First Do No Harm

Friday, December 26, 2014

Good evening:

First, do no harm.

The death penalty trial of Dzhokhar Tsarnaev is scheduled to begin in federal court in Boston on Monday, January 5, 2015. This is the so-called Boston Marathon Bomber case (BMB). I say “is scheduled to begin” because the defense has requested (1) a change of venue due to prejudicial pretrial publicity and (2) a continuance of the trial date until next September to review voluminous discovery that the government recently disclosed to the defense. You can reasonably expect both motions will be denied because the jury summons have already been sent out.

Both motions were filed to protect the record should Tsarnaev be convicted and appeal. For example, if he were convicted and his lawyers had not filed these motions, he would be barred from claiming on appeal that he was denied a fair trial due to prejudicial pretrial publicity and being forced to trial in January when his lawyers were not prepared.

Although both motions were previously raised and denied in September, it’s not unusual for them to be refiled because community prejudice toward a defendant can change over time as can the necessity for a continuance when discovery is provided to the defense at the last minute.

The Boston Globe describes the defense motion for a continuance,

Just last week, prosecutors turned over a witness list with more than 730 names, and identified 1,238 exhibits and 413 digital files that could be used as evidence, the defense lawyers complained. The government provided a trove of other digital records, the lawyers said.

“To commence trial as scheduled on Jan. 5 would threaten both the fairness and finality of the proceedings,” the defense team argued. They have asked that the case be postponed until September.

“It [is] impossible for the defense to digest this information, much less attempt to pursue investigative leads it may suggest, in time to make effective use of it at trial.”

The Boston Herald reports the government’s response,

Prosecutors in the Boston Marathon bombing case called accused terrorist Dzhokhar Tsarnaev’s renewed push for a delay in the Jan. 5 trial just more complaints from a defendant who faces the death penalty.

In a Christmas Eve filing, federal prosecutors said a long list of law enforcement investigators ready to take the stand is not unexpected.

“Tsarnaev can hardly have been surprised by a witness list containing a large number of evidence-handling witnesses,” the U.S. Attorney’s Office in Boston wrote in a motion fighting any delay.

“In responding to Tsarnaev’s continuing requests for information, the vast bulk of which is not required by the rules of discovery, the government has gone over and above anything the law requires,” prosecutors added. “Tsarnaev continues to complain about the volume of case-related information provided by the government even as he demands more and more of it.

Welcome to trial by ambush. This is how they do you in federal court. A defense lawyer can’t survive there unless he or she can read extremely fast and recall everything while going without sleep for days. The pressure to be perfect is enormous because any mistake, no matter how minor, could be the difference between the client living or dying.

First, do no harm.

The defense also filed an extremely unusual motion worth noting and discussing. They titled it, Motion to Protect Defendant from Prejudicial Effects of “Supporters” Demonstrations at Courthouse. I have never seen or heard of a motion like this. Most defendants in death penalty cases don’t have many supporters. They come and go quietly.

The defense team apparently is concerned about the following incident and they do not want prospective jurors exposed to similar incidents.

Shortly before the beginning of the final pretrial conference in his case on December 18, 2014, in the immediate vicinity of the courthouse, a group of demonstrators claiming to be “supporters” of the defendant were involved in a confrontation with members of the public, including a man who was severely injured by a bomb at the Boston Marathon on April 15, 2013. The demonstrators held signs and shouted statements to the effect, among other things, that the bombing and the survivors’ injuries were staged. Two news reports described the scene as follows:

His supporters, who claim Tsarnaev was set up and is actually innocent, massed outside the court building armed with provocative signs. Two women caught the eye of marathon bombing survivor Marc Fucarile, who limped by with a cane needed after he lost his right leg in the carnage. “That’s trickery?” Fucarile fumed as he lifted his prosthetic leg to show the damage Tsarnaev is accused of doing to score of innocents.

I think the word ‘aghast’ probably captures the defense reaction.

God only knows how many prospective jurors heard about this incident or read about it on social media. Judge O’Toole, to whom this case is preassigned, and counsel are going to have to voir dire (question) prospective jurors about it without actually mentioning it, just in case they do not already know about it. Better not to tell them about it, if they don’t already know. Jurors should be questioned individually out of the presence of other prospective jurors. That way their answers will not poison others.

Defense counsel expressed their concern as follows:

The continuing presence in the immediate vicinity of the courthouse entranceways of demonstrators–including those who gather to challenge as fabricated the injuries suffered by the survivors as they attempt to attend the proceedings–poses a grave threat to the fairness of the defendant’s trial. Beginning on January 5, prospective jurors and witnesses will be required to enter the courthouse through the same entranceways. Survivors, jurors, witnesses, and members of the public must be able to attend court without being assaulted by inflammatory accusations from any source. If they cannot,the fairness of the defendant’s trial is likely to be gravely harmed, in part because of the natural but false inference that the defendant and his counsel agree with the outrageous conspiracy theories that are being so vociferously advanced by demonstrators claiming to be the defendant’s “supporters.”

This motion is a very clear indication that the defense trial strategy will not involve presenting a conspiracy theory.

First, do no harm.

A life is at stake.

DISCLOSURE: I was a felony criminal defense lawyer for 30 years specializing in death-penalty defense, forensics and freeing the innocent from wrongful convictions. I also taught Criminal Law, Criminal Procedure, Wrongful Convictions and Trial Advocacy in law school. I have known Judy Clarke for close to 20 years dating back to when we were members of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL).

11 Responses to First Do No Harm

  1. George says:

    Given the nature of the crime, I find it hard to imagine a realistic defense strategy, other than some kind of insanity or diminished responsibility defense. But I am not familiar with the case, or the background that led to the bombs being detonated.

  2. Malisha says:

    “No more Hurting People” is something we day-care providers have been teaching forever, but if you look at the society our children are growing up in, the TV shows they see, the way they are taught to glorify war and warlike scenarios, and the heavy dependency upon property over the trivialized attention to life and life interest, you can see why our teachings are lost on these kids by the time they reach 18. “Stop that; somebody might get hurt!” is forgotten and “win win WIN” is remembered. In some parts of society, normal conversation has long been replaced by win-lose formulas about anything and everything. Nobody needs to be careful about anything or right about anything; just to express a certain level of supposedly righteous chest-pounding self-aggrandizing disdain for targets of the next predictable tirade is to establish oneself as a duly authorized judge of the world and all its moving parts.

  3. Sleuth says:

    I really don’t know what to make of this case. I followed it closely until it was discovered a young man in Florida (I think) was also somehow connected to the bombing.

    I found it very interesting how law enforcement, almost immediately, located evidence of the brothers being present during the marathon, and found evidence of the bombing so quickly, but somehow are not able to find missing children, or suspects of garden variety murders so quickly.

    Then there’s the depiction of the mother of Dzhokhar and Tamerlan Tsarnaev, of being some type of Mafia Queen, along with the sister being portrayed as a gangster, and Dzhokhar and his brother, allegedly receiving public assistance (food stamps), although they were known to carry lots of cash, and wear expensive clothes, etc. just sort of, kind of, left me more confused and dumbfounded.

    To me, the real take away, or message from this tragic event, are the simple, yet profound words of little Richard Martin, one of the young victims killed in this horrific act of terrorism, “No More Hurting People”. There should be a federal mandate that all members of law enforcement be required to have these words posted on their uniforms, cars, and throughout the buildings of their local police departments.

  4. Two sides to a story says:

    This sounds like true blue American legal circus. Scary attack on innocent people, and scary legal procedures that may not be fair to a defendant. I wonder if Tsarnaev’s older brother had survived, if the legal system might have gone a bit easier on the younger brother. I have true admiration for defense lawyers like you, Fred, who are able to sort all this out. But not so much admiration for the big Z’s defense attorney, who manipulated media to the extreme to help his client.

    • Thanks. I don’t have much respect for Mark O’Mara.

      In addition to his Trayvon Martin shenanigans, he opined as legal analyst on some show that McCulloch’s decision to toss everything at the grand jury investigating the Michael Brown case was a good idea.

      • Malisha says:

        O’Mara is simply a clever racist with a law degree and a practice that nets him millions of dollars in a region where killing African Americans “for reasons” has long been legal. He impresses me no more than would a German lawyer who could get a Nazi murderer off for killing a Jew in 1939.

        • Wow! Tough words, but 100% accurate. He deserves it.

          So this guy, who unethically tried his case in the court of public opinion continually misrepresenting the evidence while unashamedly appealing to racist hate, was rewarded with a fat contract to comment as a legal expert on CNN (I think it’s CNN).

          He makes me shudder with revulsion.

          I don’t know this country anymore.

  5. sonniq says:

    I really don’t know much of “the law”. I judge things by right and wrong, which often has nothing to do with “the law”. I understand that very often an innocent person is found guilty. But I also know that sometimes endless protections of someone presumed innocent or presumed guilty ends up with a wrong verdict because of a detail that one of the attorney plays on so that the verdict he wants, he gets, and it has nothing to do with whether his client is guilty or not. It just depends on if somehow a loophole in the information can be found, or a way to confuse the jury so they can’t convict without a shadow of doubt, and that swings the verdict in the way that attorney wants. It’s hard, when you are watching these trials, wading through any media bias depending of which News channel you’re watching, and finding that someone who did something wrong gets away with it, because of a technicality, and also, someone gets convicted for the same reason. So it seems that it often doesn’t matter if someone is guilty or innocent. It depends on how much money you have to pay an attorney who can manipulate the law the best.

    • There are occasional defense victories, but prosecutors win most of the time. It’s much more likely IMO that an innocent person will be convicted than a guilty person will get off.

      Zimmerman was an exception, but it was due to racism, bad lawyering by the prosecution and a bad instruction by the judge.

    • Annie Cabani says:

      I frequently hear sentiments similar to what sonniq expresses here. And in response, I feel compelled to point out a couple of critical considerations.

      FIRST: Sadly, it IS often – probably even generally – true that the amount of justice a defendant can expect in court proceedings “depends on how much money” he/she has. It can also depend on how much time and effort lawyers are willing to invest in the defendant’s case without being paid up front – such as in Zimmerman’s case, as well as in cases handled by lawyers such as the Professor and the organizations he’s been associated with.

      As a result, most criminal defendants do not have access to full justice, and – as the Professor opines, and I agree – it’s FAR more common for innocent defendants to be convicted than for guilty defendants to be exonerated. (Which flies in the face of our justice system’s purported values – specifically, that it’s preferable to let ten guilty people go free than to ever convict an innocent person.)

      And, importantly, the “high-profile” / highly-publicized trials made available to the public via the media tend NOT AT ALL to be representative of our criminal justice system, overall. Think about it: How many viewers and sponsors would be attracted by the multitude of cases in which poorly-resourced defendants are threatened, railroaded, and/or outwitted – resulting in false guilty confessions or trial verdicts.

      SECOND: As for those pesky “details” and “technicalities” that the general public tends to abhor lawyers raising: Guess what? Those are almost always about, or related to, protections in the Constitution that were designed and intended to protect ALL of us citizens! In view of that fact, would you REALLY view our Constitution as mere “details” and “technicalities”?

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