Next Wednesday, March 4, the hot phase of the Tsarnaev trial is scheduled to start, and after the defense’s last-minute efforts to achieve a change of venue due to massive prejudice of the coming jury were rebuffed by the appeals court there is little doubt that the opening statements of both parties will be held in front of the jury on this day.
After twenty months of mostly technical and procedural discussions on several pretrial hearings, this will be the first time since the indictment in June 2013 that actual evidence for Dzhokhar Tsarnaev’s alleged perpretation will be presented to the public. Because of a gigantic media campaign especially around the first anniversary most people have come to believe that this evidence is already solid and abundant: a slam-dunk case. But those who have followed independent Internet sources (like this one) know that despite the mainstream media hype there is no such thing like solid evidence. In other words: the prosecution didn’t make their case.
The indictment consists of 30 points. 15 point are related to the actual Marathon bombing, 3 to the murder of Sean Collier, and 12 to the car hijacking/Watertown shooting complex. The high number results from a broad overlapping of the single points; so essentially, we have only three accusations.
With regard to the Collier complex and the Watertown complex, other websites have persuasively outlined the poor evidence and many inherent contradictions of the official story. I will therefore restrain myself to the Marathon bombing which has been in my focus for nearly two years now. For newbies, take a look at my blog since April 23, 2013.
With regard to the evidence that Dzhokhar Tsarnaev planted the second pressure cooker bomb, the indictment falls back behind the criminal complaint from April 22, 2013. And the criminal complaint bases its accusation almost exclusively on the so-called Forum video. Apart from two stills, we only have verbal descriptions of the video so far which fall short of explicitly stating that it shows Dzhokhar’s bag exploding; instead the complaint says that he dropped his bag at the location where the bomb exploded later. This blurry description leaves room for the possibility that the bag was not the pressure cooker bomb, but only being in the vicinity.
The prosecution will, in all likelihood, cite the Forum video as primary evidence. It will be interesting to see if they will announce eyewitnesses for Dzohkhar’s bag being the bomb. Some people’s claims that the explosion occurred exactly where the bag was have turned out to be unreliable and contradictory. I expect the prosecution’s list of eyewitnesses for the epicenter of the bomb to be very slim. The prosecution has already hinted that some survivors/eyewitnesses are reluctant to testify in order to avoid a painful revival of the traumatic event – which might be true, but could also be an excuse for not being able to present a witness. We’ll see.
The prosecution will certainly also announce to present details of the bombs and how they were made, remnants of the pressure cooker, shrapnel and other physical proof for their deadly nature. And they might cite the autopsy photos of the deceased three victims of the bombings. All of this evidence will however only prove that there were pressure cooker bombs, not who actually placed it.
It will also be interesting to see how the prosecution will handle the discrepancy between the claim in the indictment that the pressure cookers were hidden inside black backpacks whereas Dzhokhar, according to the well-known video footage from Boylston Street, was carrying a light-colored knapsack. I expect them to ignore this embarassing point until the defense brings up the subject.
The defense is well-advised to be flexible and reactive to the prosecution’s pleading. If the prosecution, for example, avoids to clarify where exactly the second bomb exploded, it might be favorable to them to not lay down all their cards (i.e. eyewitnesses pro Tsarnaev) on the table and confine themselves to something indeterminate like “we will throw doubts on the hypothesis that Tsarnaev’s bag was at the location where the bomb exploded”. If the prosecution explicitly states that the bomb exploded at the mailbox (where Dzhokhar left his bag behind), it might be favorable to explicitly state that the bomb exploded on the patio, 15 feet away.
It is my firm conviction that the many eyewitnesses of the second explosion, and especially the injured survivors, will be a big trump for the defense, probably the biggest. Whether they will play it on Wednesday already remains to be seen. Another trump is the already mentioned black nylon backpack/light-colored knapsack discrepancy. It might well be that Dzhokhar told his lawyers the brand and type of his knapsack and where he bought it. This would have enabled them to buy one and check out if it’s even possible to stow a pressure cooker in this particular bag, and if so, if the resulting bulge matches the video footage.
Finally, the defense will probably thematize the nature of the bombs itselves. Did the firework powder that the Tsarnaevs purchased have enough power to cause the destruction and injuries of the Boston bombs? Probably not – and they will announce to summon experts for this question. Did the Tsarnaevs build the bombs by themselves or with professional help? The defense will highlight the conflicting stories in the media. And how exactly were the bombs detonated? The indictment claims that Dzhokhar himself detonated the second bomb – but without elaborating how he did it. The defense will possibly cite experts for this technical problem, too.
This is my preview for Wednesday. Look at it as kind of a check list – and apologies if some forecasts are wrong, which will certainly be the case. But certainly some of the forecasts will be confirmed.