On 05/02/14 the defense team for Dzhokhar Tsarnaev filed Doc 280, Motion for a Hearing; Re: Leaks & Public Comments by LE. I was pleasantly surprised upon reading this document, in that Dzhokhar Tsarnaev’s defense appear to be making a substantial effort to counter the negative, (and possibly illegal ?), pretrial publicity to which their client has been subjected for many months. ( This via what is most likely the only avenue open to them to do so, in light of the Special Administrative Measures imposed, by the government upon Dzhokhar Tsarnaev and his attorneys.)
This negative publicity, as we know, has undoubtedly been instigated by the government/ prosecution. Much has resulted due to “leaks” by various, (and usually “unnamed”), persons representing various law enforcement sources, including the FBI. The mainstream media has, for the most part, and not unexpectedly, been fully cooperative in the character assassination of Dzhokhar Tsarnaev. These issues are more than adequately addressed in this document. Doc 280 can be found here: http://www.scribd.com/doc/221660596/Doc-280-Motion-for-a-Hearing-Re-Leaks-and-Public-Comments-by-LE-050214 (Thanks Josephina.)
In the first paragraph of this motion, the defense requests the scheduling of a court hearing, to address “the inappropriate public comments and numerous continuing leaks of Grand Jury, discovery and investigative information that have plagued this case since its inception. The public comments and leaks threaten Mr. Tsarnaev’s right to a fair trial and the court should direct the prosecution to put a stop to them.” It is, of course, undeniable that these factors have and probably will affect the defendant’s chances of a fair trial, which is why such conduct by the prosecution is not tolerated, and is, in fact illegal in many countries. As far as I am aware, there has been no mention of any efforts by law enforcement to identify their leakers, or, indeed, of any intended disciplinary action, should identification take place. This can only lead one to the conclusion that such behavior is considered “acceptable” by law enforcement and also the prosecution, in order to prejudice a case in their favor. Certainly no ethics here!
It is noted that Dzhokhar Tsarnaev’s defense have attempted to address the issue of leaks and inappropriate statements, with the prosecution, beginning as early as 26th April, 2013. Apparently it took two letters from the defense counsel before the prosecution replied in a letter dated 4th June, 2013. In their response, the prosecution “described efforts to impress upon law enforcement officers their duty to avoid public disclosure of investigative materials”, but defended the release of some information as being in the interests of “public safety.” Defense then indicated their faith that the prosecution would do “everything reasonably possible” to remedy the situation.
Personally, I cannot imagine what information related to this case could have been considered to be relevant to “public safety” at this point. It must be remembered that the “suspect” was, at this time, seriously injured and incarcerated in a maximum security facility in a federal prison where he was, (and still is), subject to solitary confinement. This feigned concern for public safety is particularly ironic, in view of the complete and utter disregard for such demonstrated by law enforcement throughout the “lock down” of the city of Boston, the “shootout” at Watertown, the “manhunt” and that unspeakable debacle that was Dzhokhar’s capture in that backyard in Watertown.
In the second paragraph, on page 2 of doc 280, the defense goes on to state that despite their good faith in the prosecution’s efforts back in June, 2013, that “now, many months later both the leaks and prejudicial publicity have reached a new level, and have been aggravated by the addition of emotional statements and opinions on national television by FBI officials.” The National Geographic “docudrama”, which was televised in April this year is referenced directly, ( at 1.), and “previously undisclosed” video is mentioned. ( A link to the National Geographic web page is included in this document.) Agent DesLauriers’ theatrics, as demonstrated in the National Geographic “docudrama”, are well described! (Obviously, this guy is far more emotional than the agent who shot Ibragim Todashev to death in Florida.)
On page 3, (at 2.), Stephanie Douglas, the Washington DC based Executive Assistant Director of the FBI, is mentioned, along with Deslauriers, in connection with the “60 Minutes” segment, televised in March 2014. It is stated that the story “offered additional investigative information that had not previously been made public.” Mention is made of Stephanie Douglas’ account of viewing footage where she sees “people who are killed”, most specifically, in this case, Martin Richards. It has long been my contention that the prosecution are in some way using the victims, (and survivors), of the bombing. I am particularly disgusted by this as it illustrates the prosecution’s complete lack of respect for this group of people. Douglas’ reference to her viewing of this footage, which featured in the “60 Minutes” segment, was intended to “pull at the heartstrings” of viewers, and in so doing, lessen the chances of any of those viewers stopping to consider the question of Dzhokhar’s guilt or innocence. It would seem that the defense are well aware of this strategy employed by the government/ prosecution and that this is the reason for the inclusion of Douglas’ account.
At the top of page 4 of Doc 280, whilst still on the subject of the “60 Minutes” segment, DesLauriers’ assertion that Dzhokhar was “smirking” at his arraignment in July of 2013. is completely refuted. An explanation of Dzhokhar’s facial injuries and their effect on his facial expression is given in a note, (at 3), at the foot of this page, where it is stated that his facial injuries were sustained during a “burst of gunfire” whilst he was hiding in the boat at Watertown. Would not DesLauriers have known of these injuries? If this were the case, which would seem most likely, then his statements were a blatant attempt to manipulate public feeling.
Complaint is made concerning information given recently to ABC news detailing the results of bomb analysis carried out by the FBI. The defense had, apparently, at this time, been denied access to this information, the prosecution having informed them that it was “too soon” to produce it. That the prosecution found this to be an acceptable action to take, particularly in view of the defense’s frequent complaints regarding their tardiness in the provision of discovery, quite frankly beggars belief.
This is followed, on page 5, by reference to the “boat note” and the image promoted, again by ABC news. Here, the often repeated alleged quote from this note, “Fuck America”, is described as being “patently false.” ( I must, at this point, acknowledge that I was wrong here, as I have said previously that this was the only alleged content of the “boat note” which I deemed credible!) To me this would suggest that possibly much of the so called information provided by the main stream media was, in fact, disinformation.
Emphasis is then made of the impact and potential unlawfulness of these leaks, and the importance of grand jury secrecy. On pages 6 and 7, rules and regulations applying to Department of Justice personnel, which includes the FBI, are listed. It is immediately apparent that some of these rules have not been observed as they should be and again begs the question as to why disciplinary action, if not legal action, is not being suggested as appropriate in the case or cases of those responsible.
The conclusion of this document, which begins at the foot of page 7 and runs on to page 8, is as follows: “Based on the foregoing,the defense requests that this court holds a hearing to assess responsibility for the leaks and inappropriate public comments, direct that they may be stopped upon the pain of contempt, and enter appropriate orders to protect grand jury secrecy and the defendant’s constitutional right to a fair trial.”
Concerns should be raised for anyone reading this document in light of the behavior engaged in by the government/ prosecution in this case which has been deplorable. In my opinion it is a bold move on the part of Dzhokhar Tsarnaev’s defense, indicating that they intend to do whatever they can to obtain a fair trial for their client. Judge O’Toole should, most certainly, schedule the requested court hearing. At this hearing, he should, undoubtedly, rule in favor of the defense. If the judge fails to do this, he would show himself to be, at best, not impartial, and at worst, ruling at the behest of the government. It is my hope, and I would think it is the hope of all here, that Judge O’Toole will do what is undeniably the right thing in this case.