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.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

January 9, 2015

Friday, January 9, 2014

Good afternoon:

The first 1200 people summoned for jury service in the Boston Marathon Bombing Case have completed the 28 page juror questionnaire. Prosecution and defense counsel will be busy this weekend reviewing the questionnaires in preparation for voir dire that will start Monday. I believe we can reasonably expect Judge O’Toole will excuse about half of the group for financial hardship due to the length of the trial that is expected to extend into June. Students, teachers, self-employed business owners, single parents with young children and people with prepaid vacations are typically excused.

Several people have asked me to explain coconspirator and accomplice liability under federal law. State prosecutors rarely charge people with conspiracy, so most people don’t know much about it.

A conspiracy is an agreement by two or more people to commit a specific crime and the commission of an overt act by one of them in furtherance of the conspiracy. Often, the overt act is a crime, but it does not have to be. For example, purchasing fireworks is not a crime if you are old enough, but it could be an overt act in furtherance of a conspiracy to build a bomb using the gunpowder in the fireworks. Indeed, overt act 19 alleges that Tamerlan Tsarnaev traveled to Phantom Fireworks in Seabrook, New Hampshire on or about February 6, 2013, where he purchased 48 mortars containing about 8 pounds of low grade gunpowder for use in furtherance of the conspiracy charged in Count 1 (conspiracy to use a weapon of mass destruction resulting in death).

A member of a conspiracy is responsible for all crimes committed by other members of the conspiracy, even if he did not know that the person who committed the crime was a member of the conspiracy or that he was going to commit that crime, so long as it was reasonably foreseeable that some member of the conspiracy would commit that crime.

Mere knowledge of the existence of a conspiracy, or presence at a location where a crime is committed by a member of the conspiracy, is not sufficient to establish guilt and there is no affirmative duty to inform police about the conspiracy.

Federal prosecutors typically structure indictments by charging a conspiracy to commit a specific crime in count 1 and allege any number of overt acts committed in furtherance of the conspiracy alleged in that count. Every member of the alleged conspiracy is accused of committing at least one of the overt acts. Overt acts that constitute crimes are added as separate counts in the indictment.

For example, in Overt Act 31 of Count I, Dzhokhar Tsarnaev is accused of killing MIT Police Officer Sean Collier by shooting him in the head at close range with a Ruger 9mm P95 semiautomatic handgun and attempting to steal his service weapon.

In Count 16 he is charged with possessing and using a firearm during the course of the conspiracy to murder Officer Sean Collier.

The government’s theory regarding the purpose for this shooting is that the Tsarnaev brothers only had one gun (Tamerlan’s Ruger 9mm P95 semiautomatic) and they wanted to obtain a second gun for Dzhokhar, so they sneaked up on him while he was sitting in his patrol vehicle and Tamerlan executed him with a single shot to the head. However, they were unable to get the gun out of the holster.

The government will argue that Dzhokhar is legally responsible for that shooting, even though he did not shoot the officer, because he was a member of the conspiracy and the shooting was an overt act committed by Tamerlan in furtherance of the conspiracy.

The government has a second argument to hold Dzhokhar accountable for the murder based 18 USC 2(a), which provides in pertinent part:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

This is the federal accomplice liability statute by which someone who assists another to commit a crime is as responsible as the person who committed the crime.

I hope this explanation helps readers to understand coconspirator and accomplice liability under federal law.

If we assume for the sake of argument that Dzhokhar Tsarnaev will be convicted on all counts on the basis of his own acts and on the basis of coconspirator and accomplice liability for acts committed by Tamerlan, that does not mean that his arguably lesser role would not result in an LWOP sentence instead of death. A lesser role is a mitigation factor as are his youth and subservient relationship to his brother.

I believe this case probably will boil down to whether one or more members of the jury decide that the evidence in support of those three factors merits an LWOP sentence. That is why I have stated that this case is not about winning or losing. It’s about living or dying.


Ibragim Todashev may have been unarmed when killed by FBI agent

May 30, 2013

USA Today is reporting that 27-year-old Ibragim Todashev may have been unarmed when he was shot and killed by an FBI agent in Orlando on May 22nd.

Todashev’s father Abdul-Baki Todashev told the the Moscow media that his son had multiple gunshot wounds to his torso and one to the back of his head. The elder Todashev also displayed photos he claimed were of his son’s body in a Florida morgue, according to AP.

Ibragim Todashev was the ethnic Chechen whom the FBI were interrogating regarding his association with Tamerlan Tsarnaev, the late Boston Marathon bombing suspect. Todashev was also a suspect in a triple homicide in Massachusetts two years ago.

The early reports that I read said Todashev was shot because he pulled a knife on an FBI agent.

The USA Today story quotes unnamed sources that Todashev had overturned a table but was unarmed when shot.

The Florida branch of the Council on American-Islamic Relations has called for a federal civil rights investigation into Todashev’s death.

“We have confirmed through senior sources within the FBI that Ibragim was indeed unarmed when he was shot seven times in the head, what appear to be even in the back of the head,” said Hassan Shibly, executive director of the CAIR Florida. “That’s very disturbing.”


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