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Boston Bombing News: “Active Defense”

This diary entry is basically a continuation of the last BBN by leftcoast and jane24, who attended the 6th status conference for Dzhokhar Tsarnaev.

The hearing was apparently in many ways “business as unusual”, as the mutual complaints of the prosecution and the defense continued to flare without solution and judge O’Toole continued with his biased pro-government rulings, especially by denying a hearing about the government’s leaks to the media.

But many things seem to happen behind the scenes. As Jane has pointed out, there was one interesting look through the keyhole:

Yesterday's most notable admission, imo, was that DT's case is unusual in that
unlike "most" Federal criminal cases, the defense actually intends to put
forward a case, and mount an active defense on behalf of their client.

This apparently includes “multiple witnesses” for the defense (Source: USA Today)

The trial will be "very different" from most criminal cases, said Assistant 
U.S. Attorney William Weinreb, insofar as the defense plans to call multiple 
witnesses of its own. He said the trial will play out in two phases as each 
side takes a turn calling its own witnesses. In most criminal cases, he said, 
the defense does not put on its own case.

According to Weinreb, these multiple witnesses will come into play in phase 2, the penalty phase, after Dzohkhar has already earned a guilty verdict, i.e. for mitigation reasons only. The prosecution has always tried to create the impression of a slam dunk trial where the guilty verdict is unavoidable and the defense has only a chance to gain some ground in the penalty phase. The defense has never offensively proclaimed Dzhokhar’s innocence, but they also never confirmed the presumptions of the prosecution.

Weinreb also said that the prosecutors don’t want to be “surprised” and “ambushed” by the sudden presentation of defense witnesses at the trial. For some reason they seem to know that the defense has a lot of witnesses in its pocket. It is hard to imagine that the prosecution is afraid of the devastating and unexpected judgement of an army of mental health experts and psychologists to keep off Dzhokhar from the death verdict. The line of argumentation for mitigation seems to be clear after all – the strong influence of his brother – and two or three experts seem to be sufficient to establish that.

There must be more. The case is unusual because most federal cases end with a plea deal, without any penalty phase. But the prosecution has learned by now that Dzhokhar doesn’t intend to take a deal. Which means that he’s going to fight in the guilt phase to prove his innocence. So the prosecution is apparently wary that some of these multiple defense witnesses will be presented in phase 1, the guilt phase.

The defense definitely has not provided the prosecution with any of their own experts or witnesses. They conceal their evidence like the prosecution conceals their one. But is the defense not obligated to present any of their own experts/witnesses for phase 1 before the trial begins? In Doc 245, a motion filed in April 2014, the government demands:

The United States of America, by and through undersigned counsel, respectfully
moves for an order to (1) compel reciprocal discovery by defendant, Dzhokhar 
Tsarnaev (“Tsarnaev”), under Federal Rule of Criminal Procedure 16(b) and Local 
Rule 116(d), and (2) preclude Tsarnaev from introducing any evidence in his 
case-in-chief at trial or sentencing that has not been provided to the 
government by April 30, 2014, unless Tsarnaev can demonstrate that (a) the 
evidence is newly discovered and was promptly produced; or (b) that the 
government introduced evidence in its case in case-in-chief that Tsarnaev could 
not in good faith have anticipated, and in fairness Tsarnaev ought to be 
able to rebut that evidence by presenting his own evidence in the defense 
case-in-chief.

It is unclear if the judge has responded positively or negatively to this demand. I didn’t find any corresponding court document. Fact is that the defense has not named one single of its own experts or witnesses to the prosecution. In the most recent order, Doc 498, a response to a motion filed by the defense in Doc 440, the judge sets deadlines for both sides concerning the disclosure of expert testimony, but only on “ballistics, fingerprints, blood, and DNA evidence”. This is only a small chunk from the overall (“any”) evidence mentioned in Doc 245.

So it’s still unclear what “multiple witnesses” Weinreb was talking about. We shouldn’t take his insinuation that all of them are related to the penalty phase at face value. There are dozens of witnesses for the explosion of the second bomb. Are these the people Weinreb fears to be ambushed from?

 

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