What’s In an Appeal? The Process in the Tsarnaev Case So Far


Artist’s rendition of how his year has felt to me.

As we near the end of 2015, I must reflect on what a tumultuous year it’s been. At this time last year, I saw Dzhokhar’s trial approaching like a tidal wave coming from a long way off. A year ago, I still believed in the inherent success of the U.S. justice system. I thought whatever the outcome of the trial, I would have to shake my head sadly and walk away from this case, despite my strong feelings about it. I thought nobody cared what I had to say about Dzhokhar, the tragic turn of events that befell him, or what might happen to him in the future.

It’s funny how much things can change in a year.

To close out this strange, stormy 2015, I thought it would be a good idea to address the current actions of Dzhokhar’s defense team, now that the post-conviction proceedings have begun. If you have been reading this blog, then I suspect you are not just interested in this case but hopeful about the appeals. Rest assured, I am still researching and investigating other aspects of this case, and I am eager to return to them when the time is right. However, after attending the first postconviction motion hearing on December 1st, I thought there was no better time to go over what’s been filed and argued so far.

Ready, Set, Appeal!

I read numerous news articles last spring about how the case was nearing the “finish line” (the media never seemed able to contain their marathon-based puns) when the trial entered its penalty phase. However, a more accurate analogy is probably that of a boxing match — and my father assured me at the time that the trial was merely Round One of ten or more. So here we are, poised to enter Round Two.

This chart gives a brief overview of the stages in the appellate process.

On August 17, 2015, the defense filed its first document to get the ball rolling, a Memorandum in Support of Motion for Judgment Notwithstanding and For New Trial. This means that the case hasn’t even reached the appellate stage yet, but is the first step toward doing so. It is requesting a Judgment Notwithstanding the Verdict, which, to quote Cornell’s Legal Information Institute, “argues that no reasonable jury could reach the verdict that the jury in this case just did.  In other words, it claims that the jury did not follow proper instructions and ruled for the opposing party based on legally insufficient evidence.”

I certainly agree that’s true, but this type of motion is filed on the trial level, so it goes to the trial judge, the one who sat through the entire case with the jury. That would be Judge George O’Toole, about whom I’ve already expressed criticism in regards to his biased rulings. (See in particular my last post, under “403 and the Rules of Discovery” and “The Daubert Issue.”) So, unfortunately, it’s probably unlikely that O’Toole will be willing to budge on these issues, but I do think defense counsel is both making compelling arguments and laying the groundwork for success in a higher court. In fact, after some bandying between the defense and the prosecution, in light of another defense motion filed on October 30th, Judge O’Toole granted a hearing for arguments to be heard. These arguments were heard on December 1st. Unfortunately, he only granted them the ability to argue about one of two key issues brought up in the motions — although both are equally important.

Issue One: Denial of a Venue Change

This is the first and probably biggest issue raised, and should come as no surprise, as much was made of it by the defense and the media in its coverage of this case. My father’s own legal opinion was that the denial of a venue change was a grievous error, rendering the entire proceedings biased and robbing Dzhokhar of his right to a fair trial heard by an impartial jury.

In its first memorandum in support of Motion for Judgment Notwithstanding Verdict, filed on August 17th, the defense attacks this error vigorously. In their supplemental motion from October 30th, they revisit it and dismantle the prosecution’s rebuttal. However, at the motion hearing on December 1st, Judge O’Toole refused to even hear arguments about the venue change. Why is that?

Well, considering he already ruled against it four times, both before the trial and during it, his opinion on the matter is clear. Shortly before the trial began, the defense even went above O’Toole, appealing the decision to the First Circuit. However, two out of three Circuit judges denied the appeal as well. In their memorandum, the defense renews their request for a venue change and details the reasons why the pretrial publicity was so pervasive and so prejudicial that it precluded an impartial jury from being seated. Although O’Toole won’t review it, when the appeal moves to a higher court, namely the First Circuit, they will be forced to revisit the issue. What they may say about it is currently unknown, but there is a lot pulling in the defense’s favor.

First — and I can’t exactly stay on the fence about this issue, because I lived through it — there is the reality: the pretrial publicity for this case in Boston was extensive and hugely derogatory. Before I got directly involved, I followed the case chiefly through the media, and I’ve lost count of the number of times Dzhokhar has been referred to as “evil” or “a monster” in the press, even — and sometimes especially — by otherwise respected outlets like the Boston Globe. For awhile, he seemed to be Boston’s go-to villain, second only to the likes of gangster Whitey Bulger and the New York Yankees. (I’ve lived here a long time. If there’s one thing this city loves, it’s to have something to justify violent righteous indignation. Just ask anyone on Red Sox playoff nights.) Copies of the July 2013 Rolling Stone issue with him on the cover were banned from outlets in the city. When current Massachusetts governor Charlie Baker was running in 2014, in an interview he listed Dzhokhar as his most hated living person. That’s the kind of reputation we’re talking about here — and all this prevailed in the nearly two-year interim between the arrest and the trial. Actually, I think if the pretrial publicity hadn’t been so bad, I never would have gotten so invested in the case in the first place. It was because everything I read seemed so unnecessarily hateful and unfair that I started to truly care about the outcome. (I do, perhaps, have a habit of rooting for underdogs.)

The defense team is far from ignorant to this all-encompassing attitude. In their recent motions, they plot out, in minute detail, all of the ways prejudiced reminders of the Marathon Bombing permeated the city during the trial, all the way into the penalty phase, which just so happened to start the day after the 2015 Marathon. They cover the many changes made to Boston to bring up memories of the bombing in April, the hounding by the media of Dzhokhar’s family members at a Revere hotel when they came to the country to testify, and content of the jurors’ social media pages during the trial. This content was redacted from the court document to protect their identities, resulting in no less than eleven pages of completely blacked out text. Here is just a small excerpt from that August 17th defense memo:

Even if the jurors could have avoided media and public event exposure altogether, they could not avoid their physical surroundings. Starting in early Spring of 2015, banners bearing promotional images for the 2015 Marathon lined the streets of Boston. The messages on the banners encouraged solidarity and unity. See Pictures Collected by Defense Team (including photographs of banners taken in the vicinity of the courthouse and Post Office Square where jurors gathered each morning). Across from the courthouse, cement and other trucks with “Boston Strong” written on the side worked in a construction site. A large “Boston Strong” banner hung in Rowes Wharf, facing Atlantic Avenue. The trucks and banner were was visible from the courtroom doors. See Ex. A, Pictures Collected by Defense Team. (12)

While the document does not include the defense’s exhibit, it doesn’t have to. I took pictures of some of these very things, so you can see them for yourself.

The “Boston Strong” banner along Atlantic Ave, which I can attest was fully visible from outside the courtroom during trial. Photo taken April 21, 2015.
The entrance to the Federal Courthouse, with its street adorned with banners for the 2015 Boston Marathon. Photo taken April 21, 2015.

The sentiments in these public displays perpetuate an us vs. them agenda that I have frankly hated since the day they began. Many times have I felt that the hysterical emotions surrounding the bombing (a name for which I can’t quite place — nationalism? City pride? Lynch mob psychology? Radicalization?) were so strong that I felt scared to give a dissenting opinion. That’s the truth of the atmosphere in Boston when it comes to the bombing. In reviewing all of these collected instances of publicity and reflecting on my own experiences and observations, I often think that perhaps the only people ignorant to the inherent bias of the potential jury pool in this case are the government and the judge themselves.

The defense clearly thinks so as well. In their October 30th motion, the defense notes the government’s objection to the assertions of bias:

In response to the defendant’s venue-related arguments and evidence, the government erects and then tries to demolish a “straw man,” claiming that the defense has failed to prove “that any juror was actually prejudiced or engaged in any misconduct.” Opp. at 1. This fundamentally misapprehends the nature and basis of the defense submission.

In the Memorandum in Support of Motion for Judgment of Acquittal and for New Trial (“Def. Mem.”) [DE 1506], the defense supplemented the record on the issues underlying the multiple motions for change of venue filed prior to and at the commencement of trial with additional evidence and information concerning ongoing publicity and community connections surrounding the Boston Marathon Bombing and this case during the trial through the present time. For that claim, the issue was and remains whether such publicity and community connections created a presumption of prejudice, not whether any particular seated juror may have actually been prejudiced. See, e.g., Skilling v. United States, 561 U.S. 358 (2010). (1-2, emphasis mine)

This brings up an interesting point about the change of venue issue. Essentially, the government claims that all of these absurd displays of solidarity can’t be proven that they actually influenced juror behavior in any way. However, the defense rightly points out that they don’t have to prove that any one juror was in fact influenced, just that the prevailing atmosphere of the venue means it is reasonable to assume the jury pool was prejudiced.

And considering what just happened in a First Circuit ruling in Puerto Rico, precedent could be on the defense’s side.

Wait, Puerto Rico?

Yes, Puerto Rico. On December 7th, the First Circuit, which includes Puerto Rico as well as Massachusetts, overturned a conviction because the defendant did not receive a change of venue. There has been recent coverage in the Boston Globe suggesting that this could be beneficial to Dzhokhar’s case on appeal:

“This case sets the architecture for other cases,” said Boston attorney Martin Weinberg, who handled the appeal in the Puerto Rico case.

David Hoose, a Northampton lawyer and one of the few in the state who specialize in death penalty cases, said that the appeals court will have to consider the facts specific to Tsarnaev’s case, but added that the decision on Monday “certainly has got to breathe some life into the Tsarnaev claims.”

“It’s a case that the appellate lawyers for Tsarnaev are going to be looking to, as a case where they can say ‘a court upheld the right to a change of venue where pretrial publicity is so overwhelming,’ ” he said. “What it comes down to is they want to show their case is like this.”

In response, I read the entire First Circuit decision, in an attempt to determine just that: how similar are these two cases?

In a huge public trial, Pablo Casellas-Toro was convicted of killing his wife. Days later he was indicted on separate charges of lying to investigators, which went about as poorly for him as you’d expect.

First, we must set the scene. In June 2012, Pablo Casellas-Toro, son of a prominent Puerto Rican judge, reported to authorities that he had been the victim of a carjacking. Allegedly, the perpetrators stole several guns out of the car as well. A month later, Casellas’s wife was murdered with the very guns that had been reported stolen. Amid widespread media and public scrutiny, Casellas was arrested for the crime, and the prosecution suggested he had staged the carjacking as a way to cover for the murder.  He was ultimately convicted in January 2014, and then only eight days later was indicted for lying to investigators about the carjacking incident. Then, when he was given a sentence of 109 years for the murder of his wife, he appeared in federal court for the new charges the very next day. A few months later, the second trial started, and he was quickly convicted of those charges as well. Casellas’s lawyers appealed the second trial verdict, claiming the pretrial publicity and the close proximity to the wake of the first verdict made it virtually impossible for him to obtain a fair trial. These were the convictions overturned in the December 7th First Circuit decision.

After reading about the circumstances of the case, I was not as excited as I had been initially. This is for the simple reason that Casellas’s situation differs in a very big way: he was only appealing the conviction for the lesser subsequent charges, not the murder conviction for which he will likely spend the rest of his life in prison. The Court looked only at the conditions regarding the venue for this second trial. A clearer parallel would be if he had appealed the murder conviction itself because of the damning pre-trial publicity. Regardless, there’s a lot in the decision that is worth scrutiny, and even though the underlying circumstances are different, both Casellas’s case and Dzhokhar’s do have a lot in common in regard to public awareness and media coverage from the time of the suspect’s arrest.

For example, the Court describes the immediate media coverage after the murder of Casellas’s wife:

Hours after the discovery of [Casellas’s wife’s] body, “just about every” news media outlet in Puerto Rico descended upon Mr. Casellas’s home and remained there for the day. Several tabloid news programs immediately made the murder investigation the main focus of their programming. Television, radio, internet, and print media outlets in Puerto Rico “have continuously, intensely and uninterruptedly covered the Casellas case virtually on a daily basis.” (4)

These conditions are identical to that of April 19, 2013 in Boston, when Dzhokhar had been identified as a suspect, and the majority of the greater Boston area was put on lockdown while authorities searched for him. Even worse than in Casellas’s case, the entire population was confined to their homes, told there was a dangerous on the loose, and that it was too dangerous to go outside. Ostensibly, in Casellas’s case, while the media frenzy unfolded, the citizens of Puerto Rico were still allowed to go about their everyday lives. However, because the residents of Boston and surrounding suburbs were on lockdown, this forced them out of their routine and turned their attention ever closer to what was happening. And since I was there, I can confirm that when faced with trying to retain some sense of control in a powerless situation, there was only one outlet: watching the news to see if there had been any updates. In that way, not only were Boston residents made aware of the suspect in this case, but they were forced to pay attention to him and his apparent threat to the community, thus already rendering him guilty.

In addition, the First Circuit decision detailed the media coverage of Casellas’s arrest:

Although local authorities summoned Mr. Casellas to the Bayamon courthouse for the filing of charges, he was intercepted outside the courthouse, arrested, and Mirandized in public in view of media personnel who broadcast the event live. (5)

This also happened to Dzhokhar. On the night of April 19th, he was discovered badly injured in a boat in a Watertown backyard. This kicked off a situation that lasted hours before he physically surrendered. (I refrain from using oft-quoted words like “confrontation” or “standoff” when referring to this, because all evidence shows that he was unarmed and never actually threatened law enforcement in any way. More likely is that he was simply too hurt and/or frightened to surrender in a more timely manner. I find that unsurprising, since he had been repeatedly shot unprovoked and then subjected to a series of flash-bang grenades at close range meant to disorient and incapacitate. I could go on, but further scrutiny of this event will unfortunately have to wait for a future post.) Media had been camping out in Watertown all day waiting for action, and many outlets gave real-time updates. My roommates, waiting at Logan Airport for a plane to Europe, told me they watched it all on their phones.

A few months later, a police photographer leaked photos of his capture to the media in order to show us the “real” Boston Bomber isn’t someone to be pitied. This resulted in his resignation, not to mention an unintentional backfire: without images of a suffering human being seared irrevocably into my mind, I might not have started following this case as closely as I did.

The author of this photo wanted me to see a monster, but all I saw was someone scared and in pain.

When it came to Casellas’s murder trial, the First Circuit noted:

Members of the media “covered every minute of every day” of the commonwealth trial which ran from December 10, 2013, to January 22, 2014. Many reporters tweeted the trial testimony verbatim. Cameras followed the defendant, his family, and his lawyers during breaks. (5)

These describe identical conditions to Dzhokhar’s trial, right down to the play-by-play livetweeting (which, in comparing to the trial transcripts, I have found to be more or less exact). The only reason the media did not follow everyone involved with cameras is because they aren’t allowed in federal court, but I can assure you that an entire line of camera crews were parked out front the courthouse every day, making walking by them extremely nerve-wracking, even for a fly-on-the-wall spectator. (I am certain I am present on lots of B-roll of various stations.) In their October 30th motion, the defense even scathingly comments on the absurdity surrounding the media-hounding of Dzhokhar’s family members who traveled to the United States to testify:

…the law enforcement leaks and resultant media circus that erupted upon their arrival provide yet another vivid illustration of the intense attention and community sentiment surrounding the case in greater Boston. The FBI quickly determined that it was necessary to move the witnesses to a hotel out-of-state to escape the local frenzy. Ironically, the FBI recognized that a “change of venue” was necessary to ensure the safety and security of the witnesses while the defendant, with life quite literally at stake, was required to face trial at the center of the maelstrom in Boston. (3-4)

Finally, the Casellas First Circuit decision highlights the fervent public reaction to the guilty verdict in the murder trial:

Citizens celebrated outside the courthouse and an entire stadium of people attending a baseball game erupted into cheers upon news of the guilty verdict in the commonwealth case. Television coverage of the Casellas verdict received the top Nielson rating for that month. The Supreme Court of Puerto Rico permitted the media to broadcast Mr. Casellas’s sentencing live on television, internet, and radio. (5)

Likewise, on May 15th, 2015, word about the death verdict in Dzhokhar’s case spread like wildfire, prompting unsolicited texts to me from friends who knew I’d been following the case. News crews were not only present at the courthouse, but across the city at the Marathon finish line as well, to announce the verdict. (I should know; I was on my way back from lunch when I saw them gathering, and knew a verdict must have been reached.)

Carlos Arredondo, who became a local hero for aiding medics in the bombing aftermath, leaves the courthouse after the penalty verdict was read. Actions like this link the “Boston Strong” sentiment to advocating death for Dzhokhar.

With all of these dual realities in the Casellas case as well as Dzhokhar’s case, it becomes difficult to imagine that the circumstances are not similar enough to warrant — at the very least — close scrutiny by a Court concerned with fairness and justice. In fact, a footnote for the December 7th First Circuit decision even notes:

“In determining whether sufficient prejudice existed to require a change of venue, we must conduct two inquiries: 1) whether jury prejudice should be presumed given the facts before us; or 2) if prejudice should not be presumed, whether the jury was actually prejudiced.” (20)

This clearly defines the legal standard, and returns to the statement made in the defense counsel motion: they don’t have to specifically prove any one juror was prejudiced, just that the venue itself was so saturated with biased sentiment that an impartial jury pool could not be reasonably expected. The circumstances surrounding Casellas’s second trial absolutely made the grade in the First Circuit’s ruling, which vacated his convictions for lying to investigators. This sets the precedent for the district reviewing cases like this. And in comparing the two cases, I think it would be quite a stretch to declare that Casellas’s case presumed prejudice but Dzhokhar’s, through some miracle, did not.

However, on a cautionary note, there does seem to be some indication in the Casellas decision that the First Circuit might not be leaning this way. This is because in explaining its own decision, it in fact cites Judge O’Toole’s decision in Dzhokhar’s case in contrast with Casellas’s, not comparison. That is, it was used as a benchmark to show a case that did not require a change of venue, when Casellas’s clearly did. For example:

In its most recent case on this subject, the Supreme Court identifies four factors relevant to presuming prejudice: the size and characteristics of the community, the nature of the publicity, the time between the media attention and the trial, and whether the jury’s decision indicated bias. See Skilling, 561 U.S. at 379, 382-84.

By the Skilling factors, prejudice should be presumed in this case. Examining the size and characteristics of the community, the district court noted “more than 3 million people live in Puerto Rico, mitigating the potential for prejudice among the jurors ultimately selected.” The district court did acknowledge that Puerto Rico is “a compact, insular community” that is “highly susceptible to the impact of local media.” United States v. Moreno Morales, 815 F.2d 725, 734 (1st Cir. 1987). Compare Tsarnaev, 780 F.3d at 21 (noting Boston is a “large, diverse metropolitan area” with residents that “obtain their news from a vast array of sources”); Skilling, 561 U.S. at 382 (noting Houston is the fourth largest city in the United States, with 4.5 million eligible for jury duty at the time of trial). And during voir dire the district court agreed with defense counsel that Puerto Rico seemed to be a “small” island. (11-12)

Despite this, for all of the reasons already discussed, I think it’s silly to think that Puerto Rico is any more insular a community than Boston, and downright foolish to think that Boston residents were in any way not obtaining news related to the bombing aftermath during the time it was unfolding, considering the entire city became the stage for the manhunt on April 19th.

Other mentions of Dzhokhar’s case include the two-year “cool down” between his arrest and trial, during which heightened emotions are said to have been dispelled. While it’s true that he didn’t have the immediate jump from one trial to another that Casellas did, two years did not do very much to quell the hysteria, as evidenced by the many attempts to thrust the bombing back into the spotlight for anniversaries, memorials, charities, merchandising, upcoming films and political opportunities, just to name a few off the top of my head.

The bottom line is that it’s still too early to tell what the First Circuit is going to do with the change of venue request. However, Casellas’s case can only help, as any Court would have to review the evidence anew, not merely rely on previous rulings by different judges. For now, unfortunately, it’s a wait and see game.

Issue Two: Unconstitutionality of 15 Convictions Under the Johnson II Supreme Court Ruling

It’s all up to these guys.

The second issue brought up in the defense motions is more complicated than the change of venue request, but interesting and potentially very helpful to Dzhokhar’s case. This is the assertion that fifteen of the thirty counts under which he was convicted may be unconstitutional, based on a recent Supreme Court decision, handed down in June of 2015 and referred to in defense motions as “Johnson II.” It’s also gotten little media attention, and the few articles I’ve been able to find don’t really explain it very well. So, I’ve been doing some digging to figure it out myself and see how relevant it actually is to the case.

The answer, at least in my opinion, is very relevant. And if granted, it would relieve a huge burden from the defense.

First, what happens when a Supreme Court decision rules that a statute is unconstitutional? To borrow the explanation from my father, there are two ways in which a law is unconstitutional: either as written (as in, the actual wording in the statute is deemed inaccurate or wrong in some way), or as applied (as in, although written correctly, there has been some error in its implementation that causes it to violate the Constitution). When a law is deemed unconstitutional, it ceases to exist, meaning that any defendant convicted under this law is now innocent, because there was never any crime to begin with. And when a defendant is facing thirty convictions, effectively eliminating half of them goes a long way.

So what exactly is the Johnson II decision? To best understand this, we must look at the case itself. In 2011, a man named Samuel James Johnson pled guilty to several federal criminal counts for his involvement in white supremacy groups planning to commit acts of terrorism. He had three prior convictions, including possession of a sawed off shotgun, which at the time was considered a violent felony under the Armed Criminal Career Act of 1984 (ACCA). The ACCA was put into place in order to more harshly punish defendants who were known to be “armed career criminals” — that is, if they possessed three prior convictions for crimes of violence, the sentencing requirements were raised from a maximum of ten years to a minimum of fifteen years and a maximum of life.

Herein lies the controversy. As I’ve mentioned before, the law usually contains standards of behavior, which a prosecutor must prove a defendant met in order to obtain a conviction. In a previous post, I discussed the prosecution’s folly of leaning so heavily on proving “radicalization” in Dzhokhar’s case, when in fact no statutes have a standard of radicalization, nor require proof of it. In the case of Johnson, his three prior convictions reached a standard set forth by a statute as “crimes of violence,” specifically 18 U.S.C. § 924(e)(2)(B). Things get a little technical here, but bear with me. Here’s the wording of this statute:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;

In essence, this statute is defining the term “violent felony” and laying out the standards for it in (i) and (ii), which I have bolded. (i) details that a person must use, try to use, or threaten to use “physical force” against another person, and that is a “violent felony” as a result. (ii) gets trickier — there are two parts to this, one stated directly, and the other in a more vague sense. First we have “burglary, arson,” “extortion,” “use of explosives” — all very straightforward. This part has become known as “the force clause,” as in, a perpetrator of these crimes is using force (“a firearm, knife, or destructive device”) to get it done. The latter half — “otherwise involves conduct that presents a serious potential risk of physical injury to another” — has become known as “the residual clause,” and this is the part that Johnson challenged as being constitutionally vague. It was because of the residual clause that his possession of a short-barreled shotgun was deemed a violent felony, although he never attempted to use it to commit a separate crime. (By accounts, it was found to be in the backseat of a car in which he was the front passenger.) Because this was considered “violent,” he was given a longer sentence under the ACCA, and this was what he came to contest in Johnson v. United States.

The Supreme Court decision was handed down on June 26, 2015, and struck the residual clause of this statute because of its vagueness. In particular, they found:

Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. … At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy. (Scalia 2)

In other words, it was impossible for anyone to decide uniformly what situations in which “conduct that presents a serious potential risk of physical injury to another” were violent enough to violate the law. For example, sitting in a car with a sawed off shotgun might escalate to use of said shotgun given a number of outside factors, but simply sitting there with it present is not in itself violent. Since there are too many variables in the situation that would result in the use of the shotgun, punishing someone more harshly because it could, in some remote way, lead to violence is unconstitutional. This part of the law was unconstitutional as written and it is no longer valid, meaning anyone convicted under it is now innocent.

So Johnson II struck the residual clause of 18 U.S.C. § 924(e)(2)(B). But how does this relate to Dzhokhar’s case? We know he has no prior convictions, with a firearm or otherwise, and in fact was not tried under that clause at all. He was, however, tried and convicted under a nearby statute, 18 U.S. Code § 924(c)(3), Use of a Firearm During and In Relation to a Crime of Violence. In fact, if you were to look up the U.S. Code, it lies just a few lines above the previously discussed one. And it also has a force clause (A) and a residual clause (B):

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The defense argues that if the residual clause of 924(e) is unconstitutionally vague, so too must be the residual clause of 924(c), as the wording, while not identical, is similar enough to have an identical meaning. If a Court can’t determine the risk factor of what constitutes a crime of violence in the other statute, why would it be any easier to do so here? In the October 30th motion, the defense pointed out:

To be clear, there can be no dispute that the term “physical force” in section 924(c)(3)(A) has the meaning given to it by the Supreme Court’s 2010 decision in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I). In Johnson I, the Supreme Court held that the phrase “physical force” means “violent force,” i.e., “strong physical force” that is “capable of causing physical pain or injury to another person.” Id.

While the ability to cause injury is a necessary component of “violent physical force,” it is not, alone, sufficient because non-violent, non-forceful acts can also cause injury. Courts have held that many offenses with physical injury or even death elements do not qualify as “force” clause “violent felonies” or “crimes of violence.” (11)

The defense takes this assertion further, applying the definition of “violent felony” to several other charges under different statutes, including 2332a (Use of Weapon of Mass Destruction), 2332f (Bombing Place of Public Use), 844(i) (Malicious Destruction of Property), 2119 (Carjacking), as well as the conspiracy charges related to all of the alleged crimes. They argue that if the definition of a “violent felony” has been redefined under Johnson II, the burden of proof for the government has shifted, and they now would have to prove that Dzhokhar exerted clearly defined violent force in order to be convicted. The defense even adds in a footnote that “Courts of Appeals have consistently held that 18 U.S.C. § 16(a) (which is identical to section 924(c)(3)(A)) contemplates ‘destructive,’ ‘violent force’ — not de minimis force” — de minimis meaning “so minor as to merit disregard”  and cites several cases, including one in which the Appeals Court decided, “the term ‘physical force’ . . . refers to actual violent force”(11). This alone, the defense argues, is enough to vacate fifteen of Dzhokhar’s convictions and should, at the very least, result in a new penalty phase.

Why exactly is this argument so important? It goes back to a huge problem I had with the presentation of this case at trial. So many of the charges asserted that Dzhokhar was guilty merely by being associated with the crimes, regardless of his level of participation in them. While I cannot dispute the evidence showing his placement of a bomb at the second blast site, that’s about the only action evidence can’t dispute. Some of the convictions, particularly regarding the murder of Sean Collier and the carjacking of Dun Meng, seemed so egregious that they could not possibly be based on a sound evaluation of the facts. The Johnson II decision backs me up on this. By redefining a “crime of violence” to mean there must be some tangible action made to use or threaten physical force — say, approaching a car and putting a gun in someone’s face, as opposed to standing nearby or being in a separate car some distance away — the government’s case becomes much less of a slam dunk.

When I was sussing out the particularities of this argument, I had a discussion with my father. He said that if the government had indicted Dzhokhar under the residual clause, the one that’s now in question because of Johnson II, they are in trouble, because essentially that clause may no longer exist. In returning to the indictment, however, I found something interesting: the government did not specify a particular clause in any of the charges; they merely cite the entire statute, such as 924(c)(3). This suggests to me that they were trying to cast the widest net they possibly could, as if to say, “Well, if we can’t find evidence he actually committed violence, we’ll get him on the possibility that violence could have erupted around him because of his presence.” That is what the residual clause is asserting, but as the Supreme Court noted, it becomes impossible to prosecute people if you can’t define for them whether or not what they’re doing is a crime.

I suspect this is why Judge O’Toole granted the defense a motion hearing based on this argument, even after hardlining against them at just about every other turn.

The Hearing

The Boston Federal Court is starting to feel like my home away from home.

On December 1st, Judge O’Toole heard arguments from the defense about the Johnson II claim, as well as a few other issues. I had the opportunity to attend, and since the subsequent media coverage was scant, I thought it merited some review.

It was rather brief, compared to what I was used to sitting in on during the trial, at least. It lasted for about an hour and a half, and covered four issues. The main thrust of the arguments covered the Johnson II assertions, and there wasn’t much brought up by the defense that I haven’t just explained, so I will refrain from repeating myself. What I do think is worth mentioning, however, is the demeanor of the parties involved. That’s something I’ve noticed is largely absent from news articles, even though I’ve found it lends so much context to the proceedings.

So I will tell you that the defense was on fire. They were well-prepared, articulate, and spoke with passion. I could tell immediately that without a jury who hated their client to tiptoe around, their presence in the courtroom changed quite a bit. They seemed bigger, stronger, and fiercer than what I saw during the penalty phase of the trial, and for this I am extremely grateful. I’ve worried since the death verdict came in that I had misinterpreted their behavior, that their rapport with Dzhokhar was, as asserted by so many news sources, largely show for the jury. I can tell you with absolute certainty now that this is not the case. They clearly care about him very much, and they aren’t done fighting for him, not by a longshot. I know that this is perhaps a small condolence, but I took heart from it.

Interestingly, in contrast, the prosecution was also much changed, but in the opposite direction. They seemed lackluster, apathetic, perhaps even tired. When Bill Weinreb stood to counter the defense’s arguments about Johnson II, I wondered if he had even prepared his rebuttal at all. He delivered it stutteringly, offering points I couldn’t follow and attacking with collateral arguments that had no bearing on the Johnson II decision or any of the related case law. When I told my father about this, he suggested that the government knows they’re stuck and can offer no real resistance to the Supreme Court decision. I do think it’s interesting, though, that all the ruthless energy I had seen from the prosecution last spring seems to have been drained away. (Perhaps the victory spoils of condemning someone to die aren’t so sweet after all?)

Finally, Judge O’Toole’s response to the Johnson II argument was as typical as I expected. He did not seem very open to the defense’s argument, although I hardly found that surprising considering the rulings he’s made thus far in this case. According to my notes, at one point he stated that the ACCA laws were “just a sentencing enhancement” and they shouldn’t have any bearing on the convictions, because “the jury found him guilty … based on evidence,” which came up in particular in relation to the carjacking charge. (I found this especially galling, because as previously stated, the carjacking charge is one of the weakest convictions, considering the victim himself testified that Dzhokhar wasn’t even there at the time of the car being jacked.) The prosecution also claimed that carjacking by intimidation is the intimidation by the threat of physical force, which again is rather preposterous when the defendant wasn’t present to exert threats or intimidation in the first place. I wondered if the prosecution had already forgotten the facts of their own case, and that perhaps the judge was following suit.

But going blow-by-blow through the arguments of this issue is pointless at this juncture. Judge O’Toole must rule on this motion, and given his prior behavior, it’s unlikely that he will grant the defense much of anything. There has been too much of a show made of this case, and my father said he probably wants to get it off his desk as soon as possible. The important part is the validity of the arguments when they reach a higher court — and I think their case on this issue is quite strong.

Three other issues were covered at the hearing, two of which were minor housekeeping details — one being the unsealing of court documents from both sides now that the trial is over, and the other being restitution to the victims (set currently at $25 per quarter, and although a full amount was not disclosed, at this rate I estimate Dzhokhar will have paid it off in about 5000 lifetimes, so it’s not even worth worrying about). The third issue is more complicated, and involves the demands of the government that the defense hand over confidential work product (thus violating attorney-client privilege and placing future appeals or a possible retrial in jeopardy) as part of the (already unconstitutional) Special Administrative Measures. I’ll avoid too much discussion about this now, as the SAMs are a much larger issue that I plan to cover in the future, but I was more concerned about this before I saw the litigation at the hearing. My father and I discussed this issue before the hearing took place, and he told me he was once in a similar situation, but that a defense lawyer must place attorney-client privilege above demands from a prosecutor; doing otherwise is clear grounds for disbarment. Likewise, when the issue came up at the hearing, Miriam Conrad argued vehemently against it, saying, “Attorney-client privilege in Massachusetts survives past the death of the client.” Upon hearing that, my father said it’s likely she went to the ethics committee at the Bar Association, as he did in his case, and got direction from them not to give up the work product. I’m unclear on where this issue will go or how it will eventually be resolved, but I’m pretty confident that the prosecution will be getting those files over Miriam Conrad’s dead body.

Looking Back and Moving Forward

As this will be my last blog post of 2015, I wanted to end on a note that reflects my current state of mind. I have been thinking about my experiences with this case in the past year. They provided me with some of the scariest and darkest moments of my life. I didn’t know what I was going to find at the courthouse in those weeks in April and May, and when I did, the sick certainty that I was watching a rigged spectacle was overwhelming. I felt wrecked; worse, I felt powerless. I realized I had been struggling with this powerlessness, a belief that I could do nothing for Dzhokhar, since the day he had been arrested. For two years I told myself it was pointless, I was wrong, and it was silly to want to help.

This year, that changed. I started blogging about the case, and how everything is different. This blog has gotten thousands of hits this year. I have met amazing, intelligent and compassionate people that, to my utter surprise, also care about this person from my city, my world, who I could have so easily known. That’s when I realized I’m not powerless. If you’re reading this, I hope you realize that as well. We’re not powerless to stop what’s happened. It won’t be easy and it won’t be quick, but it’s possible. And I’m in it, for better or worse, wherever it will lead. I hope you will continue to stick with me on the journey.

I’ve been looking into different angles of this case, and will be getting into them soon. Still, I wanted to give a hint of what’s coming up in future posts, and it involves making the case I first posited here right after the trial ended, the one I hope will be able to be used in the event of a retrial in an unbiased venue. That’s what I plan to spend 2016 doing: building the defense Dzhokhar deserves, even though it wasn’t the one he got.

I will elaborate later, but for now I want to end on a piece of evidence that, I believe, indicates the defense team is also on the same page. It’s from the October 30th motion, discussing the Johnson II decision and the exclusion of certain crimes from being violent without the explicit use of physical force:

The government asserts, again without citation of any authority, that “deliver[ing] and plac[ing] a bomb” entail violent physical force because “it is the bomb itself that constitutes the violent physical force.” Opp. at 17. However, neither delivery nor placement necessarily involves or even leads to the use of “violent physical force” if there is never an actual or attempted detonation. (15, emphasis mine)

I nearly jumped out of my seat when I read this. This is the first time I’ve seen the defense acknowledge a suspicion I’ve had since it was revealed that there was never a second detonator found: that Dzhokhar was never in control of setting off any explosion. This means it’s likely he only ever placed the device, and then was given a finite period of time before he had to get away, or he too would be killed.

Why is that so important? Well, every legal case, I have learned, is about narrative. It’s about the story told about the defendant. It’s about whether a jury believes a person is guilty of a crime based on the story given to them by the two opposing sides, and the evidence shown often is bent to fit the narrative as much as the narrative is bent to fit the evidence.

Which is why it’s so staggeringly significant if there was no second detonator. If Dzhokhar never attempted detonation, never could attempt detonation, the narrative shifts. He ceases to be — as the prosecution asserted, and as the world believes — a ruthless killer acting with calculation and control. Instead, he becomes what I saw when I reviewed the footage myself: a scared kid doing his brother’s bidding because his life might very well depend on it. The excerpt from the defense’s motion suggests they know this.

The question from there is two-fold: if they did know this, why didn’t they present it at trial? And if they know this and didn’t present it, what else might they know that wasn’t presented, either?

I’ve discussed several possibilities about why the defense’s case was effectively neutered at trial, from biased rulings by the judge barring them from presenting evidence, to potential prosecutorial misconduct in failing to adhere to the rules of discovery, to having to pander to a biased jury because of the denial of a venue change. I can’t fault them for doing what they did — for all intents and purposes, they were fighting with their hands tied behind their backs. But that does beg the question: if the prosecution’s narrative is wrong, and the defense’s narrative is also wrong, then what is the truth? What is Dzhokhar’s real story?

The most important question a writer can ask. For years I’ve wondered what Dzhokhar’s answer would be.

I have thought many times in the wake of the trial that I simply couldn’t let the “official” story be the only one told about Dzhokhar. He deserves more than that, and I owe it to him and to everyone else to tell it, as best as I can, as truthfully as I can. I hope one day he’ll be able to speak for himself, so I won’t have to anymore. And I hope more than anything I’ll get it right.

Because if the narrative changes, so does the ending.

Thank you to everyone for reading and contributing to this blog. Please have a happy and safe holiday season, and I’ll see you in 2016.

Update 12/24/15:

Yesterday, Dzhokhar’s defense team filed a supplemental notice in support of the Johnson II claims. Specifically, they cite two recent circuit court decisions that have also declared similar residual clauses unconstitutional, including 18 U.S.C. 924(c), the exact section under which Dzhokhar was convicted. An excerpt from the document identifies the two other cases, United States v. Vivas-Ceja and United States v. Edmundson:

In Vivas-Ceja, the Seventh Circuit considered a challenge to the residual clause of 18 U.S.C. § 16(b). Unlike the ACCA’s residual clause, which is slightly differently phrased, the residual clause of § 16(b) is identical, word for word, to that of § 924(c)(3)(B). In a unanimous opinion, the Seventh Circuit held that, under Johnson, § 16(b) too is unconstitutionally vague. The court reasoned — just as the defense has argued here as to § 924(c)(3)(B) — that § 16(b) suffers from the same flaws that led the Supreme Court to invalidate the ACCA’s residual clause in Johnson. The Seventh Circuit also discussed and expressly rejected the government’s efforts to distinguish the residual clause of § 16(b) from that of the ACCA. See Vivas-Ceja, 2015 WL 9301373 at **2-4. Those efforts mirror the arguments that the government has offered here. This marks the second circuit to hold that § 16(b) — and thus, necessarily, § 924(c)(3)(B) too — is invalid under Johnson. See also Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). No circuit has disagreed with that view.

In Edmundson, the court likewise held that the residual clause of section 924(c) is void for vagueness and that conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), is not a crime of violence under the force clause. (2-3)

In other words, it is going to be extremely difficult for a judge reviewing these charges to ignore this precedent. It’s possible O’Toole will deny it anyway, claiming the convictions would have qualified under the force clause anyway. However, higher courts will be forced to take a good hard look at it, especially the Supreme Court if it comes to that, because it would mean different districts were applying the law unequally.

In other other words, this is fantastic news for the defense.

Merry Christmas indeed!

14 thoughts on “What’s In an Appeal? The Process in the Tsarnaev Case So Far”

  1. I receive all of your posts as a true gift. Your research into your articles is thorough. I hope that whoever reads them can feel your sincerity. Thank you.

  2. Thank you Heather! for this well researched detailed post. It shows the
    magnitude of the bias that was prevalent throughout this one sided case from day one until now. It gives hope to Dzhokhar and those of us who support him and who are here for the duration.

  3. Thank you so much, Heather, for finding this very telling line in the Oct 30 motion.

    In my opinion, “there was no detonation” because Dzhokhar’s bag did not have a bomb in it at all. The Forum footage does not show him putting down the black bag which was pointed out in court as the one with the lethal bomb in it.

    As you say, the defense has obviously not told the real story, and I very earnestly hope that some day, they do.

    1. Thank you for taking the time to read and comment. I’m grateful for all my readers who contribute to the conversation. I’m familiar with that theory, but with the currently available evidence I can’t pursue it without ignoring a lot of other established facts, unfortunately. If I uncover something that does point to that possibility, rest assured I will post about it immediately. Whatever the reason, that motion certainly indicates the defense knows far more about the crime’s circumstances than they were allowed to bring up in court, and I’m also hopeful that one day soon, whatever the truth is, in the interest of justice, we’ll have it addressed.

      Thanks again for taking the time to comment and welcome to my blog. I apologize for the delayed response — I’ve been busy with the holidays. Happy New Year!

    1. Hi Tita,

      Thanks so much for your comment. I’m so happy to hear my blog has had such a wide readership. There was a time when I didn’t think anyone outside of Boston even knew or cared about this case.

      Welcome to the conversation and stay tuned — with the help of Attorney Dad over my winter break, we’ve got some interesting posts coming up. 🙂 Thanks again and Happy New Year!

  4. Wow, this is a revelation indeed. Thank you so much – for all of your tireless efforts. Bit by bit by bit, a little light emerges.

    1. Hi Richard,

      It’s so lovely to hear from you again! I hope you’ve been well. Thanks for your continuing encouragement and support. Your words always make me feel so warm and grateful. I’ve been working on other angles of the case in the background, and with some help from my father, I hope my future posts will add to the illumination. Stay tuned and Happy New Year!

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