Yesterday the prosecution in the Boston marathon bombing case issued a notice of modification to the Special Administrative Procedures (SAMs) that have been applied since Auguast 27 to the incarceration of defendant Dzhokhar Tsarnaev (so Politico, with a link to the filing). Specifically, the modification relaxes the SAMs to allow people like investigators and paralegals as well as the attorneys themselves to be privy to the defense’s discussions of defense and to meet with the client, i.e., essentially allows the defense team to function like one would normally expect as long as its members confine their discussions to what is “relevant” to the defense.

(Also included are a “mitigation specialist” and a “mental health consultant” to advise the defense as to factors in the defendant’s life prior to his alleged offense, in anticipation of a possible conviction and subsequent penalty phase trial. Lately that possibility has greatly excited the MSM, who consider it a near-certainty, but I am not writing for them.)

This is presumably the result of the trial judge George O’Toole’s admonishment at the November 12 status hearing. Namely, while taking the defense’s motion to vacate the SAMs under consideration, he asked the two sides to negotiate the conditions on the defense team in the interim, saying that his role was to decide “not whether SAMs are annoying but if they are limiting” to the defendant’s right to a fair trial.

It seems possible that the defense team members could still be “Lynne Stewarted” if they don’t watch what they say, and end up as criminal defendants themselves, but I’ll leave that aside here. What about Tsarnaev himself?

Let us review what Judge O’Toole feels is “annoying” (pp, 5-6 of the defense motion). Tsarnaev is held in solitary confinement (likened to torture by the UN Special Rapporteur on torture), with no oral or written contact with other inmates and no participation in group prayer. Apart from communication with attorneys he is allowed mail or phone calls or visitors only with immediate family members, with the mail he sends restricted to one letter a week. No physical contact with visitors. Family members cannot divulge content of phone calls to third parties. All such communication is monitored.

As to communication with attorneys (pp. 4-5), it is restricted to what is relevant to the legal defense, presumably according to the government’s definition of relevance. (For example, one imagines that the attorneys are not allowed to inform Tsarnaev that more than a few people don’t believe he bombed the marathon.)

The government’s stated rationale for all this is adequately refuted by the cited defense motion.

I submit that those who ought to be “annoyed” by this situation are right-thinking people everywhere, who should demand an end to it with all due speed.

E. F. Beall

E. F. Beall