What Would Require Explanation at a Tsarnaev Trial?

In late August, after Dzhokhar Tsarnaev had been incarcerated for allegedly bombing the Boston marathon for four months, without incident, the Obama administration’s Justice Department suddenly decided that his communication with the outside world was too dangerous, and ordered him placed under Special Administrative Measures (SAMs). As is noted in the legal defense team’s motions to vacate them, the excuses the government has offered for them are patently absurd, and so there has been speculation as to what the true reasons are for their imposition.

The speculation which has seemed likely to many is that the isolation of Tsarnaev that goes with the SAMs is designed to break his spirit, so that he would agree to a plea bargain and thereby let the government avoid a trial.

(The trial judge is currently considering the defense request to vacate the SAMs, but seems likely to relax the aspects that deal with the attorneys’ access to their client, while leaving his essential isolation intact. In this connection, there may be a media campaign in process to ridicule the seriousness of the isolation, as in this extreme Islamophobic assertion that Tsarnaev is currently getting “catered meals” and “copies of the Quran and other Islamic texts to brush up on his hatred for infidels.”)

It strikes me, then, that it is a good time to review why the government might want to avoid a trial. The following are issues that it could find difficult to get excluded.

Is the FBI or comparable agency continuing the investigation to discover who actually bombed the Boston marathon?

Two separate detailed analyses, by Baby Blake and by Woody Box, respectively, have concluded that the place where the indictment of Tsarnaev says he left his backpack, allegedly containing the second bomb, was not the point of origin of its explosion. In addition, it has long been noted that the photograph of an exploded backpack that the FBI has represented as having contained the first bomb, does not resemble the backpack worn by Tsarnaev’s brother Tamerlan, who it alleges detonated that bomb.

Let me be clear. Whatever the government might be able to demonstrate about the Tsarnaevs’ activities after the marathon bombings, it would not be able to prove that they caused those occurrences themselves to an unbiased jury. I have offered some speculations as to who might have been the true culprits (here and here), but whoever it was, that person or persons are still out there posing a danger to people and property. Is the government trying to stop this?

(The new Boston FBI chief has said he is committed to further investigation, but he seemed to mean uncovering further suspects connected to the Tsarnaevs. The last we heard a grand jury was still empaneled, but it was concerned to question Tamerlan’s in-laws. Of course, there is no reason to believe that the true culprits had any connection to the Tsarnaevs.)

Why would the brothers drive to the MIT campus just to find someone with a gun they could steal? And if they killed Officer Sean Collier, as the indictment alleges, in order to get his gun, why did they just not take it from its position lying on the ground, where first responders found it?

The story was widely circulated that the brothers killed Collier for his gun but could not get it out of its holster. The problem is that it was not in its holster when the body was first discovered. The government also claims to have forensic evidence for the murder, which of course it would have to produce at a trial to avoid one’s natural impression that the murder of Officer Collier was an unrelated incident.

Why did the alleged victim of a carjacking by the brothers on the night of April 18 say in one media interview that they spoke in a foreign language he could not understand (presumably Russian), but give a list of the subjects they discussed to another publication? Is it really only coincidental that the alleged victim was enrolled at a school where students are recruited for drills, whereas this year’s drill held in conjunction with the marathon was unusually prominent? What is the government’s theory of why the brothers needed the car when they already had one?

Why does the government equate what the indictment calls the “IEDs” that the brothers allegedly threw at police during the encounter of April 18-19 with the “WMDs” that were used for the marathon bombing, given that the former entities did not kill or injure anyone, nor cause damage?

Why was Tamerlan Tsarnaev apparently killed while in police custody?

This question has of course been prominent since the night of his death, which the indictment attributes to being run over by his brother Dzhokhar after being shot in the gunfight with police. A since deleted CNN video shows the arrest of a healthy naked man who virtually everyone who knew Tamerlan says is him. The police have said it was someone else, but have not produced the person. Good luck with that at an actual trial. Also, will autopsy photos show tire tracks on the body matching the tires of the SUV Dzhokhar was driving?

How could the confession Dzhokhar Tsarnaev allegedly wrote on the side of the boat where he was captured state that he would meet his brother in paradise when he had no means of knowing that his brother was dead? (Or, if the government is going with a version that no longer makes this claim, what happened to the version that did?) Where is the pen or marker that he used? How could he have written it in the dark? How could he have written it when seriously wounded?

Why was Dzhokhar Tsarnaev apparently shot in the mouth while in police custody?

The MSM have assumed that he must have sustained this wound during the shootout on the street or while he was being shot at in the boat. However, the medical report clearly states that it was the most severe of a number of wounds, and that he required the extremely strong pain medication Dilaudid. It is unlikely that he would have had the strength to climb out of the boat with this wound. Also, according to the report the bullet entered his mouth at an angle to his face, making it less likely that it could have entered via a shot from any distance away.

Why did the interrogation of Tsarnaev at the hospital where he was taken continue while he was gravely injured and after he had repeatedly requested legal counsel and was denied it? What protocols were the hospital’s medical personnel required to follow to cause them to allow this procedure?

In addition to these questions, another set would arise if the matter of Ibragim Todashev found its way into the trial. This might not happen, but presumably it would the instant the prosecution introduced the subject of the 2011 Waltham murders in an effort to impugn the Tsarnaevs.

What were the circumstances of the killing of Ibragim Todashev in Orlando, Florida on May 22 following the FBI’s investigation of his knowledge of the Tsarnaevs?

Of course at the time the FBI could not produce a coherent version of what happened and since then have clamped down on any possibility of an investigation, through such measures as withholding Todashev’s autopsy. That would be impossible to do if the case were introduced at a trial.

Why has the government continued to claim that Todashev implicated himself and Tamerlan Tsarnaev in the Waltham murders, even after his widow Reniya Manukyan said she had records to prove that Todashev was not in Massachusetts at the time of those murders? And did the FBI or other government agency have anything to do with the fact that her bank later canceled her account without offering a reason?

That does not exhaust the questions the might be asked. (What were representatives of the mercenary organization Craft International, whose backpacks resembled the exploded one touted by the FBI, doing at the marathon? Is it true, as witnesses have alleged, that the FBI seriously harassed Todashev and other members of the Orlando Chechen community?) I have only highlighted those that seem likely to most concern the government, and they indeed look worthy of concern.

If I were the President, reflecting on how the government has handled the worst terrorist attack on US soil since 9/11, I would certainly want to avoid having this material come out. To be sure, I would not be so cruel as to add to the suffering Dzhokhar Tsarnaev has already endured by imposing the SAMs in an effort to break him. Perhaps, rather, it might be appropriate to drop all charges along with offering a generous compensation package in exchange for an agreement on his part not to take legal action.

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