With his latest orders, Judge George O’Toole has finished all speculations about location and begin of the Tsarnaev trial and confirmed the low-level expectations of his critics: there will be no change of venue – despite grave objections of law pundits like Neal Vidmar – and the two-month postponement of the trial is little more than a fig leaf to uphold the charade of a fair trial with ample time for the defense to prepare. For convenience, here is the timetable until January 5th, the day the trial commences:
October 2, 2014: Defense guilt-phase reciprocal discovery under Rule 16(b)(1)(A), (B) and (C), including responsive and affirmative expert discovery.

October 20, 2014: Status Conference.

November 3, 2014: Government guilt-phase responsive expert discovery.

November 24, 2014: Defense penalty-phase reciprocal discovery under Rule 16(b)(1)(A), (B), and (C), including responsive and affirmative expert discovery.

December 15, 2014: Defense list of mitigating factors.

December 18, 2014: Final Pretrial Conference.

December 22, 2014: Government penalty-phase responsive expert discovery.

January 5, 2015: Trial commences.

The mentioned rule for the defense’s discovery refers to documents and objects (A), examinations and tests (B), and expert witnesses (C). It does not refer to actual or prospective (non-expert) witnesses for the government or the defense. This is an important aspect given the many potential eyewitnesses for the second bomb site (there was talk about 16 or 17 defense witnesses). As we have learned from FDL special judicial adviser oldgold the defense has to submit a list of these winesses five days prior to the last status conference, which would be on December 13th.

The prosecution has managed to force the defense to name their expert witnesses before they are even able to know the crucial evidence that makes up the prosecution’s case. David Frank has hinted at the big probability of an appeal if the defense doesn’t get enough time to prepare. I doubt that he has changed his assessment in consideration of the two additional months.

I recall that jane24 once reported an indignant outcry of Judy Clarke after she had learned that the prosecution didn’t intend to present at least one expert on explosives. This is most surprising, because the question which explosives were used for the bombs and whether they are identical to the “bomb” built by Dzhokhar is of top significance. Again, the metaphor of a poker match is obvious. The defense would like to take a prosecution expert’s testimony on explosives as a working platform to react and look for their own experts. As matters stand, they won’t get this platform, but will have to present expert testimony without knowing the prosecution’s case. This way, the government can present its responsive experts after the defense, giving them an unfair edge.

It is evident by now that there will no plea deal. And it is foreseeable that it will be a most unusual trial (it already is a most unusual pretrial phase) which will be unique in the US judicial history.