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Government Responds to Defense Motions in the Dzhokhar Tsarnaev Case

The prosecution has filed responses to two defense motions. #1 Denial of request for further disclosure of evidence, both mitigating and exculpatory. #2 Denial of request for removal of Special Administrative Measures imposed on Dzhokhar Tsarnaev.

Memo to 112 (Motion to Compel Discovery) Document 129 10212013 by Josefina Romano

Motion #1 opens with this comment: “Virtually all of Tsarnaev’s written requests were for mitigation information … Although 17 of the crimes charged in the indictment carry the death penalty, a death penalty hearing in this case is not imminent. Nevertheless, the government responded to Tsarnaev’s requests by voluntarily producing virtually all potential mitigating information in its files.”

However, it’s not “all about mitigation”. The motion goes on to talk at length about possible exculpatory evidence. “The prosecution is not required to deliver his entire file to defense counsel, but only to disclose evidence that, if suppressed, would deprive the defendant of a fair trial … The government satisfies its obligation by disclosing the identities of potentially exculpatory witnesses. It has no constitutional obligation to produce exculpatory statements made by the witnesses, let alone provide entire unabridged wiitness statements.” In other words, defense can’t “go fishing” through witness statements. Just interview ‘em yourself, Miriam.

The defense claimed that the government produced “only sanitized summaries of isolated facts as opposed to complete and accurate summaries of all exculpatory information.” Prosecution’s response: “these claims are false and unsupported.”

Defense has been denied access to Afiles (immigration files?) on the Tsarnaevs, Dzhokhar’s Kazakh friends, and Ibragim Todashev. The argument that defense can interview the family and the Kazakh boys seems reasonable; but given all the questions about Todashev’s death, it’s obvious why defense would like to look at his file.

Prosecution also claims that some of their info “flatly contradicts mitigating evidence”, and might be used against him later, so they don’t want to give his team a chance to work up a defense against it.  Legal people, help! I thought “mitigating evidence” was strictly the “personal history and character” info. What secrets could they know about his character and history that he doesn’t know himself?

Motion #2 relies heavily on the boat-note fable to justify the SAMs. I’ll summarize for any lurkers who may be in doubt about this one. We know that Dzhokhar was weak from blood loss. The boat was in darkness. He was not suicidal, and apparently not real anxious to be a martyr, so, why produce a “martyr’s manifesto”? And, contrary to one statement in the note, he was probably unaware that his brother was dead and “in paradise”. Further debunking is available at

Several other points are raised in Motion #2 to prove how dangerous Dzhokhar is. One, that he used “terrorist tradecraft” by smashing his cell phones to avoid tracing of his location by GPS. It sounds reasonable to do this if you don’t want to be found, even if you’re not a terrorist. He seems to be a smart, tech-savvy young man. Two: Al Qaeda has praised the Marathon bombing and encouraged others to emulate it. In other words, Dzhokhar’s access to the outside world is being restricted, not because of his guilt, but because of the widespread belief in his guilt.

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