The government’s decision on whether or not to seek the death penalty should Dzhokhar Tsarnaev be convicted of bombing the Boston marathon is not due until the end of January, so you would think the media would find something else to talk about. But for some reason USAToday, and then HuffPo, have thought now a good time to wax eloquent on the subject with articles on how “complicated” the issue is (USAToday), or how weighty is the decision “by Attorney General Eric Holder” (HuffPo, i.e., assuming for some reason that decisions on the most serious attack on US soil since 9/11 are not being made at the highest level of the West Wing).

Of course, these venerable representatives of print and on-line journalism, respectively, see no need to issue the proviso that first he has to be convicted. As USAToday puts it,

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.

You might quibble that what is shown in the one photographic image the prosecution has actually said it possesses, a surveillance video, is Tsarnaev leaving a backpack, and that the government would have to prove that said backpack contained explosives. But you are not tasked with writing an account of the punishment to be expected, with no more treatment of actual guilt than is needed to avoid interrupting the story line.

But why write this now?

Well, two things have happened in the last week or two. For one thing, trial judge George A. O’Toole, Jr., has denied most of the Tsarnaev legal defense’s request for additional discovery, saying that it did not, and must, show specifically how the desired materials would assist its case. I suppose that might persuade some publication editors that the defense has been dealt a heavy blow, so that it is time to discuss what will happen post-conviction.

But then there is the second thing. You see, USAToday notwithstanding, there is a lot of “argument about the strength of the case against Tsarnaev,” even if it has not been included in the corporate media coverage. For several months there have been demonstrations, of which the most persuasive is that of Woody Box published in July, that an explosion at the point where the government says Tsarnaev left his backpack could not have produced the pattern of injuries that occurred. There are other arguments centering on the unconvincing claim that a person of Tsarnaev’s personality could be a terrorist, noting that he and his brother did not behave as would be expected of guilty parties in the days immediately following the bombings before they were named as suspects, and pointing to contradictions in the government’s claims about the backpacks and the explosives used.

On top of all this, the second thing is attention to another video that the government has suppressed since naming the Tsarnaevs the culprits. Woody Box has now reviewed the fact that on April 17, two days after the bombing and a day before the Tsarnaevs were put forth, Law Enforcement extending up to the then-mayor of Boston put a good deal of stock in the surveillance camera attached to the Lord & Taylor business, which in particular showed a dark-skinned man leaving a bag at the approximate location of the explosion the government blames on Dzhokhar Tsarnaev. Moreover, concurrently law enforcement told several media that a suspect was in custody, only to deny this later.

(One might get the impression here that the dark-skinned person in the video and the person in custody were one and the same, but I do not believe this to be the case. The detained person is easily identified as the Saudi exchange student Abdulrahman Ali Alharbi, who was wounded in the bombing and then found his hospital bed cordoned off by the FBI and the Boston Police. Eventually, apparently after high level intervention by the Saudi government, he was released. He could not have been the actual bomber unless you believe he was so foolish as not to get out of the way before the thing went off.)

The fact is that the government’s case is full of holes and is an inch from the more adventurous of the MSM beginning to call it to account. Indeed, this has already happened to its move to impose Special Administrative Measures on Tsarnaev’s incarceration. Its rationale that his communications with the outside world suddenly began to pose a threat four months after his arrest is so transparently ridiculous that publications like the Atlantic have offered critical judgments.

(As I have previously argued, the true purpose of the SAMs seems to be to attempt to break the defendant’s spirit and get him to agree to a plea bargain, thereby avoiding a trial which would expose the government’s shoddy conduct of this case.)

Previously the MSM read a defense motion selectively, to mean that all hope for acquittal was lost and that it would offer an “evil older brother” excuse in asking for leniency in punishment. Yes, the government’s case is so assured that it is time to enter a really, really serious discussion of Tsarnaev’s punishment. Let us now use every bit of the two months before “Holder” makes his decision to air it thoroughly. Right.

E. F. Beall

E. F. Beall