Dzhokhar Tsarnaev’s defense lawyers have initiated a bunch of motions since the last status hearing. The most meaningful one is probably Doc-233, a “Motion to Compel Discovery of Favorable Evidence”, published on March 28. On the surface, it seems to acknowledge Dzhokhar’s guilt by using mitigation arguments, but this misinterpretation has been annilihated quickly by a tweet from David Frank. The defense has to follow a two-pronged strategy: make the case that he’s not guilty and prepare for the possibility that he’s found guilty.
Doc-233 obviously belongs to the second department. The part of it that raised the biggest attention is the defender’s claim that the FBI tried to recruit Tamerlan as an informant before the bombings, something which the FBI flatly denies. The claim is shrouded in a request to obtain all documents concerning Tamerlan’s FBI contacts:
We base this on information from our client’s family and other sources that the FBI made more than one visit to talk with Anzor, Zubeidat and Tamerlan, questioned Tamerlan about his internet searches, and asked him to be an informant, reporting on the Chechen and Muslim community.
The prosecution answered:
The government has no evidence that Tamerlan Tsarnaev was solicited by the government to be an informant. As for information about any contacts between the government and other Tsarnaev family members, it appears from your letter that this information is already available to you through the family members themselves.
So for the prosecution, the Tsarnaev family deserves no credibility when it comes to Tamerlan’s FBI contacts. Period. But the defense doesn’t let the prosecution get away with this evasive move, now with a distinct emphasis on the “other sources”:
The defense has learned of the FBI’s contacts with Tamerlan through other sources (including hearsay references contained in FBI 302s from various community sources). No one other than Tamerlan and the agents involved were actual witnesses to what transpired, and absent verification from the government itself, the defense will have no direct evidence to establish reasons for these contacts, or their number, nature, and content. This information is critical to explain Tamerlan’s changes in behavior and functioning, and should be disclosed.
Given that the FBI’s policy has always been to deny any contacts to the family before April 15th, and that it would be most embarassing for both parties to admit that they are wrong, we can expect that the defense’s claim is resilient and these other sources go far beyond the mentioned hearsay references, with an unknown number of people who are ready to testify if necessary. This is an open challenge to the government and shows a remarkable strength on the defense’s part.
The FBI/prosecution looks cornered. They can’t even cite national security reasons for withholding the documents, because the documents don’t exist – according to the prosecution. Most big US media chose to ignore these embarassing news, with the remarkable exception of the Boston Globe. So far the FBI/prosecution has not substantially reacted to the defense’s filing – Carmen Ortiz declined comment, and the Boston FBI repeated a statement from last October (source).
It will be interesting to see which position Ortiz will take on the next hearing on April 16th. She has a dilemma – if she caves in to the defense and admits and delivers the documents, it will cause a national outcry; if she insists on having no files, she enters a gamble with unknown risk because the defense has not been explicit about the bandwidth of their “other sources”, but very explicit about their determination to activate them. This could spark an even bigger public debate on the FBI’s habits than what is happening now already.
This move of defense bears the handwriting of Miriam Conrad. Before she attended Harvard Law School and became a lawyer, she was a reporter for the Miami Herald:
I met Conrad in the early 1980s when we were both rookie reporters in the Miami Herald’s Ft. Lauderdale newsroom. I recall a tiny, funny and fiercely intelligent woman — the sort that patronizing male colleagues might call spunky before they became acquainted with Conrad’s startlingly powerful rabbit punch.
“She was a real street journalist, and smarter than the rest of us,” recalls Ernie Torriero, a Voice of America editor who worked with Conrad at the Herald and later at the Kansas City Times. Christine Spolar, an editor for London’s Financial Times who attended Northwestern University with Conrad and has remained a close friend for 35 years, remembers an analytical journalist who “loved to explore the whys and what-ifs” and worried perpetually that she had overlooked some critical witness to the story she was trying to tell.
It appears that Dzhokhar could have found no better advocate, because he can certainly need the qualities of a “street journalist” who tries to reach out for all “critical witnesses”. Additionally she has much experience with the FBI and its notorious “sting” operations: approaching, instigating, and supporting potential violent perpetrators, preferably with a Muslim background. Conrad’s last client was Rezwan Ferdaus. In an interview from January 2013, she tells his story: he was contacted by an heroin-addicted “informant” on the FBI’s payroll, who introduced him to two undercover agents masquerading as Al Qaida operatives. The group developed a ridiculous plan to attack the Pentagon and the Capitol Building with self-constructed model airplanes loaded with C-4 explosives. Needless to say, this unworkable plot was never executed. Ferdaus was busted when the FBI had achieved enough incriminating evidence (like a photo where he poses with a AK-47). It is unclear if it was him who had the idea for the plot or the informant, but it is very clear that he lacked the intellectual, material and technical capacities to perform this attack. In other words: the FBI produced the plot that they allegedly prevented.
Miriam Conrad says in the interview that the FBI inflated a thought crime to a terrorist felony. And she criticizes the government’s excessive use of sting operations. Anyone who has heard this interview will come to the firm conclusion that she will never be satisfied with a plea deal and the cover-up of the operations behind the bombings. She’s well aware of the political dimension of the case, and she’s also used to defend people who are hated by everyone and the hostilities coming along with that. That’s probably why so many article on the Tsarnaev case end with “Miriam Conrad declined comment”.
Moreover, she has the qualities of a street journalist, and it is safe to assume that she has made every endeavor to find those “other sources” not only for Tamerlan’s FBI contacts, but also the Watertown Shooting, the MIT shooting, the boat shooting, and most certainly the bombing itself – the last one being an event with a potential of hundreds of “critical witnesses”.