(The following is my account of my observations and perceptions having attended the eighth day, (Thursday, 7th. May), in the penalty phase of trial in the case of U.S. v. Dzhokhar Tsarnaev.)
Proceedings in the courtroom today were once again subject to a lengthy delay while both the defense and prosecution teams met with Judge O’Toole in his chambers. At the time of writing the matters under discussion during this meeting remain unconfirmed but there has been much speculation that dialogue may have been concerning:
a) The prosecution’s objections to the prospect of Sister Prejean, (a well known and long time opponent of the death penalty), taking the stand as a witness for the defense.
b) The government’s threats to introduce allegedly “defiant” notes which were, (allegedly), written by Dzhokhar Tsarnaev whilst he was hospitalized and recovering from multiple gunshot wounds following his capture in April, 2013. (The government apparently wish to introduce these notes in retaliation for the defense’s introduction of testimony showing Tsarnaev’s now infamous “hand gesture” to be far less meaningful than the government attempted to project.)
Of course, there may also have been other matters for discussion this morning…
When judge, jury, legal teams and the defendant returned to the courtroom testimony picked up where it left off the previous day. On Wednesday the defense called their forty third witness, Mark Bezy, who is now retired after a career exceeding twenty years with the Federal Bureau of Prisons. Bezy was at one time warden at Terre Haute, (death row), in Indiana and also worked at the Supermax at Marrion, Illinois prior to this facility being replaced by ADX in Colorado.
Yesterday afternoon Tsarnaev’s defense extracted testimony from this witness which served to illustrate the very secure but shockingly inhumane conditions encountered by inmates at ADX. It seems obvious that the defense’s objective in obtaining such testimony is to avert the death penalty by convincing the death penalty “qualified” jury, (aka a jury whose members have indicated that they approve state sponsored murder), that LWOP would a harsher penalty than execution. (Or, as David Bruck phrased it in his opening statement, an “appropriate” penalty.)
By contrast, the prosecution, in their desperation to secure Tsaranaev’s execution, have sought, under cross examination, to portray ADX, (once held up to be an example of the ultimate in security), as inadequate and having many failings. The prosecution intimate that a facility such as ADX is in no way up to the job of protecting the American public from the evil of one such as Dzhokhar Tsarnaev. (This, despite the fact that “H” block at ADX houses multiple inmates convicted of crimes which constitute “terrorism.”)
This morning, Steve Mellin, for the prosecution, did his best to portray Bezy as having little knowledge of Special Administrative Measures, (SAMs), and made much of Bezy’s admission that none of the fourteen cases in which he has testified prior to this involved SAMs and that during Bezy’stime at Marrion SAMs were not even in existence. Despite previous acknowledgement that the U.S. Attorney, (Loretta Lynch), and the Massachusetts USDA, (Carmen Ortiz), would have considerable input as to the conditions of Tsarnaev’s incarceration, Mellin continued to reference the Federal Bureau of Prisons, (BOP), and the Bureau’s scope in controlling conditions of incarceration.
Bezy was questioned on his discussions on SAMs with FBI agents involved in the implementation of these restrictions and as to if he was aware of the number of times violations of the SAMs had been attempted. Although Bezy was unable to specify an exact figure he did remark dryly that thwarted attempts were no risk to security.
At this point Mellin reminded Bezy of Lynne Stewart, (a defense attorney convicted of violating SAMs), and stressed that any communications from a convicted “terrorist”, even those deemed “legal” could pose a security risk. Mellin expressed great concern that communications between an inmate under SAMs and that inmate’s appointed attorney, despite being x-rayed and visually inspected by BOP staff, are not usually read by BOP staff.
Another matter which is of concern to the government is the process by which inmates at ADX, (and most specifically the maximum security
“H” block), can seek to alleviate some conditions of their incarceration and even earn “privileges.” (“Privileges” in “H” block amount to an extra fifteen minute phone call in addition to the one usually permitted, an extra hour in the “rec cage” and perhaps even being allowed to walk to the shower unescorted.) Bezy admitted that it had been possible for some inmates to “phase out” of “H” block by means of a three step program and that some had even been transferred to other prisons but stressed that this was not a possibility for all inmates and that much depended on the crime of which an inmate was convicted. (It was mentioned that Terry Nichols is housed in “H” block at ADX and has no likelihood of ever leaving that sector.)
Mellin’s line of questioning then returned to the living conditions experienced by inmates at ADX. We learned that these inmates are actually provided with a foam mattress to place on top of their concrete bunk and sometimes even a blanket! Some inmates are afforded the luxury of a small television. (Via which they may view religious services or “educational” videos.)
Mellin’s questioning of this witness had, up until this point, been a little disjointed but became positively bizarre when Exhibit 3253, an aerial photograph of ADX, and previously shown by defense attorney David Bruck appeared on the screen. This photograph had been taken after snowfall and Mellin questioned Bezy about the frequency of snowfall in this area, (?), asked Bezy to point out several cities located in Colorado and questioned him about the route he hook to visit the ADX facility. Bezy was unable to answer most of these questions and protested that he did not live in Colorado and was not familiar with this state’s geography. His response to questions on his travel to ADX was that “when you fly on the government’s dime you only get to take certain routes.” Mark Bezy seemed irritated by this line of questioning and it’s relevance, (if there was any?), was completely lost to me.
Mellin’s questioning then quickly spanned inmate communications, (via the plumbing and “kites”), the fact that inmates have been known to
write books and that inmates can and do file lawsuits in an effort to improve their conditions of incarceration. (Bezy was obliged to admit
that he is named in such a law suit at this time.)
David Bruck took over to briefly question his witness on the protocol for renewing SAMs on an annual basis and was able to elicit confirmation
from Bezy that at no time have SAMs been removed because the government “forgot” to renew these measures. Bezy also confirmed for Bruck that the likelihood for most inmates of “H” block to achieve transfers elsewhere was negligible. Finally Bruck asked Bezy to confirm that SAMs have never been removed having been challenged in court.
The prosecution returned to cross examine and requested that Bezy state the exact number of those who have transferred out of ADX but he
was unable to confirm an exact number. Mark Bezy left the witness stand at 11.45 am.
Prior to calling for a “short” morning recess, Judge O’Toole advised the jury that they may not consider the cost of the penalties they are to deliberate on and that it would be “Inappropriate” for them to do so.
The “short” morning recess lasted for one and a quarter hours. Just after 1.00 pm the court reassembled and the judge apologized for the
delay citing “issues we are working on.” Instead of scheduling a lunch break, as most expected, O’Toole announced that proceedings
were done for the day and for the week and that proceedings would continue on Monday of next week. (When the defense are expected
to call at least one, and possibly two more witnesses. Is a “surprise” witness possible?)
During today’s brief session in the courtroom, Mark Bezy, the only witness to testify today, frequently became visibly irritated with Steve
Mellin’s aggressive questioning and frequently mocking tone. Dzhokhar Tsarnaev, though appearing to be a little subdued upon first
entering the courtroom, soon seemed very much engaged in proceedings and was observed speaking with his defense attorney, Miriam Conrad, frequently. Tsarnaev’s defense raised frequent objections to the line of questioning adopted by the prosecution but were over-ruled in all but two instances which dealt with speculation regarding inmates being transferred out of ADX Florence and minutae concerning conditions within this facility.
Next week we may look forward to the continuance of these obscene proceedings in which the government seek to kill and the defense
has been forced to advocate for a penalty which the UN and others regard as torture at a facility described by a former warden as “a
clean version of hell.”
Finally I would ask, why are the government so intent on executing Dzhokhar Tsarnaev? Do they believe he is too “dangerous” to be spared
because he is a danger to the public, or, (more likely in my opinion), because he knows something which could cause the United States
Government great embarrassment?