Editor’s note: The following is an account of proceedings in the case of US. v Dzhokhar Tsarnaev on Tuesday, March 31.
Although scheduled for 9.oo am, proceedings actually got underway this morning at 9.16 am after a now customary delay when the defense called their third witness in this case, Mark Spencer.
Mr. Spencer is employed by “Arsenal Consulting” and is an expert in digital forensics and electronic data evaluation. William Fick began questioning by requesting that Spencer outline his vocation related experience and qualifications and it was mentioned that this witness is to be paid by the Federal Public Defender’s Office having put in some hundred hours of work to date. The standard billing rate for Mr. Spencer is $425 per hour but the work he has put into this case will be charged at a slightly discounted rate of $375 per hour. One of Spencer’s coworkers is fluent in Russian language.
This witness stated that he had examined multiple devices owned by the Tsarnaev family, but today’s testimony focused specifically on the HP computer recovered from the Tsarnaev family home located on Norfolk Street in Cambridge, the Samsung laptop owned by Tamerlan Tsarnaev which was recovered from Laurel Street in Watertown, the Sony laptop owned by Dzhokhar Tsarnaev which was recovered from the shared apartment of Azamat Tazhayakov and Dias Kadyrbayev in New Bedford and a hard drive recovered from the Mercedes SUV also in Watertown.
Digital evidence relating to Tamerlan’s trip to Russia in 2012 was briefly discussed and it was mentioned that full copies of an edition of “Inspire” magazine had been downloaded onto both the Samsung and Sony laptops immediately prior to Tamerlan’s departure from Cambridge.
Following this revelation the bulk of Fick’s questions were aimed at illustrating the diffences between the Tsarnaev brother’s online activities and that all that might be considered incriminating could be credited to the elder brother. The most notable information obtained from Spencer’s testimony was that Dzhokhar had made no internet searches related to the Boston Marathon or indeed “bombs” prior to the bombing of that event. Most of Dzhokhar’s online activity comprised of viewing of Facebook, VK and movies. In contrast Tamerlan had made multiple searches on topics such as the Boston Marathon, detonators, fireworks and gun stores in the weeks preceeding the bombing. Instructions on how to make bombs were discovered on Tamerlan’s laptop but not on that of his younger borther.
The conclusion of Spencer’s testimony focused on the hard drive recovered from the Mercedes and Patriot thumb drive. These devices contained some content which might be considered “radical” and included lectures by al Awlaki which had been downloaded over the original content. The original content was comprised of music and homework assignments. Fick was able to establish that Spencer considered Tamerlan to be the most recent user of both the hard drive and the thumb drive and that the thumb drive had latterly been connected to Tamerlan’s Samsung laptop.
Aloke Chakravarty conducted cross examination of this witness for the prosecution. His questioning of Spencer was brief but gained an admission that the electronic devices could have had multiple users and that it was not possible to prove who viewed what on which device. Chakravarty also asked Spencer if he was aware that there are records to suggest that the defendant purchased a computer which has not been found. The defense objected to this line of questioning but this objection was over-ruled by Judge O’Toole. Spencer then responded that he had not been aware of this.
Morning break was at 11.00 am.
At 11.20 am Mark Spencer returned to the witness stand and was questioned once more by William Fick who queried the lack of dates on some of the data. Spencer’s responce was that not all information was stored and that there were occasions when times and dates would be irretrievable. He stated that “the tools are not perfect.” Chakravarty cross examined briefly again extracting affirmation that it could not be proved with certainty which brother had searched and for what at any given time. At this point, Spencer was informed that he could leave the stand.
At 11.35 am, the defense called their fourth witness, Elena Graff, who works for the FBI at their lab in Quantico and is an expert in fingerprint analysis and Timothy Watkins prepared to question. Having elicited from this witness her professional qualifications Watkin’s posed many questions as to whose fingerprints were found on which pieces of evidence. Over eight hundred fingerprints were analyzed in this case and were compared with known prints including those of Tamerlan and Dzhokhar Tsarnaev.
Graff’s testimony was somewhat lengthy and for this reason I will summarize:
Tamerlan Tsarnaev’s fingerprints, (and in some cases palmprints), were found on much of the evidence which was submitted for analysis whereas Dzhokhar’s prints were discovered on very little of this evidence. The older Tsarnaev’s prints were found on evidence recovered from both bomb sites, the lid from one of the pressure cooker bombs, tools recovered from the apartment at Cambridge Street, (which is actually not surprising even if these tools were not used in the manufacure of bombs), several rolls of duct tape and a jar containing nails and metal. His younger brother’s were not. Neither brother’s prints were found on the remnants of a backpack alleged to have contained the bomb which was detonated at “The Forum” restaurant. Both brother’s prints were found on a plastic storage container, (identified by some as the “Tupperware bomb”), and it was stated that two of the prints on this item belonged to Dzhokhar and six to Tamerlan.
During Timothy Watkin’s questioning of this witness, I twice observed Dzhokhar Tsarnaev writing and passing notes to a member of his legal team. These notes were taken to Watkins who paused to read them. Throughout the day the defendant seemed more focused on proceedings than he has appeared to be previously. (With the exception of two previous occasions during testimony of witnesses for the prosecution.) Several jurors appeared to be busily taking notes during this testimony.
William Weinreb’s cross examination of this witness was relatively brief and his main focus was to ascertain that fingerprints are indeed fragile, can easily be removed and that it is possible for an individual to touch an object without leaving a print. Neither the defense nor the prosecution had any further questions for Ms. Graff.
At 12.30 pm, Judy Clarke stood up and announced that the defense had called their last witness during this phase of the trial but added that she would now like to show the court and the jury a series of photographs. William Weinreb stood up immediately to object loudly.
A “brief” recess was immediately ordered by the judge and judge, jury and both legal teams left the courtroom.
By 12.50 pm the defense were back in the courtroom to be followed, five minutes later by the prosecution, judge and jury. A five minute sidebar was then followed by the judge’s announcement of an hour’s break for lunch.
Proceedings after lunch were as follows:
At 2.00 pm there was a fifteen minute delay to be followed by a five minute sidebar. At 2.20 pm the judge called for a fifteen minute recess which was followed by yet another sidebar. The jury re-entered the courtroom at 2.50 pm and Judy Clarke stood to announce that the defense would now rest their case and that no photographs would be shown. Following this it was stipulated that “the victim of offense count seven was a foreign national and not a US citizen.” (This reference was to bombing victim Lingzi Lu.) Judge O’Toole then informed the court that closing arguments will take place on Monday, 6th. March followed by jury deliberations. This was followed by another brief sidebar and court was adjourned at 3.00pm.
We can but speculate what the photographs Judy Clarke had intended to show the court might depict? Whatever the answer may be it is obvious that it was important to the prosecution that these photographs not be shown. At least two hours were spent negotiating this issue and however it was resolved the defense seemed very happy with the outcome. The prosecution? Not so much…
Update: News is that the prosecution seek to add another to their team – Connecticut AUSA Tracy Dayton.
Photo from VOA News and as such is government work in the public domain for reuse.