Dick Rauscher of Stonyhill Nuggets wrote an article on April 25, 2013, called We Have A Choice To Make:  Is Dzhokhar Tsarnaev a Monster of Wounded Child?  Although I’d like for everyone to go back and read this old article completely, I will only quote just the last paragraph here:

The world will be watching how we treat this young man–and it will show them clearly who we are as a people, and what we stand for as a nation.  We cannot let the angry, judgmental extremists that would label this young man as an unspeakable monster ultimately define the soul of our nation.  The world has enough extremist thinking.  It does not need to experience more from us.  That would be an act of violence and terrorism against those very people who see our nation as a source of hope and light in the world–a tragedy that would dwarf the violence we witnessed in Boston.  Well said Mr. Rauscher.

Many people are absolutely sure they know Dzhokhar Tsarnaev’s fate.  There are those that are confident he will be found guilty and possibly be put to death.  Some believe he will never get through a trial, agreeing to a plea deal before any jury deliberates.  Others hope and pray they find the “real” bomber and set Dzhokhar free.  Whether you believe Dzhokhar is guilty as charged, completely innocent or something in between, there is one thing we must all agree on.  It appears that Dzhokhar Tsarnaev will not be able to get a fair trial, at least not in Boston.

The Special Administrative Measures have not been fair from the beginning and continue to hinder his defense team’s progress..  Dzhokhar’s defense team had no advance warning of the SAMs, but found out 3 days later after members of the defense team were denied entrance to FMC Devens for a previously-scheduled and approved visit with Mr. Tsarnaev.  Attorney-client meetings were permitted to resume only after members of the defense team signed agreements to abide by the SAMS.  Really?  After 4 months of detention they decide Dzhokhar might try to communicate with other radicals?

Since their implementation on August 27, 2013, there have been several motions and many oral arguments by defense to lift the SAMs.  A little over a month after implementation, on October 2, the first motion was filed by defense (Doc 110).  No immediate ruling by the court.  After another month, during the November 12 hearing O’Toole spoke of his “interest” in whether the SAMS were annoying or inhibiting, but still did not rule on defense’s motion Doc 110.  In wake of the Court’s comments at the November 12, 2013, hearing, the government did agree to modify two areas of the SAMS.  But these token modifications did not relieve the hindrance felt by the defense team.  On February 20, 2014, defense filed their second motion (Doc 180, in support of Doc 110) requesting the Court vacate the SAMs in their entirety.  Third, defense files Doc 210 on March 5th, a response to government’s opposition to vacating SAMs.  But O’Toole still can’t rule.  He wants to hear more argument at the upcoming April 16th hearing.  Finally on April 16th, O’Toole makes a ruling on defense’s original October motion.  O’Toole leaves it up to the government to come up with a plan.  Six months later? During the June 18, 2014 status conference, the Court agreed with the government’s request to use a firewalled agent and firewalled AUSA in connection with combined legal and social visits.  On July 21st, defense filed Doc 427, Motion to Set Firewall Procedures.  But the government filed an opposition.  Wait a minute.  I thought the government suggested the firewall?  Defense is still working around the SAMs.

Ruling on the vacating of the SAMs is but one area that O’Toole can’t seem to make a decision.

Dzhokhar’s defense team is trying to stop the detrimental leaks that keep randomly “slipping” out.   On May 2nd of this year defense file Doc 280, Motion for Hearing and Appropriate Relief re Leaks and Public Comments by Law Enforcement.  During the June 18th status conference, however, O’Toole denies this motion.  More leaks occur.  The arrest of Stephen Silva and a couple major leaks.  July 25th Judy Clarke files a second motion (Doc 438) for a hearing to address leaks by law enforcement.  USA has filed it’s opposition and we wait.  We wait for Judge O’Toole to ponder, to delay, to allow more leaks.

Are we working towards a fair trial yet?  Defense knows a fair trial isn’t going to happen in Boston, so they’ve requested a change of venue.  COV request was filed on June 18th (Doc 376).  Of course USA opposes motion, defense replies to response, USA requests more time for sur-reply and we wait.

I have referred to Ortiz as the Wicked Witch of the East more than once.  Well Judge O’Toole is Ortiz’s flying monkey, appearing to be doing her bidding every time he turns around.  Judge O’Toole, more often than not, rules in favor of the prosecution.  No to the defense’s motion to lift the SAMs.  No to the defense’s motions regarding leaks.  Inability to rule.  Delays.  I understand that it is normal for high profile and capital cases like these take much longer and the motions go back and forth for years.  The point is that the rulings (when rulings are made) tend to go in favor of the government.

So let’s see how Dzhokhar’s friends have faired.

In July, Azamat Tazhayakov was convicted of obstructing a terrorism investigation by discarding a backpack believed to have belonged to Dzhokhar.  This was a surprise to many, as the testimonies indicated that Dias Kadyrbayev was more the guilty party.  Even CBS News  reported that prosecution felt Dias was the one who through away the backpack, but Aza went along with it.  That is why he was convicted of obstruction?  After the verdict, Aza’s defense comments, “Trying a case in the middle of a bomb city, it is very difficult to get a juror who is objective.  Aza’s attorney Matthew Myers said he “believes jurors felt a ‘certain pressure’ to find his client guilty.”  Myers has also said that Aza was offered a plea deal, but turned it down.  Hopefully he won’t get the full sentence of 25 years.

Next is Dias Kadyrbayev, also charged with obstruction and conspiracy.  We all know Dias, like all the others, originally pleaded not guilty.  On August 21st, Dias changed his plea from not guilty to guilty as part of a plea deal, probably the same deal offered to Aza.  I believe his decision to take the deal is his smartest move, as I don’t think he had a chance of receiving a not guilty verdict.  Furthermore, I believe it was Dias’ girlfriend who urged him to discard the backpack.  Without her urging I don’t think Dias nor Aza would have removed anything but pot from Dzhokhar’s dorm room, let alone obstruct justice.

Tamerlan Tsarnaev and Ibragim Todashev don’t even get a trial.

Fair trial for Dzhokhar?  Doesn’t look likely to me.