statements said otherwise', even though he conceded such a scenario was entirely possible.
The House Committee on Homeland Security also released a report which looked into perceived 'intelligence failings' with respect to Tamerlan Tsarnaev. Aside from a few details, it told us nothing we didn't already know - that Russia had warned the US of Tamerlan's alleged activities, his name had been misspelled on a database, and enquiries into him had 'found no links to terrorism'. Hardly earth-shattering.
Then there was the strange news that Dzhokhar Tsarnaev's attorneys had somehow forgotten their client's not guilty pleas and that he was facing a potential death sentence upon conviction: by simply admitting his guilt in court filings, that also sought to place increased blame on his older brother for the marathon bombing attack.
In what felt like a form of collective media psychosis, the two stages of a defense case (trial and mitigation) were left completely unrecognised. Yet, if one looked a little closer, it soon became apparent why the defense may have chosen to concentrate its efforts on mitigation at this particular stage. Other filings revealed that the prosecution are still stalling, and still refusing to reveal evidence on a number of key issues.
The Florida State Attorney finally released his Todashev report, but it was so abysmal it left the world with more questions than it sought to answer in the first place. There were wildly differing accounts of how Todashev met his end - by the only two witnesses to his shooting; two confessions (one of which bore no relation to the Waltham crime scene), and the admission by the Chief Medical Examiner that he had discounted the notion that Todashev was shot in the back because 'the witness statements said otherwise', even though he conceded such a scenario was entirely possible.
The House Committee on Homeland Security also released a report which looked into perceived 'intelligence failings' with respect to Tamerlan Tsarnaev. Aside from a few details, it told us nothing we didn't already know - that Russia had warned the US of Tamerlan's alleged activities, his name had been misspelled on a database, and enquiries into him had 'found no links to terrorism'. Hardly earth-shattering.
Then there was the strange news that Dzhokhar Tsarnaev's attorneys had somehow forgotten their client's not guilty pleas and that he was facing a potential death sentence upon conviction: by simply admitting his guilt in court filings, that also sought to place increased blame on his older brother for the marathon bombing attack.
In what felt like a form of collective media psychosis, the two stages of a defense case (trial and mitigation) were left completely unrecognised. Yet, if one looked a little closer, it soon became apparent why the defense may have chosen to concentrate its efforts on mitigation at this particular stage. Other filings revealed that the prosecution are still stalling, and still refusing to reveal evidence on a number of key issues.
Can we have some evidence please?
The government has stated for many months that after providing 'tera-bytes of information', it believes discovery to be complete. With that in mind, and a trial date set for just seven months time, what exactly are Tsarnaev's lawyers asking for? What 'scraps' of discoverable evidence can possibly be left for the defense to pick over?
Watertown and Officer Donahue shooting:
- lndex of all law enforcement weapons fired during the encounter at Laurel and Dexter Streets and at the 61 Franklin Street vicinity and reports of any testing/ballistics done in regard to those weapons.
- Reports of investigations into shots fired on or near Oliver Road between Dexter and Adams Sts,Watertown (there were three shoot-outs on the night in question)
- Reports of investigations conducted by the Middlesex District Attorney's Office (or any law enforcement agency) into the shooting of Officer Donahue
- Treatment/medical records of Officer Donahue in connection with the injuries sustained as a result of being shot
- Reports documenting blood and urine trails and the use of dogs during the search for a suspect in the Spruce/Lincoln/Walnut and Franklin areas of Watertown.
The government's response?
'To the extent that an investigation into the shooting of MBTA Police OfficerDonahue is ongoing, there were no reports to provide you. Reports generated in that investigation, if they have not already been provided, will be assessed for production if and when we receive them'
In other words, 'we do not have the evidence you requested, but if it does become available to us at a later date, we may think about disclosing it to you'. It doesn't end there.
Collier shooting:
- Incident and investigative reports from MIT personnel and officers at the scene: none have been supplied to the defense.
And possibly linked to that:
Crucial forensic evidence
- Tests and examinations involving DNA, blood, fingerprints, hair, ballistsics, gunshot residue, explosives, chemicals, materials and handwriting: much has yet to be provided to Tsarnev's attorneys.
Reports that have been provided are said to be incomplete with large portions redacted, including names that the government has chosen to hide in a bid to 'maintain the secrecy of ongoing investigations'.
The lack of forensic evidence disclosed thus far also extends into the digital sphere:
The lack of forensic evidence disclosed thus far also extends into the digital sphere:
Digital evidence
- Forensic tool kit and Encase reports (digital forensic analysis) relating to computer equipment and digital media, seized and examined during the course of the investigation.
The prosecution has refused discovery of these items on the basis that it 'does not believe they constitute a scientific test or experiment', even though they intend to rely on the purported results obtained from them at a future trial.
Mountain of evidence or needle in a haystack?
So after months of repeated discovery requests the government is still finding 'reasons' to withhold evidence, despite their claims to the contrary. Whilst it may be true that the prosecution has provided the defense with'voluminous discovery', if that discovery omits key evidence (such as DNA, handwriting and ballistics reports), then 'voluminous dicovery' has no meaning beyond the superficial – it simply means the government has provided 'a whole heap of stuff'.
Despite this, Tsarnaev's attorneys have not sat back and hoped for a change in the government's demeanor. They know it is just as important to prepare a mitigation case as it is to prepare a defense case for trial. A mitigating case must deal with a hypothetical scenario in which their client is convicted. So why is it 'news' that their recent efforts have been focused on mitigating arguements, should their client require them at some future point ?
Tsarnaev's lawyers are far from foolish. By pursuing discovery from a mitigation standpoint they are aware that anything remotely favorable to Tsarnaev must be disclosed to the defense. Accordingly, they have also pressed for access to the government's 'A files' on Tsarnaev family members, Ibragim Todashev's interviews with FBI agents, autopsy photos, the Waltham files, surveillance evidence on Tamerlan Tsarnaev, and any evidence that suggests Tamerlan was approached to be/was an FBI informant.
Once again it seems the real news stems from precisely what the government is NOT disclosing: a 'voluminous' amount of evidence - which is particularly ironic given the circumstances.
Despite this, Tsarnaev's attorneys have not sat back and hoped for a change in the government's demeanor. They know it is just as important to prepare a mitigation case as it is to prepare a defense case for trial. A mitigating case must deal with a hypothetical scenario in which their client is convicted. So why is it 'news' that their recent efforts have been focused on mitigating arguements, should their client require them at some future point ?
Tsarnaev's lawyers are far from foolish. By pursuing discovery from a mitigation standpoint they are aware that anything remotely favorable to Tsarnaev must be disclosed to the defense. Accordingly, they have also pressed for access to the government's 'A files' on Tsarnaev family members, Ibragim Todashev's interviews with FBI agents, autopsy photos, the Waltham files, surveillance evidence on Tamerlan Tsarnaev, and any evidence that suggests Tamerlan was approached to be/was an FBI informant.
Once again it seems the real news stems from precisely what the government is NOT disclosing: a 'voluminous' amount of evidence - which is particularly ironic given the circumstances.
Related posts:
Dzhokhar Tsarnaev smashed his phones: more 'non-news' in the BMB case
State V Tsarnaev: Have the gloves come off?
State V Tsarnaev: Have the gloves come off?
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