In the last Boston Bombing News, jane24 reported from the 9th status conference. A central issue at the hearing was the disclosure of witness lists. The prosecution demanded to get a list of non-expert defense witnesses prior to the trial. In a previous exchange of motions, the defense attourneys had made it clear that they didn’t intend to reveal their witnesses before they were needed at trial. They argued that they were not obliged to do so in capital cases and expressed their concerns that the FBI would “descend” on the prematurely exposed witnesses and intimidate them, which would cause them to cancel their readiness to testify for the defense.

In a response to this motion (Doc 648), the government wrote:

Overheated rhetoric such as this cannot substitute for actual facts and sound legal argument. There is no evidence of witness intimidation in this case. Securing the voluntary cooperation of witnesses can be a challenge for both parties; many victims of the Marathon bombings, for example, are afraid, if not unwilling, to testify against the man accused of dismembering or traumatizing them in a terrorist attack. Tsarnaev, however, has adequate tools, including subpoena power, to obtain the testimony of witnesses whom he wishes to call at trial.

It appears from this quote that the prosecution knows of “many” victims who are capable of contributing valuable informations incriminating Tsarnaev. The term “victims” indicates a reference to the second bomb site. The witnesses might remember to have seen him at the Forum – which is no proof of guilt of course – or they might testify that the bomb exploded at the metal barriers, the location where he dropped his allegedly explosive backpack.

I have stressed in several blog entries that the exact location of the epicenter is probably the most decisive question in the trial, and that numerous witness statements strongly suggest that the epicenter was not at the place where Dzhokhar put his bag down. It is highly likely that the defense has contacted some of these – and probably more, yet unknown – witnesses and asked them where the bomb exploded. The identity of some of them is not known to the FBI, and the defense obviously wants to keep it like that until their testimony at the trial.

Judge O’Toole thwarted these plans by ordering the defense to disclose their witness list to the prosecution on December 29th, 2014, one week before trial start. This caused, according to Jane, a certain consternation to Judy Clarke and her team. Jane expects further defense motions on this matter.

So the timing of the disclosing of the witnesses has apparently a huge strategic value, it is a tough struggle, and any notions that these witnesses are related to the penalty phase, for mitigation purposes only, is utterly naive. Because of this stategic importance, we should expect the defense to present witnesses during the trial who were not on the initial list, with the risk to be repelled by the judge. However, Mr. O’Tooles one-sided ruling already offers many approaches to appeal, and repelling important witnesses might add to that.

What happens if there are conflicting accounts by prosecution vs. defense witnesses? It is hard to imagine that this will not lead to a giant uproar in Boston and elsewhere. The mere possibility that Dzokhar Tsarnaev might have been set up – as his mother said from the beginning – could not be dismissed as a conspiracy theory anymore. The exact occurrences at the Forum would come under close public scrutiny for the first time since April 15, 2013. This would not work out well for the prosecution. So if the defense has some reliable eyewitnesses, they are well forearmed against any dirty tricks the prosecution might deploy.