Jahar Tsarnaev finally cries in court today

May 4, 2015

Jahar Tsarnaev finally displayed emotion in court today when his Aunt Patimat Suleimanova took the stand to testify on his behalf in the penalty phase. She is his mother’s older sister. As soon as she took the stand, she began hyperventilating and sobbing hysterically. She was unable to speak and had to be excused. As she left the witness stand, Jahar began to cry. That is the first time during the trial that he has displayed any emotion.

Today was devoted to family witnesses who traveled from Russia to testify on his behalf. We learned a lot about his parents, particularly the change his mother, Zubeidat, went through after she transformed into a Muslim fundamentalist who cast aside her jewelry and wardrobe of colorful clothes and started wearing the hijab. Unfortunately, none of the witnesses have had any contact with Jahar since he was 8-years-old. They described a happy and beautiful boy whom everyone loved.

The defense also elicited evidence that the eldest brother in Chechnya culture occupies a position of authority in family life relative to the siblings and this would have been true in the Tsarnaev family. Jahar has been described by a female college friend as a follower and not a group decision maker.

Difficult to tell how this testimony affected the jury.

I was touched today by this statement from Becki Norris, one of Jahar’s teachers.

“I have discovered the painful truth that when you care deeply for someone, that does not stop even when he does unfathomably horrible things.”

Her statement perfectly captures today’s testimony.


Tsarnaev, prosecution blood lust and the death penalty

April 1, 2015

I am opposed to the death penalty in all cases, no matter how egregious. I always have been. I oppose the death penalty for many reasons. Today, I’m going to talk about one of them with which most readers may be unfamiliar.

Trying a death case changes people, particularly prosecutors, and not for the better. I’m talking about prosecution blood lust and the desire to kill. Desire to kill the defendant, my client. The human being whose life I am desperately trying to save. I’ve seen prosecutors cheat to win by concealing exculpatory evidence and cutting secret deals with jailhouse snitches to reward them for falsely claiming that my client confessed to a murder he did not commit. I saw it on Monday morning when the prosecution attempted to bury Dzhokhar Tsarnaev beneath a mountain of blood soaked garments and ghastly autopsy photographs.

The prosecution went too far. The desire to arouse and inflame the passions of the jurors to kill Dzhokhar Tsarnaev prevailed over reason. The defense had admitted that Dzhokhar Tsarnaev had committed the crimes charged. The prosecution did not need to literally wave Martin Richard’s bloody, sooty and melted clothes in front of the jury, but they did.

Rule 403 of the Federal Rules of Evidence (FRE) requires the trial judge to weigh the probative value of the evidence against its prejudicial value. When the prejudicial value substantially outweighs the probative value, the judge should exclude the evidence. Judge O’Toole admitted all of it and it was unnecessary.

The ruling is discretionary and will not be disturbed on appeal unless the judge manifestly abused his discretion.

In deciding whether a trial judge manifestly abused his discretion by admitting gory and grisly evidence, an appellate court will consider whether the evidence likely affected the verdict. That is, whether the verdict would have been different but for the evidence.

I think the answer is the error likely will not affect the verdict in the guilt/innocence phase. But I cannot confidently say that about a death verdict in the penalty phase.

I think this is another example of Judge O’Toole navigating perilously close to reversible error.

Just because the government has a slam dunk case does not mean that the court can ignore the rules of evidence on the ground that any error is necessarily harmless.

The government should not be permitted to strip the defendant naked and flog him in front of the jury.

That is what basically happened on Monday and it was wrong.

For more information on what happened Monday, please read my article, Tsarnaev: Government rests after presenting graphic and disturbing autopsy evidence.


Tsarnaevs: Why did they murder the innocent?

March 27, 2015

Dzhokhar Tsarnaev wrote a note in pencil on an interior wall of a trailered boat in which sought refuge after the Watertown shootout. He attempted to justify killing innocent people with the following words,

“The U.S. Government is killing our innocent civilians but most of you already know that. As a M [bullet hole] I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all. …”

“Now I don’t like killing innocent people it is forbidden in Islam but due to said [bullet hole] it is allowed.”

He is wrong. The Prophet, whom he revers, prohibited killing the innocent.

From the Islamic Supreme Council of America:

The Prophet sent the following message to his military leaders who were setting forth in the way of Jihād to stop hostile advances and defend Muslim territories:

Advance in the name of Allah, with Allah, on the pattern of the Messenger of Allah . That means do not kill the elderly, infants or children and women. Do not exceed the proper bounds. Gather your spoils and make peace, “and do good. Lo! Allah loveth those who do good.”

The Prophet passed by a woman who was killed and said, “She was not engaged in fighting.” The Prophet then sent to the Muslim leader Khālid ibn al-Walīd the following message, “The Prophet orders you not to kill women or servants.”

This was to show the reason in the prohibition of killing her was due to the fact she was not with the fighters. The inference here is “the reason we fight them, is because they fight us, not on the simple principle that they are disbelievers.” This is clear evidence the woman was not a fighter and the Prophet prohibited her killing. From the strong expression the Prophet made, going so far as to send a letter to his topmost military commander, we see how concerned he was to prevent any such incidents, and to insure that every single Muslim warrior was aware of the rules of combat.

The question arises here: when someone explodes a bomb or commits a suicide attack in a public place, how many innocent women, children and elderly people are killed? If for one woman’s death, the Prophet scolded his top general, Khālid ibn al-Walīd, what then about killing twenty, thirty or even hundreds of non-combatants, some of whom may even be Muslim?

Just as the Messenger of Allah forbade the killing of women and the young he forbade killing priests.

The first caliph Sayyidina Abū Bakr aš-Šiddīq’s commandment to the leader of the first Islamic military expedition after the Prophet was:

…No hermit should be molested…Only those should be killed who take up arms against you.

So we see from these various narrations of the Prophet ―and there are many more like them―that the Prophet prohibited the Muslims to fight anyone, Muslim or non-Muslim, even if they are unbelievers, if they are not transgressors against the security of the nation.

This shows that terrorist acts, in particular suicide attacks which kill indiscriminately, are utterly unacceptable forms of combat, even during valid combat authorized for defense of the nation.

Dzhokhar Tsarnaev needs to come to an understanding that his God, whom he calls Allah, does not approve of what he and his brother did. He has an opportunity in this lifetime to atone for what he did, but he is running out of time. A good place to start is the penalty phase of his trial.

With not just his life, but his soul at stake, he must reject self-deception, own what he did and admit that it was wrong. His actions and his note are offensive to his God and he must admit that too and plead for mercy.

The prosecution will likely rest on Monday after the Medical Examiner, Dr. Jennifer Hammers, concludes her testimony about the deaths of Lu Lingzi, a graduate student from China and the child, 8-year-old Martin Richard. Court recessed yesterday for the weekend after Dr. Hammers concluded her graphic testimony about the death of Krystle Campbell, a restaurant manager from Medford, MA.

I am going to pray for him to find the light while there is still time.

I am also going to pray for the jurors because, despite the law that permits them to sentence him to death, no human should kill another.

Let us all pray for the victims whose lives changed forever the day the bombs exploded. May they find peace in this lifetime.


Tsarnaev: Terrorism expert links Tsarnaev’s message in the boat to al Qaeda produced files on Tsarnaev’s computer

March 24, 2015

The prosecution entered the homestretch of its case today against Dzhokhar Tsarnaev by calling Dr. Matthew Levitt to the stand. Levitt, who claims to be an expert on Islamist terrorism, is a senior fellow and director of the Stein Program on counterterrorism and intelligence at the Washington Institute for Near East Policy. He also is a professor and lecturer in International Relations and Strategic Studies at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University.

Dr. Levitt testified that al Qaeda initially encouraged people to travel to the mideast and join their organization to fight U.S. oppression of Muslims. Later, they reached out to those who could not travel to the mideast and encouraged them to join the cause by fighting at home. Death in service to Allah and Islam is good, if you do your jihad with “true intention” to get entry into highest levels of heaven, according to Anwar al Awlaki.

An example of fighting at home is provided by an article in Inspire, which had been downloaded to Dzhokhar Tsarnaev’s computer. The article provides instructions on how to make a bomb out of ordinary stuff in your mother’s kitchen. They detail how to build a pressure cooker bomb just like the ones the Tsarnaev brothers used.

Dr. Levitt also reviewed and sourced the statements that Dzhokhar Tsarnaev wrote on the wall of the boat to al Qaeda produced documents and audio files on his computer. Court recessed for the day before Dr. Levitt completed his testimony sourcing Tsarnaev’s note.

Not a good day for the defense.

Nevertheless, serious questions exist about the legitimacy of so-called terrorism experts, as this article in Salon explains.

Dr. Levitt finished testifying this morning. He admitted that someone could have put the content on his devices and also have harangued him and contributed to his radicalization.

That person would have been his brother, Tamerlan.

The cross of Dr. Levitt by David Bruck made these points that are relevant to Dzhokhar’s lesser role in the offense.

Bruck: you said there always has to be a “radicalizer” who encourages someone?

Levitt: yes, often a virtual one, online.

B: You weren’t asked to find a radicalizer in this case?

L: No.

B: You analyzed only the info you were given from #Tsarnaev’s drives? L: Yes

Bruck: your understanding was that you were to focus on the defendant and no one else?

Levitt: He’s the one on trial.


Riveting testimony in the Boston Marathon bombing trial hurts Dzhokhar’s chance to avoid death penalty

March 13, 2015

During the past two days, the prosecution presented evidence about the murder of MIT police officer Sean Collier and the kidnapping of Dun Meng, a Chinese businessman, and his Mercedes vehicle by the Tsarnaev brothers.

The Boston Globe reports,

Dr. Renee Robinson, a state medical examiner, told jurors that the 26-year-old Collier was shot three times in the head, including once between the eyes, and three times in the hand, and he would have died instantly. Robinson said the shots were fired at close range, at least one with the muzzle pressed against his skin, based on the pattern of the bullet’s entry wound.

Two people were captured on campus security video approaching Collier’s vehicle from behind after he pulled over and stopped. They are visible leaving the scene from the same direction that they approached. The apparent motive for the murder was to steal his gun, but they were unsuccessful because it was locked in his holster. Police discovered that the holster had been damaged in an apparent effort to remove the gun.

Dun Meng, the Chinese businessman, testified about his encounter and escape from the Tsarnaevs. Here’s the Globe again,

Sitting at the edge of his seat, he described how he took several turns, and pulled his car to the side of the road on Brighton Avenue to send a text message to a friend. Suddenly, a sedan pulled up behind him quickly. A man stepped out of the passenger side of the car, approached his passenger side window and tapped. He asked him to lower the window. Deng thought he was going to ask for directions, but the man instead reached inside and opened the door, stepping inside his car.
“He pulled the gun to me, to my head,” Meng told jurors, describing how he thought he was being robbed. The man pulled out his magazine, to show he had bullets.

“I’m serious, don’t be stupid,” the man told him.

Then he said, “Do you know the Boston Marathon explosions? I did it, and I just killed a police officer in Cambridge.”

Meng identified Tamerlan Tsarnaev as the man with the gun. Dzhokhar Tsarnaev was following behind them in a green Honda. He eventually parked the car and joined them sitting in the back seat behind Meng. Dzhokhar used Meng’s ATM card to withdraw $800. Meng escaped when they stopped at a Shell station for gas while Dzhokhar went inside to pay for the gas and Tamerlan was distracted fiddling with a GPS device.

Meng unbuckled his seatbelt with one hand and unlocked and opened the door with his other hand. He tumbled out onto the ground and took off in a crouching sprint across the street to a Mobil station where he called 911.

Police were able to find the Mercedes because it was equipped with a sophisticated GPS positioning system that located it precisely. The shootout ensued.

So far the evidence has shown Dzhokhar to be a willing participant and that is going to hurt his chance to beat the death penalty.


%d bloggers like this: