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Boston Bombing News: Tsarnaev Pretrial

Thursday, 18th. December saw the final pretrial conference in the case of U.S. v Dzhokhar Tsarnaev  at Moakley Courthouse in Boston. The trial is due to begin the first week of January, 2015. This hearing was scheduled for 10.00 am and the defendant arrived nearly four hours previous, escorted by at least three divisions of law enforcement. This was the first time Dzhokhar Tsarnaev has attended a court hearing since his arraignment in July of 2013.

Judy Clarke, Miriam Conrad and David Bruck were present for the defense, and William Weinreb, Aloke Chakravarty, Nadine Pellegrini and Steven Mellin. Donald Cabell was also in court, as were an assorted contingent of law enforcement and the USDA for the State of Massachusetts, Carmen Ortiz. Judge Goerge O’Toole was, of course, presiding. I only observed one of the victims of the bombings in the courtroom, that being Marc Fucarile, but it is possible that more were present. The courtroom, by contrast to previous status conferences, was packed.

Proceedings:

Judge O’Toole’s first thanked both the defense and the prosecution for their work in this case. He then acknowledged the presence of the defendant in the courtroom and emphasized the fact that this indeed was the first time the defendant had been present in court for over a year.

The judge then asked four questions of the defendant and each time Dzhokhar Tsarnaev answered quietly but clearly with no trace of an accent. O’Toole’s first question was if the defendant was satisfied with his choice not to attend previous hearings in accordance with his attorneys’ advice. Tsarnaev answered “Yes Sir” and responded same when O’Toole asked if the defense attorneys had been in regular contact and had kept Tsarnaev “up to date with the case.” Judge O’Toole’s third question for the defendant was as to whether he believed that his attorneys were acting in his best interests. Dzhokhar Tsarnaev’s response to this was “Yes Sir, very much.” The inflection I detected leads me to believe that this is something the defendant genuinely believes. O’Toole’s final question was as to whether there was anything Tsarnaev would like to discuss privately with the judge and Tsarnaev’s  answer was “No Your Honour.”

David Bruck then requested that it be noted by the court that this final pretrial conference was the first hearing since his arraignment that Dzhokhar Tsarnaev had been asked to attend and that had he been asked to attend any hearings prior to this then he would have happy to do so. Bruck also requested that it be acknowledged by the court that the defendant’s choice not to attend many of the hearings in his case was quite within the norm. The judge agreed.

Motions pending were then addressed. The first to be discussed was the most recent motion filed by the defense to request a hearing to address alleged “leaks” from law enforcement to the media. O’Toole stated his concern but dismissed the most recent alleged “leaks” as actually being information which could have been gleaned from other sources. (As did the prosecution’s motion filed in response to the request for a hearing.)

It was noted that Judge Young had scheduled a hearing for the following afternoon to address alleged “leaks” in the case of Khairullozhon Matanov. (It is now my understanding that Judge Young has now requested information, in Matanov’s case, from both the defense and the prosecution as to who had access to the information which was allegedly “leaked.”) Judge O’Toole indicated that he intended to await the other judge’s decision before making his own decision on this matter. (?)

The defense’s second motion for access to Grand Jury instructions was denied.

The third motion to be addressed was that filed by the prosecution to exclude the testimony of a witness for the defense. This witness, Janet Vogelsang, was described as an expert in bio/psycho/social issues. The prosecution’s objection to this witness were voiced, via William Weinreb, in that the prosecution views this witness’s testimony to be likely to amount to “hearsay” and “family lore” rather than sound fact. David Bruck then disputed this and claimed that Vogelsang would be able to provide an accurate account of his client’s life history and added that the prosecution has already received documentation listing the names of those interviewed by Vogelsang in the course of her research.

Most notable to me, at this point, was David Bruck’s observation that if Janet Vogelsang were indeed required to testify, that this would likely not be until April 2015. Would a trial wherein the defense was based solely on mitigation, (as some here continue to insist will be the case), really be likely to continue into a fourth month?

Judge O’Toole stated that he had been aware of an “ongoing dispute” between the defense and the prosecution in regard to this witness. He declined to rule and advised the court that he intended to rule on all remaining pending motions “on the papers.” (To which we are now accustomed!)

The judge then declined to discuss jury selection issues in open court. Following this he referenced the number of sealed filings in this case  and went on to say that he expected to see sealed motions be unsealed as the trial date approaches. Courtroom logistics and decorum were addressed briefly and upcoming deadlines noted.

At the very end of yesterday’s hearing, just before 10.30 am, David Bruck announced that an additional Motion for a Continuance would be filed shortly and that this would be a result of “new information” received from the government just 48 hours previous to the hearing.

General Observations:

The presence of law enforcement outside the courthouse was, as expected, most prominent.

I am not able to estimate the number of people attending yesterday’s hearing as it is my understanding that the majority, which included some of the media, were obliged to observe proceedings via closed circuit television in an overflow room . (Or rooms?)

A small group of protestors/supporters were assembled outside and to the right of the courthouse.

Elena Teyer attended the hearing and prior to this spoke to those assembled outside the courtroom about the discrepancies in the case of Dzhokhar Tsarnaev and about the harassment and killing of her son-in-law, Ibragim Todashev, at the hands of the FBI in May 2013. After the hearing concluded and as the defendant, Dzhokhar Tsarnaev, was being prepared to leave the courtroom, she raised her voice in  a brief message of support and encouragement for Tsarnaev which led to her being removed from the courtroom. I understand that Elena was not detained and was able to speak to the media and others outside the courthouse.

Dzhokhar Tsarnaev:

Much comment has been made by the media in regard to the physical appearance of Dzhokhar Tsarnaev. Unfortunately, (and as was to be expected), much of this “descriptive comment” is inaccurate. The defendant did not appear to be physically strong and appeared to be considerably underweight. Judy Clarke demonstrated concern for her client and put her hand on his shoulder several times during the status conference. Tsarnaev’s hair was indeed long but did not look “unkempt” as has been stated in the media. Lastly, anyone who had a reasonable view of Dzhokhar Tsarnaev and claims not to have noticed the marked residual effects of his previous injuries must have, in my opinion, very poor eyesight, an agenda, or both.

 

 

 

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