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Boston Bombing News: U.S. v Tsarnaev: 9th. Status Conference

The 9th. Status Conference in the case of US v Dzhokhar Tsarnaev was held at Moakley Courthouse in Boston on Wednesday, 12th. November at 10.00 am in Courtroom 9. The defense in this case were represented by Judy Clarke, William Fick and Timothy Watkins while William Weinreb, Aloke Chakravarty, Nadine Pellegrini and Steven D. Mellin were present for the prosecution. Judge O’Toole was, of course, presiding. The defendant waived his right to attend.

Proceedings opened with the judge indicating that he would like to discuss pending motions and most specifically those related to discovery and “leaks.” He said that he was “fully briefed” on these motions but was prepared to hear oral arguments “as we’re here.”

Government’s Refusal to Disclose Evidence Related to the “Waltham Murders”:

Timothy Watkins questioned the government’s refusal to disclose evidence related to a triple homicide which took place in Waltham, Massachusetts in 2011. He stressed the relevance of this evidence to his client’s case saying that if Tamerlan Tsarnaev was in fact involved in the Waltham murders, that this would be “a very important thing for the jury to know.”

Watkins also questioned the government’s changing narrative in that the government initially alleged Tamerlan Tsarnaev’s involvement and then recently admitted to having no evidence to indicate that this was the case. He pondered Ibragim Todashev’s alleged “confession” and asked if the government is now saying that this alleged “confession” is invalid?

Mention was made of recent claims that the government has a witness who would testify that Dzhokhar Tsarnaev was aware of his brother’s role in the triple homicide.

William Weinreb’s response was that the prosecution had been “misunderstood” regarding the Waltham evidence and that they had not said that they had no evidence, but rather that they have no new evidence.

He admitted that an attorney for someone claiming that Dzhokhar knew of Tamerlan’s participation in the Waltham murders had contacted the prosecution but claimed not to know if this person was “telling the truth”, or, indeed, if they would be prepared to testify.

The Middlesex County District Attorney’s ongoing investigation into the Waltham murders was cited as additional reason to deny disclosure of any information and Weinreb again insisted that any such information had no relevance to Dzhokhar Tsarnaev or the bombing of the Boston Marathon adding that  “the information is entirely irrelevant and would not be admissible in a sentencing hearing.” Weinreb then portrayed the Waltham murders as a local case and one in which the Feds have little interest.(!)

Timothy Watkins responded by saying that citing the Middlesex DA’s ongoing investigation is, he believes, “an artificial attempt to evade discovery obligations” but that  “if there is a law enforcement reason to not disclose this evidence, then this trial should be put on hold.” Watkins ridiculed Weinreb’s suggestion that the FBI had little interest in Waltham murders and cited the killing of Ibragim Todashev.

Judge O’Toole declined to rule saying that he would “take it under consideration.”

That Communication from the Russian Government:

Dzhokhar Tsarnaev’s defense continue to complain that the only copy of this alleged communication in their possession is missing it’s upper and lower portions and is so heavily redacted that, according to Judy Clarke, it is no more than “disembodied words on a page.” William Weinreb’s only response was that the content not made available was not necessary to the defense.

Judge O’Toole again declined to rule on this issue.

Leaks: (Or:  “Statements Made to the Media by Law Enforcement’?)

Judy Clarke actually suggested in court today that the term “leaks” should likely be replaced with “statements made to the media by law enforcement” when the defense again requested a hearing to address this. Judge O’Toole asked if the defense are requesting this hearing to emphasize to law enforcement that such conduct is inappropriate, or for information. Judy Clarke’s response was that such a hearing should serve both purposes. She suggested that the court should “invite those responsible to a hearing to address this” and went on to say that she would like to know “who is responsible, what’s happening and why.”

William Weinreb then described to the court the lengths the prosecution had gone to in their efforts to prevent law enforcement from commenting on this case to the media. As we know, USDA Carmen Ortiz wrote to several branches of law enforcement asking them not to do this. Weinreb stressed that the prosecution had even gone so far as to follow up on this, in that they contacted law enforcement to confirm that they’d read the letter and that Ortiz’s communication had been forwarded to all within law enforcement as was thought necessary. He went on to suggest that perhaps the comments attributed to law enforcement by a certain local reporter had not been made by law enforcement at all. (?)

Judge O’Toole, yet again, declined to rule.

Other Discovery:

According to the defense, thus far, the only analysis of an electronic device received by the defense, from the prosecution, via discovery, is the analysis of Dzhokhar’s personal computer. Judy Clarke said that she found it hardly credible that the FBI have performed no analysis on the numerous other electronic devices related to this case which are in their possession.

William Weinreb denied that any reports on analysis of other electronic devices are in existence but said that should such reports become available they would be provided to the defense in due course.

Scheduling & Trial:

Routine scheduling was discussed but the most notable was in regard to defense disclosure of their witness and exhibit list. The defense had indicated that they did not intend to disclose this information until 30th. January , 2015.

William Weinreb said that the prosecution believes that the defense “simply seeks to gain advantage.” He added that “witnesses should be available to both parties” and said he was aware of no evidence to support allegations made by the defense, of witness intimidation.

Timothy Watkins reiterated that which the defense have now claimed on multiple occasions, that being that the defense cannot be compelled by any law to disclose this information. Judy Clarke added that local rules, (as cited by the prosecution), do not apply in capital cases. Timothy Watkins then spoke of the defense’s concern that premature disclosure of witnesses for the defense would lead to witness intimidation by the FBI and that if this were allowed to happen the defense could find themselves with no witnesses at all by the time this case goes to trial. Watkins said that the defense are experiencing great difficulty in persuading witnesses to testify, due, in the most part, to fear.

Judge O’Toole then informed the court that he was “fully aware of his authority to rule in this matter” and ruled, predictably enough, in favor of the prosecution. Disclosure of witness lists and exhibit lists from the defense are now due on 29th. December. (I personally expect to see further filings related to this matter.)

Judge O’Toole announced today that trial in this case would run Monday through Thursday, 9.00 am – 4-00 pm, (or later if necessary), instead of the usual Monday through Friday, 9.00 am – 1.00 pm. The trial will continue through school vacations. Those effected by such vacations will not sit on the jury. On weeks when the Monday is a public holiday the trial will run Tuesday through Friday.

At the end of today’s status conference, which lasted 50 minutes, William Weinreb asked Dzhokhar Tsarnaev’s attorneys if their client would attend the pretrial conference scheduled for 18th. December. They replied that this was their client’s intention.

Notes:

Unlike the previous status conference in October there was no particularly obvious presence of law enforcement today, either outside or inside the courthouse. Today’s hearing was sparsely attended with approximately eight people representing the media, three members of the public and a half dozen attorney/law students present. I saw no one who appeared to be a victim or survivor of the bombing in the courtroom today.

For once, the defense were first to enter the courtroom. Both parties lingered in the courtroom for some time after the conclusion.

Donald Cabell, although no longer acting for the prosecution due to his pending judicial appointment, was in court today, presumably to observe.

Other Cases:

Azamat Tazhayakov:

The motion hearing, (acquittal/new trial), for Azamat Tazhayakov, which was previously scheduled for this afternoon was cancelled. ( I would guess that this may be due to the “Florida Fish” case, now with the Supreme Court, and which may have some relevance in the cases of both Azamat Tazhayakov and Dias Kadyrbayev.)

Stephen Silva:

A status conference in the case of Stephen Silva did take place this afternoon in courtroom 25 at 2.30 pm. The defendant had waived his right to attend. Jonathon Shapiro was in court for the defense and Peter Levitt for the prosecution. This hearing was even more sparsely attended than that in the case of Dzhokhar Tsarnaev, with a half dozen journalists and one member of the public being present. Both parties agreed that issues related to discovery in this case are now 98% complete. Silva’s case is now being referred to the district court. The time between now and the first status conference in district court is being excluded from speedy trial requirements. This hearing concluded after 5 minutes.

Some may see this as a routine drugs/illegal firearms case. Is this really so, or are the charges brought against Stephen Silva more a consequence of failure to cooperate with the FBI? Also, it was earlier suggested, (via Michele McPhee), that the Ruger pistol alleged to have been in Silva’s possession was the very same gun as was used in the killing of Officer Shaun Collier. Are they ever going to “connect the dots” ? Could it be, perhaps, that they are unable to do so?

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