Yesterday’s 4th. status conference in the case of U.S.A. v Dzhokhar A. Tsarnaev began at 10.00 am prompt. Miriam Conrad and David Bruck were the only two members of DT’s defense team present in court and on this occasion William Weinreb did most of the speaking for the prosecution. As previously, media personnel seated on the left of the courtroom vastly outnumbered both the victims and their families, seated on the right and members of the public seated in the center row.
For Judge O’Toole, the first order of the day was to deny the prosecution’s motion regarding a protective order pertaining to autopsy photographs of the victims of the Boston Marathon bombing, ( doc 225), which of course means that DT is permitted to view any or all of these photographs, rather than just those which the prosecution intend to produce as evidence at trial. This was immediately followed by the judge’s denial of the defense’s motion to dismiss charges (doc 208), so presumably, DT will indeed face a total of thirty charges at trial.
David Bruck was the first of DT’s defense attorneys to address the court with regard to the Special Administrative Measures. Bruck, as Judy Clarke, is softly spoken and comes across as mild mannered. He described the SAMs as “having no basis” and went on to describe the defense’s opinion that the case of their client is “the story of a family”, and stated that it was “his job to learn the story of that family.” This was cited as the reason for the presence of an investigator for the defense when DT is visited by his sisters. Bruck complained that the additional presence of an FBI agent assigned to the prosecution at these visits compromised the defense’s work product. He went on to describe DT’s conversations with his sisters as being “stilted, fearful and cautious”, due to the presence of said FBI agent. It was admitted that these visits are, in fact, a combination of both legal and social. DT’s defense are of the opinion that the visits should be subject to attorney/ client privilege.
The prosecution’s response to Bruck’s appeal was that the SAMs are necessary “in the interests of national security.” This was immediately challenged by Miriam Conrad, who stated “there are no co-conspirators!” Weinrab went on to express concern about “messages being relayed” from DT to others and challenged the defense’s observations regarding their client’s interactions with his sisters, saying that the defense should admit that DT “felt free to say anything.” DT’s now famous “comment to his detriment” was given as an example. At this point Miriam Conrad protested strongly that DT’s comment was “nothing of the sort” and went on to complain about the prosecution’s habit of “leaking” case info to serve their interests whilst the SAMs prevent the defense counsel from countering this.
The prosecution also objected to the social/ legal visit combination, complaining that this was “outside the norm” and that the BOP didn’t have regulations accommodating this. (?!) Judge O’Toole said that he agreed with the defense that an FBI agent assigned to the case should not be present at the visits between DT and his sisters, (at which point I became hopeful), but it was then suggested by the prosecution that an FBI agent not assigned to the case might be an option. O’Toole appeared to agree with this and also to the further suggestion by the prosecution that he wait for input from the BOP before making a ruling. The judge did indicate a willingness to challenge the BOP, should their regulations interfere with his eventual ruling, but, for all intents and purposes, it would appear that the SAMs will remain in place for the foreseeable future.
Discovery was again discussed at length during yesterday’s hearing. The defense’s motion to leave to file replies to govt’s opposition to discovery motions (doc251), was denied despite the defense’s statements that the govt was failing to respond in a “timely manner.” It was revealed that the defense team has been required to travel to Quantico Virginia and two other unnamed FBI facilities as well as the Massachusetts State Police lab in order to review physical evidence. Access to information on the FISA surveillence of Tamerlan Tsarnaev is, as I understand it, to be further discussed.
Although DT’s defense are remaining vigorous in their request for any and all information obtained by the FBI from Ibragim Todashev, this has been limited to that which might be relevant in illustrating the “radicalization” of Tamerlan. The Middlesex DA’s office has objected to any provision of information regarding the Waltham murders, citing their investigation as on-going. (Does this mean the Middlesex DA doesn’t buy the FBI version either?)
The remaining discovery issue discussed yesterday was the examination of DT’s laptop computer by the FBI. Defense would like to see the results of the FBI analysis and Miriam Conrad suggested that the analysis performed by the FBI may have exceeded the parameters of the warrant issued. Prosecution’s response was that they believed that the defense should conduct their own examination of the lap top. Judge O’Toole offered no opinion on this so presumably negotiations on this will continue.
The next status conference is scheduled for 18th. June. The possibility of an interim conference was suggested. Judge O’Toole did stress his commitment to a trial beginning in November 2014, despite objections by the defense. Yesterday’s hearing came to a close at 11.10 am.