Who Killed Sean Collier? Part One: The Bike Man

Missing links about the murder of Officer Collier could shed light on the overall role of Dzhokhar Tsarnaev in the Marathon Bombing plot.

April 18, 2013.

My recollection of this date, as a resident of Boston, is vivid. It had been a mentally exhausting week: from the bombing on Monday, to the line of army men stationed in the Harvard T station to check bags, to the circus in town at Government Center, where I took my preschoolers on a field trip. I recall stepping off the bus clutching four-year-olds in each hand, only to be greeted by a hoard of area policemen in full riot gear and assault rifles. That week, every emotion was heightened, every person waiting for the other shoe to drop. It would either be another attack, or an inevitable arrest. There seemed to be no other possibility.

So when around midnight my roommate told me a police officer had been shot and killed at MIT, I thought: This week has brought all the crazies out. My next thought was: I’m going to bed. I had a class to teach at 8:30 the next morning. I didn’t think a shooting at MIT could be related to the bombing, and I certainly didn’t fathom that within six hours, the entire city would be shut down while law enforcement searched for a teenager from a neighborhood I was intimately familiar with.

When the trial started last year, one of the many things I hoped would be clarified were the events of that evening — but, as you probably know, the trial left me with more questions than answers. In the months since the three-week stretch I spent in a courtroom with Dzhokhar, the more determined I’ve become to answer the questions myself. And when I went home for Christmas this year, my father and I became acutely focused on one question: who killed Officer Sean Collier?

This question has been casually brushed aside both by the media and at trial. I often see casualties listed at four for the bombing, not three, even though Sean Collier died three days later in a completely different crime. To do this is not only disingenuous to Officer Collier’s memory — the man died in the line of duty trying to protect the community from a very tangible threat — but it continues the cycle of misinformation about the case. This post is the first in a series that aims to dispel the myths and critically examine the available evidence about Officer Collier’s murder. It is my hope that doing so gives a new perspective on Dzhokhar’s alleged involvement, not just in this crime, but all the crimes for which he was found guilty.

To start, let’s look at the indictment.

The Charges

I have included screenshots of the pages from the indictment that charge Dzhokhar with Sean Collier’s murder. While the language is all but identical, he was actually charged three times for Collier’s death – in Counts Sixteen, Seventeen and Eighteen. The only difference is that each count refers back to a previous count: in Sixteen, it refers to Count One (Conspiracy to Use a Weapon of Mass Destruction Resulting in Death), in Seventeen, Count Six (Conspiracy to Bomb a Place of Public Use Resulting in Death), and in Eighteen, Count Eleven (Conspiracy to Maliciously Destroy Property Resulting in Injury and Death).

I’ve discussed these charges with my father, and we differed a little on our interpretation of them. Let’s look at some specific language:

105. The Grand Jury further charges that DZHOKHAR A. TSARNAEV, in the course of committing the violation alleged in this count, caused the death of a person through the use of the firearm, and the killing was a murder as defined in Title 18, United States Code, Section 1111; specifically, he caused the death of Officer Sean Collier. (42)

I took this to mean that Dzhokhar was charged for possession of the Ruger P95 handgun, and that he (and he alone) used it to murder Collier. However, Dad pointed out the following is written above it:

103. The Grand Jury further charges that the firearm was brandished.

104. The Grand Jury further charges that the firearm was discharged. (42)

It does not specify who brandished and discharged the firearm. In conjunction with the subsequent section, is implying that it does not matter who did the killing, as long as Dzhokhar first had possession of the firearm as part of the bombing conspiracy.

This creates problems legally, namely for the vagueness of the language. It allows for a lot of subjective interpretation by a juror, which is not permitted in a criminal statute. Also, this charge is under 18 U.S.C. 924(c), the residual clause of which has already been struck as unconstitutional under the Supreme Court’s Johnson II ruling. (You can reading more about Johnson II and its implications for Dzhokhar’s appeal in my post here.) As a reminder, the Johnson II ruling declared that the residual clause is too vague because the statutes must show that there was the use of violent physical force by the defendant. The residual clauses in the related statutes do not specifically explain how more passive actions by the defendant, such as possession of a firearm, can then escalate to violent physical force, and therefore have been struck. By that alone, Counts Sixteen, Seventeen and Eighteen in Dzhokhar’s indictment are unconstitutional and the convictions must be vacated. They are not outright alleging that he murdered Sean Collier, but that his possession of the Ruger P95 for use in the bombing plot led to the death of Sean Collier, whether he used violent physical force himself or not.

Because of this, I could probably just call it a day and end this post here, but I’m not going to. It’s important to understand why the government crafted these charges against Dzhokhar the way they did, and what exactly they put forth in order to get the convictions they wanted. They needed to specifically place the Ruger in Dzhokhar’s possession for these charges to stick, and they also needed someone to place him at the scene of the murder, whether or not he was the actual shooter.

If perhaps you’re wondering at this point why they didn’t just charge him with Sean Collier’s murder, the answer is that they couldn’t: murder is always a state charge, and these are all federal indictments. And in fact, he has been charged on the state level for Sean Collier’s murder. A mere three weeks after his sentencing, news broke that state attorneys hoped to prosecute him for Collier’s murder and charges related to the events of April 18, 2013. However, as recently as January, the Boston Globe reported the state had pulled back on that claim significantly, acknowledging that the death sentence appeal is “a long and complicated process which will span many years,” and stating, “We will monitor the defendant’s post-conviction motions and federal appeals and continue to assess the necessity of pursuing our state charges.” What exactly would constitute a necessity? Well, perhaps having the related federal convictions overturned due to the unconstitutional statute. It does sound as though the state is trying to cover all its bases here, as if they suspect the myriad of problems already present with the case.

All that aside, critics of the move to prosecute Dzhokhar last summer cited emotional turmoil for victims and the monetary cost of giving him a second trial at the state level. However, it’s likely there’s a far more practical reason why the state may have changed its tune about pursuing its charges: the evidence against him, in actuality, just isn’t that good.

Which brings me back to the point of this series. Let’s forget everything we know about this case, and try to look at the murder of Sean Collier with fresh eyes. A man, a police officer, has been murdered. The defendant is alleged to have had possession of the gun that killed him, and in turn “caused his death” by being at the scene of the crime. (For now, we’ll have to ignore that simply being present at the crime scene is no longer sufficient evidence to convict under Johnson II. We’re dealing with the narrative as constructed by the prosecution at the time.) Once the charges have been levied, in a court of law, the question becomes: is he innocent or guilty?

In reality, Dzhokhar was convicted of Counts Sixteen, Seventeen and Eighteen without much fuss. The weight of the bombing and the notoriety of the overall crimes weighed down on him so heavily that almost no time or effort was put into opposing his involvement in Collier’s death. But what if this was the only crime for which he was charged? Doesn’t he, like everyone facing such charges, deserve a chance to defend himself?

I’m going to give him that defense now. For this, we need to break down exactly what happened to Officer Collier. And it starts with a man on a bike.

Nathan Harman, “The Bike Man”

MIT PhD student Nate Harman, at right, with a bike that may or may not have passed Officer Collier’s car the night in question.

At around 10:24 pm on April 18th, 2013, Officer Sean Collier was shot and killed inside his squad car on the MIT campus. At approximately the same time, graduate student Nate Harman was biking home from his office. At trial, the theory of the prosecution was that Harman passed Dzhokhar at Officer Collier’s car around the time of the murder. To prove this, on March 11th, 2015, they called Harman as an eyewitness, and showed the jury surveillance footage of that portion of campus, depicting the car and two figures approaching from across the courtyard. This footage is low quality and shot from a distance, so it could not identify who the people were. However, Harman filled in the blanks, stating he spotted one person leaning inside the car, who in court he identified as Dzhokhar.

The defense team offered no cross-examination of Harman, leaving this version of events uncontested. Usually, this would indicate — and perhaps did indicate — to the jury that there was nothing to contest, that they were admitting Dzhokhar was indeed the one at Collier’s car. It wasn’t until closing arguments that Judy Clarke tried to offer an alternate version:

So where was Tamerlan? If Jahar is standing up and looking at Nate Harman, where is Tamerlan? As the door opens — you know, here’s the car, and the door opens — there’s a V. Here’s Jahar standing, looking at Nate Harman. Where is Tamerlan? He’s got to be squatted down trying to get Officer Collier’s gun. (13)

I’ve brought up before my belief that the defense tried the best they could, and were often obstructed from doing their jobs correctly. I don’t have a definitive explanation for why they did not offer a cross-examination of Nate Harman. I can guess many possibilities, but I can’t fault the defense for not doing it. In the moment, there are so many factors weighing down on a team of attorneys that could have influenced them in one way or another.

Luckily, that’s why my father and I are here.

When I explained what I knew about Collier’s murder, Dad wanted to take a look at the transcript of Nate Harman, known between us as the Bike Man, and the corresponding exhibits that were shown to the jury. We started this around Christmas time when I was home for the holidays and have been working on it ever since. Finally, we are ready to present a defense to you, the reader, who will act as the jury, the trier of fact, to determine whether Dzhokhar was indeed the person identified by Nate Harman at Sean Collier’s car that night.

The Testimony

C:MSP 2514 DocumentsLand Projects R220132013-CAR-000105-Wate
Exhibit 683 – A diagram of the Koch courtyard at MIT and surrounding streets, depicting the location of Collier’s car when he was shot.

According to the record, Harman is the only person to place Dzhokhar at the crime scene. No one else was called to verify Harman’s version of events or further identify the defendant. Therefore, we are relying on the testimony of a sole person. It is worth noting that while eyewitness testimony is used all the time in courts of law, that does not make it infallible. According to the Innocence Project, “Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.” To be clear, eyewitness misidentification does not mean that the witness is lying, merely that he or she is mistaken for a variety of reasons about the identity of the suspect.

So, the question for a jury becomes: is this sole eyewitness testimony reliable? Let’s look at what’s on the record. The transcript of his time on the stand takes up a scant fifteen pages, and in only two short sections does Harman describe the person seen at Collier’s car. The first is here:

Q. And what happened exactly — happened exactly as you drove by them?
A. He sort of snapped up, stood up and turned around, and he looked startled, and then I just, you know, didn’t think anything of it and rode off.
Q. Did he look at you?
A. Yes.
Q. Did you look at him?
A. Yes. We made eye contact.
Q. Did you get a good look at his face?
A. Pretty good.
Q. What did he look like?
A. I mean, he was young. I just assumed he was an MIT student. Young, normal height, thin. Yeah. He was wearing a dark sweatshirt and a hat. Yeah. (193)

Despite admitting that he “didn’t think anything of” seeing someone startled at a police cruiser, someone who could have easily blended in with thousands of other MIT students, when it was time for Harman to identify Dzhokhar, he suddenly became unequivocal:

Q. Were you able to tell what race he was, or color?
A. I thought he was white.
Q. Did he seem skinny, fat?
A. Skinny, yeah. Thin.
Q. When you say like normal height, what does that mean to you?
A. I mean, shorter than me. I’m six foot-ish. So I would guess maybe — not particularly short, but maybe five-eight? I don’t know. I’m not good at judging that.
Q. Any facial feature that stood out for you?
A. I remember thinking he had a big nose, but nothing beyond that really.
Q. Do you see that person in the courtroom today?
A. Yes.
Q. Can you indicate for us where he is and an item of clothing that he’s wearing?
A. He’s right there (indicating). He has a blue shirt on. Yes.
MR. WEINREB: Your Honor, may the record reflect the identification of the defendant. (194)

These two small sections are the only real evidence presented against Dzhokhar during Harman’s testimony. The rest of it, according to an opinion written by my father, Attorney Thomas Frizzell, “is there to establish a foundation for the ID testimony and to add some collateral facts to aid in the ID. They are establishing that he has first hand knowledge so he can testify competently.” He also clarified that first hand knowledge in the legal sense is “knowledge that [the witness] acquired himself through the use of his own senses. There are five of these: sight, hearing, smell, taste, feel. If the witness did not see it, or hear it, or smell it, or taste it, or feel it, then he knows nothing about it except what someone else told him (hearsay).”  

Since you are the jury, you will be deciding if Harman’s testimony is reliable. For this, like any jury, you will need to understand the evidentiary standards. Dad was kind enough to define this term for me as well:

There are 3 different evidentiary standards used in the law. A “preponderance of the evidence” (51%/49%), “clear and convincing” (60%/40%), and “beyond a reason to doubt” (80%/20%).   Beyond a reason to doubt is the criminal standard that we are concerned with.  Beyond a reason to doubt: A reason to doubt is a doubt for which you have a valid reason. It is not a scientific doubt nor is it a gut feeling doubt. It is a doubt for which you have a valid reason!  For this purpose valid is defined by its ordinary English meaning, such as substantive, factually based.

Therefore, a jury needs to be 80% certain that Dzhokhar was the person Harman spotted at Sean Collier’s car in order for him to be convicted. At the end, if you are not 80% certain that Harman’s statement is correct, if you have doubts that could account for even just 20%, you must declare Dzhokhar innocent. This is the standard of American law.

With this in mind, the theory of our defense is this: Nate Harman is not lying, but mistakenly thought he saw Dzhokhar at Sean Collier’s car when he did not. Now, let’s look at why.

The Conditions of the Identification

This still from Exhibit 725 shows the moment Harman passed the figure at Collier’s car — and how impossible it is to make an ID from surveillance footage alone.

To truly understand what Harman saw, first we need to put ourselves in his shoes. There is certain information known about him from the transcript: while testifying, he was twenty-four, making him twenty-two in April 2013. He’s got a bachelor’s in mathematics from UMass Amherst, and at the time was in the first year of a mathematics PhD program at MIT (189-190). Then, prosecutor Weinreb asked for specifics:

Q. Were you in your office on the night of April 18, 2013?
A. Yes.
Q. What were you doing?
A. I was there working on a problem set that was due the next day.
Q. Approximately what time did you leave?
A. After ten. Maybe 10:20. Once I noticed it was after ten, that’s how I knew it was time for me to give it up and go to bed. (191)

This is important information that was never explored more fully. If he was working until past ten at night, how long was he at it? If he’s working on complex math problems for several hours — in a PhD program at MIT, widely known to be one of the most academically rigorous schools in the country — wouldn’t that cause at least some degree of cognitive and visual fatigue?

In discussing these possibilities, my father and I kicked around the idea of consulting a human factors expert, as would be standard in a court case. Unfortunately, such things are expensive, and we eventually shelved the thought. However, I was able to find a case study that should shed light on the phenomenon of eye fatigue that Harman was likely experiencing at the time he rode by Collier’s car. In a 1987 paper entitled “Near Work, Visual Fatigue, and Variations of Oculomotor Tonus,” D. Alfred Owens and Karen Wolf-Kelly performed an experiment on a group of students, ages 17-22 (a range that includes Harman’s at the time of the incident), measuring their visual acuity before and after they spent an hour reading text at close distance. While we don’t know how long Harman was at his math problem set, I think it’s safe to assume it was at least an hour. We also don’t know whether he was working with hard copy or on a computer, but according to the study, the differences are negligible.

The findings were compelling. I’m not an ophthalmology expert, so I would welcome an informed opinion or perhaps a more up-to-date study to reference, but my interpretation of the experiment is as follows. When done reading, there was a significant shift toward nearsightedness in subjects immediately afterward. This was measured 15-20 minutes after the end of the work, which by Harman’s own testimony would coincide with the time it took him to stop work on the math problems, get his bike, and pass Collier’s car. In fact, here are the conditions of the drive-by as described by Harman:

Q. Was there anything unusual about the cruiser that you noticed?
A. When I went by, there was — the front door was open, the driver’s side door, and there was someone leaning into the driver’s side door.
Q. What do you mean by leaning into it?
A. I mean, they were sort of bent around the waist with their head and sort of the upper part of their torso inside the police car as I was coming up, and then they sort of stood up, startled, when I rode my bike by them.
Q. Okay. So explain that. So you’re riding down the path. And how close to the back of that person who you saw did you come?
A. Within five or six feet. (192-193)

The experiment also found that there were greater changes in subjects who were initially looking at a distance farther away than three feet — say, someone watching the path in front of him while riding a bike — who then shifted to focus on an object introduced into their field of vision — say, someone leaning inside a police car. At this far distance, the shift was an average amount of .93 diopters. In layman’s terms, this would shift someone with perfect 20/20 vision to close to 20/60 vision. If you’re wondering what the difference is, see the chart below.

A normal person can read the “20/20” line at 20 feet with no difficulty. Someone with 20/60 vision can read something between the “20/50” and “20/70” lines at 20 feet with no difficulty.

In the experimenters’ own words: “The present findings suggest that changes of tonic accommodation contribute to blurred vision at distance”(6).

In short, focusing on those math problems for a prolonged period of time likely had an impact on Harman’s ability to perceive objects, even at the close estimated distance, in his own words, of “five or six feet.” This estimation doesn’t even take into consideration that this effect may stack if the near work time extended past an hour, nor the possibility that Harman may not normally operate at 20/20 vision, nor whether added mental fatigue could further affect his ability to interpret the images his eyes were sending to his brain.

But enough about Harman’s mental condition when he saw the person at Collier’s car. Let’s talk about the physical conditions in which he made the identification. We know from security footage that while the courtyard is, in Harman’s description “fairly well lit”(191), it was also night time and the street lamps cast an artificial hue. The footage also shows that Collier’s car was parked in between two street lights and therefore both it and Harman were in shadow when he passed. (See the included still above from Exhibit 725 for evidence of this.) Additionally, we know that until Harman came upon the car, he could only see “the back of that person” who “sort of stood up when I rode by them,” yet “we made eye contact” and Harman got a “pretty good”(192-193) look at his face. The question Dad wanted to answer is: is this actually possible, and if so, how far away was Harman when they made eye contact if he was in motion and didn’t slow down as he passed, as the footage shows?

For this, we had to enlist the help of my arch-nemesis: math.

This photo, taken by me on January 22, 2016, marks the approximate location where Nate Harman biked into frame on the security footage entered into evidence.

Back in January, I visited the courtyard at MIT to take some measurements. After studying the surveillance video with my father, we determined where Harman first entered the frame. We wanted to know exactly how much ground he covered between appearing on frame and disappearing around the corner. Full disclosure: I used my iPhone’s fitness app and walked the distance, so I can’t exactly claim to be using high tech gadgetry here, but it tends to give fairly decent readings.

In all, I came up with .1 miles between Harman’s appearance and disappearance, or 528 feet. We compared this to the elapsed time on the surveillance video, 28 seconds. I have to bow to my father’s math on this, but we estimated that this means Harman was going about 13 miles per hour, or 19 feet a second. Dad has since queried a bicycle enthusiast who says going this speed is nearly glacial, so it’s possible our calculations might be off somewhere. We didn’t take into consideration that the surveillance footage might have been slowed down, for instance. (I’d welcome opinions from people who might know more about bikes or video footage than we do.) Regardless, I think it’s safe to assume that 19 feet a second is the very slowest Harman could have been going, based on the available evidence.

If we say that Harman was indeed 6 feet away from Collier’s car when he passed, and was covering 19 feet a second, this would put him a total of 19.9 feet away from Collier’s car after one second, given the angle. With that in mind, how far would he have to turn his head to maintain eye contact with the person at the car for that additional second? For the answer, see the graph below.

If you went back in time and told tenth grade me that in 15 years I’d be doing geometry to save someone’s life, I would have laughed in your face. And yet, here we are.

According to my calculations, if Harman was facing front as he biked — which is ostensible for bicycle operation, plus the fact that he was headed toward a converging traffic pattern — to maintain eye contact with a person at Collier’s car, he would have had to rotate his head a total of 162.3°. This angle will only get sharper as he continues to move — if he is going at 19 feet a second, every tenth of a second he is getting 1.9 feet farther away. That seems like an awfully sharp angle for someone who didn’t slow down, wobble, or immediately veer into oncoming traffic.

In fact, I tried to find evidence to support the idea that he actually could turn his head at an angle like that, and was hard-pressed to find any. The scientific consensus seems to be that to turn the head beyond a normal range of motion (45°), significant torso and shoulder muscles come into play to aid the neck. A 2002 study in the Journal of Orthopaedic Research measured the neck’s axial rotations of 30 able-bodied young adults, ages 19-25, while restricting movement so that they would not use their trunks and shoulders to help them. The experiment found that among the men, the average degree to which they could turn their heads to the right using only the head and neck muscles was 79.8°. This suggests that in order for Harman to angle his head to maintain eye contact with someone at Collier’s car, he could have to turn so much of his torso that he would not have been able to maintain control of the bicycle. However, I’m not an orthopaedic specialist either, so I encourage feedback from someone who might be more informed.

To sum up this section, it’s clear that between Harman’s mental condition when he did the ride by and the physical impossibility that he could have seen the person for more than a split second, his assertion that he got a “pretty good” look is doubtful. And to reiterate, in order for Harman to have looked back at all there must have been something about the scene that warranted closer inspection. But according to his own testimony, after the figure looked up, “I just laughed, actually. I thought I just startled him and I kept going”(195). This means that he wasn’t taking the situation seriously and his corresponding memory will be quite superficial. And in fact, his language supports this idea.

Harman’s Own Statements

As previously stated, Harman’s descriptions of the person he saw were very general until it became time to identify Dzhokhar in the courtroom. My father had a relevant legal definition to give regarding the use of phrases like “I think” and “I guess”:

“THINK/THOUGHT” = A belief about which the witness is not certain.  The witness does not want to lie so he says that he could be wrong and if so he does not want to be in trouble.  As a matter of law this proves nothing.  “GUESS” = to form an opinion from little or no evidence.  Again, as a matter of law this proves nothing.

With that in mind, let’s count the number of times Harman uses statements like this when he is recounting the person he saw at Collier’s car. How did he describe the person’s race?

I thought he was white. (194)

How about his height?

So I would guess maybe — not particularly short, but maybe five-eight? I don’t know. I’m not good at judging that. (194)

Any distinguishing features?

I remember thinking he had a big nose, but nothing beyond that really. (194)

With the legal definition of such things in mind, these statements seem extraordinarily weak. Harman is hedging his bets on these statements. Even his judgement call on height is suspect when he already said he saw the figure “sort of bent around the waist with their head and sort of the upper part of their torso inside the police car as I was coming up, and then they sort of stood up, startled, when I rode my bike by them”(192). This means that Harman did not even see the figure at full height until he was already passing by. As just discussed, he would not have reasonably been able to maintain eye contact long enough to make any kind of accurate value judgement on height — hence the uncertainty of his statements.

However, the prosecution made the assertion that it was possible for Harman to make a valid identification based on these inconclusive remarks, as if the formula was white + tallish + big nose = Dzhokhar Tsarnaev. They pulled up pictures of him from that night, captured by an ATM camera, and asked Harman to determine whether that was the person he saw.

Exhibit 758 – The nose in profile is striking, but…

Harman’s response?

That definitely could have been the person I saw that night. (196)

Not definitely was — definitely could have been. Meaning he is not at all sure. This is not exactly surprising, considering how many young white males of above average height and prominent noses might choose to avail themselves of MIT’s campus on a daily basis. Additionally, the timestamp on the full surveillance footage places this around 11:18 pm, not even a full hour after Collier’s murder, and yet there is a particular prominent feature of Dzhokhar’s face that Harman neglected to mention.

Exhibit 761 – I don’t suppose a guy can grow a stress beard in less than an hour, can he?

He has quite visible facial hair. Nowhere in Harman’s testimony does he make mention of the person at Collier’s car sporting any such thing, and yet here I would dare say it’s a more notable feature than his nose.

Still, the prosecution persisted, attempting to link Dzhokhar’s sweatshirt to the clothing of the figure Harman saw at the car.

He was wearing a dark sweatshirt and a hat. Yeah.
Q. Did you notice, did the sweatshirt have anything on it or was it just plain?
A. Well, so I saw — well, as I was coming up I just saw the back of his sweatshirt, and then when he turned around there was the door there, but there was something on the front, some sort of — so the sweatshirt itself was dark and there was a lighter thing on the front, but I didn’t actually see what it was. (193-194)

When asked about the sweatshirt shown in the ATM footage, Harman’s answer is admittedly not great for Dzhokhar:

Q. The design on the front of the sweatshirt, is that consistent with what you saw that night?
A. That’s definitely consistent with what I saw. (196)

However, it is interesting to note that when asked about the hat Dzhokhar is wearing in the ATM footage, Harman does not identify it as the hat he saw the figure at Collier’s car wearing:

Q. What about the — you said the person was wearing a cap of some kind. Is this what he was wearing?
A. That’s not the hat that I remember seeing. I remember seeing a, like, more knit hat that you pull over your head.
Q. So the thing that’s more like a knit cap that you pull over your head, did it have a bill?
A. Not that I remember, no.
Q. Okay. And was it the same height on the person’s head all the way around, like an ordinary knit cap?
A. I don’t know.
Q. It was just looked like a knit cap?
A. Just a knit cap, yeah. (196-197)

The knit cap is a mystery I’ll address in a moment, but for now let’s focus on the sweatshirt. Although he claims the Adidas logo on Dzhokhar’s sweatshirt is “consistent” with what he saw at Collier’s car, let’s recall his description of the identification. Harman says he saw someone wearing “a dark sweatshirt” that had “a lighter thing on the front,” even though “when he turned around the door was there”(193), ostensibly blocking most of it from view. As I’ve previously discussed the angle Harman would have had to turn with his neck in order to maintain any more than the barest glance in this person’s direction, it sounds as though he didn’t get any kind of definitive look at this clothing at all. Furthermore, “a lighter thing on the front, but I didn’t actually see what it was”(193-194) is so vague it can hardly constitute a positive ID to Dzhokhar’s sweatshirt. Even a logo on the front or blue and yellow lettering would go much farther than that, but that’s not what we have here. Considering Harman’s likely mental and physical conditions when he made the pass by, is this an effective enough description?

I’ll let you decide.

An Alternate Theory

In cases like this, there often comes a point when a jury would wonder — if it wasn’t the defendant, then who could it be? This tends to happens despite that in a court of law, the defendant does not have to prove his innocence, only provide reasonable doubt about his guilt. If you have reached this point and are not 80% certain that Dzhokhar was the person at Collier’s car, by all intents and purposes the government has not reached its burden of proof.

But even so, perhaps you too are wondering who Harman saw at Collier’s car, if not Dzhokhar. By all the evidence presented, there could be any number of Caucasian individuals matching Harman’s description walking the streets of Cambridge, Massachusetts — but there is other evidence to suggest who it could have really been.

First, let’s return to Harman’s statements. A white, young, thin, somewhat tall (though difficult to tell, since he was leaning inside Collier’s car) male with a big nose? That could be Dzhokhar, but it could just as easily have been someone else, particularly someone who happened to share all of his genes.

Perhaps his brother, Tamerlan?

I don’t think I have to show scientific evidence to prove that brothers tend to bear physical resemblance to each other. I’ll let the photo speak for itself.

There is also tangential evidence from other testimony that backs up the notion that Tamerlan was Collier’s shooter. Chris Donahue of the Massachusetts State Police was called to testify about fingerprints recovered from the shootout scene in Watertown. Here is what he had to say about the Ruger P95, the weapon that killed Officer Collier:

I identified a partial palm print and a partial fingerprint to Tamerlan Tsarnaev on the magazine, and it was the left palm and the left middle finger of Tamerlan Tsarnaev. (157)

This was during the direct examination by prosecutor Weinreb, and on cross, Judy Clarke added the following:

Q. The magazine that you printed and found Tamerlan Tsarnaev’s prints was inside the Ruger pistol, is that correct?
A. When it came to me, it was separated. However, the magazine came with that Ruger. So it was possible that that magazine was inside that firearm.

[She calls up a photo of the magazine]
Q. … Does that appear to be the magazine?
A. Yes, it does.
Q. That you tested?
A. Yes, ma’am.
Q. And found Tamerlan Tsarnaev’s prints on it?
A. Yes.
Q. And not Jahar Tsarnaev’s prints?
A. Yes.
MS. CLARKE: Thank you. I have no further questions. (159)

So Tamerlan’s were the only prints on the magazine for the murder weapon, and it’s likely said magazine was recovered from inside the gun — meaning he was the only person to handle the Ruger. I also believe it’s common knowledge that a gun needs to be discharged by a person wielding it physically, and that it’s impossible for Dzhokhar to have fired the gun with his mind. Furthermore, it’s unlikely both brothers had a hand on the weapon at the time it was fired, despite news sources that like to refer to the murderer of Collier as “they.” Harman is quite adamant that he only saw one person.

There is also the testimony of the man Tamerlan carjacked shortly after the killing of Sean Collier. Dun Meng, a 26-year-old man who happened to be stopped in his Mercedes SUV, suddenly found himself with Tamerlan in his passenger seat and a gun pointed at him. According to the record, here is an excerpt of their conversation:

And then he pulled a magazine out — a magazine with a gun out to show me there’s bullets in the gun. So he told me that, “You know I’m serious, so don’t be stupid.”
Q. After he pulled the magazine out and showed it to you and told you to be — that he was serious, what did he say?
A. After that he asked me, “Do you know the Boston Marathon explosion?” I said, “Yes, I know.” And then he asked, “Do you know who did it?” I said, “No, I don’t.” He said, “I did it, and I just killed a policeman in Cambridge.”(17)

According to Meng’s testimony, Tamerlan confessed to not just the bombing but also Collier’s murder. I’ve discussed this with my father, and he explained that while usually remarks like this made out of court fall under the umbrella of hearsay, in this instance it can be admitted as an exception. There is something called a declaration against penal interest — that in this case, in my father’s words, the statement “can be considered to be highly reliable, because most people who aren’t insane don’t come out and admit to murder for which they can go to prison or be executed.”

Now we have forensic evidence that Tamerlan handled the Ruger, and a witness who testified that Tamerlan confessed to killing a police officer in Cambridge. With this in mind, let’s return to Nate Harman and his statements about the figure he saw at Collier’s car. Remember his description of the person’s clothing? The “dark sweatshirt,” the “lighter thing on the front”(193)? Well, I happen to have a shot of what Tamerlan was wearing the night of April 18th, taken from security footage of the Mobil station where Dun Meng escaped captivity.

Still from Exhibit 748 – Tamerlan’s outfit the night of April 18th: dark jacket, light front.

Tamerlan’s clothes could also match Harman’s description just as much as Dzhokhar’s, if not more so. Then, of course, there’s the matter of the knit cap.

What knit cap, you ask?

Exactly. There is no knit cap.

None of the evidence recovered from the crime scenes included a knit cap. In none of the available surveillance footage is either brother wearing a knit cap. Moreover, when the prosecution questions his friend Stephen Silva, they assert that Dzhokhar once owned a Boston Red Sox knit cap, trying in the vaguest of ways to tie it to Harman’s statements. This is such a tenuous association as to be laughable in the face of no other corroborating evidence.

However, I do have a theory for why it came up at all, because what’s Dzhokhar’s other most recognizable feature, aside from his nose and a college kid goatee? The one thing almost everyone in every media article written can’t refrain from commenting on?

Dzhokhar Tsarnaev
Say what you like about him, but you can’t deny that he has some serious hair.

Doesn’t it seem strange that during his ride by, Harman doesn’t remember Dzhokhar’s wavy mop of hair? It’s arguably his most noticeable characteristic. Dozens of speculators have harped upon it since day one, sometimes ominously likening him to a member of a jihadist boy band. If Harman really saw him, how on earth could he possibly have missed it?

Well, if a knit cap covered his head, Harman wouldn’t remember his hair. Of course. And if Harman, in a split second peek, eyesight weakened by fatigue, saw someone else, someone in a dark jacket and a light shirt with shorter, close-cropped hair — perhaps he could mistake that for a knit cap.

Especially if it was at the prosecution’s suggestion.

The Phenomenon of False Memory

This brings us back to the quote I gave earlier from the Innocent Project, about how 70% of wrongful convictions overturned with DNA evidence include eyewitness misidentification. If you like this blog, but you’re not familiar with the Innocence Project, you might want to check it out. The Innocence Project is an organization that was founded in 1992 to help with the exoneration of the wrongfully convicted in the United States, and since then it has expanded to include many facets of criminal justice reform. And this might be controversial to say about one of the most infamous terrorism trials in American history, but Dzhokhar’s case has all of the Innocence Project’s listed hallmarks of a wrongful conviction. I’ll get into the others at a later date, but right now, let’s focus on the one relevant to this post: eyewitness misidentification. How does it happen and why is it so common in cases of wrongful conviction?

The first thing to remember is that human memory is an incredibly fragile thing. I said previously that these eyewitnesses aren’t usually lying; they truly think they saw the defendants committing the crimes. This is due to a phenomenon known as false memory. In an interview for Penn State’s Presumed Innocent? The Social Science of Wrongful Conviction, Dr. Nancy Dennis, a psychologist whose specialty is memory-related issues, defines false memory as the following:

A false memory is a memory for something that has never happened in the past. So, for example, me thinking that my husband told me to stop at the grocery store yesterday and buy orange juice, when in fact he didn’t. Perhaps he told me to stop at the grocery store and buy milk. … I honestly thought my husband told me to get the orange juice instead of the milk. … So a false memory is when an individual believes it to be so, about their own life or about the world in general.

To return to eyewitness misidentification and Nate Harman’s testimony in particular, it’s not that the witnesses are being deceptive, but they truly believe to the best of their knowledge that they are telling the truth. However, they are misremembering the facts. Why is this so prevalent a phenomenon? To answer this question, Dr. Dennis explains the process of memory retrieval:

Retrieval of our memories aren’t a videotape, it isn’t a simple replaying of the past experience. We reconstruct them. Every time we retrieve a memory, it’s a reconstruction of a past event. So oftentimes when we’re reconstructing, there could be room for error. We’re pulling the visual information from here, the auditory information from here, and again, reassembling this memory. And if we pull incorrect information from any one source, it could be recombined into an incorrect event.

Herein lies the problem when it comes to eyewitness testimony in court. While it’s likely that eyewitnesses to crimes saw or experienced something, throughout the process of remembering, certain data is easily lost, and easily replaced by false information. In Nate Harman’s case, he very likely saw someone at Sean Collier’s car the night of April 18th. The corroborating evidence suggests this is true, and Harman himself is reticent enough to suggest that even he’s not sure of what he saw. He wants to be helpful, but he also doesn’t want to lie. There’s no maliciousness involved. So some of his information is likely correct: for instance, there was only one person at Collier’s car. He was bent inside the car, and he was startled by the approach of an onlooker. The rest of it, however, starts to become questionable.

Memory isn’t as simple a process as we like to think, and therefore is vulnerable to corruption.

Dr. Dennis also explains that false memories tend to have an element of truth to them:

False memories are typically based upon some sort of truth as well. So the event occurred — my husband could have told me to go to the grocery store, but I’d forgotten some of the items. And in trying to recreate that item list, oftentimes people create false memories with items or information that’s similar to the truth, to what actually happened. But again because of the forgetting that occurs, when you’re trying to reconstruct the memory, similar information looks like the truth or feels like the truth to you. And those types of misinformation or false memories will get inserted into the actual event. And then once you actually remember it, it seems like another memory, and it kind of perpetuates itself from there.

This brings up a lot of questions about the preparation of Harman’s testimony. There was literally no information given about him prior to the trial. In a case that was so notorious, he seemed to materialize out of nowhere right when the prosecution needed him. That does beg the question: how soon after the crimes did he talk to law enforcement, and ultimately, the prosecution team? If he was so unconcerned about the person he saw at Collier’s car that night, did he even put the pieces together right away that he might have witnessed a murder? Or did the prosecution team seek him out months, or over a year later, to ask him what he remembered?

This is an especially pertinent question when one notes that his description is so sketchy until it comes time to identify Dzhokhar in the courtroom. Considering the pretrial publicity of the case, and the fact that Harman has remained in the Cambridge area in the intervening years between the crimes and the trial, it’s likely that for many months, every time he rode his bike past a newsstand or checked a local news station or website, he saw Dzhokhar’s face. And according to Dr. Dennis’s explanation, if the details were to fade about who it was he saw at Collier’s car, his brain could have easily replaced them with ones he saw elsewhere, especially if he was prompted to. (It’s also interesting to note that the most often used photo of Dzhokhar in the media is the one I included above, in which he is clean shaven.)

This is the precise reason false memory is such an important issue for those involved in criminal justice. The way law enforcement works with eyewitnesses to obtain details about crimes is exactly how false memories can be implanted in someone’s mind. Dr. Dennis cites a famous 1975 psychological experiment by Elizabeth Loftus, in which researchers were able to implant false memories in test subjects about being lost in a shopping mall as a child. In particular, Dr. Dennis describes the interview process of these subjects:

…Usually at first glance, people don’t believe these false memories. But after three or four interviews, where the interviewer will say, “Are you sure you don’t remember it? Just try hard and try to think of some details.” By the third or fourth interview, people will actually remember, or start to have these memories. … And these false memories aren’t simply acknowledgement or acceptance of the memory… they actually come up with details. … And of course all these details are false, because the memory itself never happened.

It’s important to note that although in the experiments, the interviewers implanted these false memories deliberately, in most law enforcement settings this done subconsciously. According to Dr. Mark Horswill, a professor of the University of Queensland’s edX course The Psychology of Criminal Justice,  it’s very easy to introduce bias to witnesses, such as when law enforcement shows them a line-up, knowing who the suspect in the line-up is. Dr. Horswill explains:

…The eyewitness might end up choosing the suspect not because they saw them committing the crime, where of course the suspect might be innocent, but because they’ve been subtly “tipped off” by the administrator as to who to pick. The administrator isn’t necessarily doing this deliberately – the cues they’re providing may be involuntary.

For this reason, in recent years certain law enforcement entities have altered the way they question witnesses or show them suspect lineups. In many precincts, administrators of suspect arrays will run a “double-blind procedure,” in which they will have no knowledge of the case. Also, witnesses are often shown suspect photos one at a time, while being warned that the actual suspect’s photo might not be present. Studies have shown that when given “unbiased instructions,” that is, told that the suspect might not be in the line-up, only 33% of eyewitnesses identified an innocent person, as opposed to 80% when the witnesses are not instructed that the suspect might not be present.

Forget what you see on television — suspect line-ups shouldn’t look like this unless you want your eyewitness to finger a potentially innocent person.

Regardless, this is far from a uniform practice, and I honestly have no idea how much of it is done on the federal or prosecutorial level. There is, however, specific evidence in Harman’s testimony to suggest that his statements were coached. In particular, when the prosecutor introduces the surveillance footage of the courtyard, there is this exchange:

Q. Do you recall reviewing a segment of this video that you —
A. Yes, I’ve now seen this video. It’s been shown to me a few times. (195)

Who showed it to him? He didn’t have access to MIT security cameras on his own, and this video was not released to the public prior to trial. Clearly, it was law enforcement, the prosecution team, or both who showed him the footage multiple times and hammered out his testimony from it. However, I must stress that this isn’t strange — all testimony is prepared beforehand by lawyers and their witnesses. Even so, considering the discrepancies in Harman’s statements, it isn’t a stretch to imagine how his vague and inconclusive recollection could have been altered to remember Dzhokhar at Collier’s car — in a knit cap to account for the lack of hair — with just a little nudging. This is especially easy to picture when you realize Harman was desperately needed for the prosecution’s case: without someone to place Dzhokhar at the crime scene, they stood a chance of being unable to convict on Charges Sixteen, Seventeen and Eighteen.

Closing Arguments

The defense has been put on and the evidence has been presented. The only thing left to give is a closing argument. For a recap, let’s recall that in order to convict Dzhokhar of these charges, you need to be 80% certain he was present at the crime scene. Only one witness, Nate Harman, testified to this. Now, in no uncertain terms, here are the reasons to doubt.

Reason to Doubt #1: Nate Harman was visually fatigued at the time of the ride by, and was operating at approximately 20/60 vision when he spotted a person at Sean Collier’s car.

Reason to Doubt #2: The physical conditions of the ride by dictate that Harman could not have seen the person for more than a second, due to the speed he was traveling and the neck angle he would have needed to maintain to achieve continued eye contact. It was also night time with artificial lighting, and the pass by was made in a pocket of shadow.

Reason to Doubt #3: Harman’s own statements about the figure were both unsure and vague, relying on phrases like “I think,” “I guess,” and “I don’t know,” which legally mean nothing. His description was so general it could easily fit thousands of individuals living in the Boston/Cambridge area in general, and Dzhokhar’s brother Tamerlan in particular. His clothing description matches Tamerlan just as well as Dzhokhar, if not more so.

Reason to Doubt #4: Harman missed key details about Dzhokhar’s actual appearance, including the notable length of his hair and his beard. He also mistakenly thought the person was wearing a knit cap when none was to be found in any of the other evidence.

Reason to Doubt #5: The only fingerprints recovered from the murder weapon belonged to Tamerlan.

Reason to Doubt #6: Tamerlan confessed to the crime to the man he carjacked, Dun Meng. This statement is on the record because it is a declaration against penal interest, which can be considered highly reliable, and therefore be given weight by the jury.

Reason to Doubt #7: The phenomenon of false memory is common and easily invoked, particularly in any criminal justice proceeding. Due to overwhelming pretrial publicity, Dzhokhar’s face was featured in the media for many months, which could have been viewed by Harman any time he left his home or checked a news station or website. When prompted by law enforcement or the prosecution team, Harman could have substituted missing data in his memory about the figure with knowledge he had of Dzhokhar’s appearance from other sources.

From here, I leave you to deliberate. Is that enough for you to convict?

It’s not enough for me.

Sean Collier’s death was a horrible crime, and it left a void in the lives of everyone who knew him and in the community at large. Regardless, I would hope that as an officer of the law, he would not want the wrong person implicated in his death. Dzhokhar didn’t kill him. He wasn’t even there to help — not based on the available evidence.

And if you’re reading this and agreeing, then perhaps it’s time we face a very complicated, very uncomfortable truth: this isn’t just a case in which the defendant may not deserve a death sentence, nor is it only one in which he may not be legally culpable due to duress. This is a case in which the defendant may be actually innocent of many of the crimes for which he was convicted. This is a wrongful conviction case, and I’m only getting started treating it as such. There is much, much more to talk about.

For instance, perhaps you might be thinking the charges regarding Sean Collier all concern the Ruger P95 handgun. According to the indictment, it doesn’t matter that Dzhokhar wasn’t seen at Collier’s car the night of April 18th — simply possessing the firearm and handing it off to Tamerlan is enough to tie him to the crimes. While this was the case until the Johnson II ruling, it certainly isn’t now. Although, if he obtained the gun like the government claims, even if it was for his brother, surely this ties him to the conspiracy plot to commit the bombing and all related offenses? Which is true, it would.

Unfortunately for the prosecution, evidence suggests he never obtained the Ruger at all.

More on that next time, in Part Two.

Works Cited

Eyewitness Misidentification.” The Innocence Project. 16 March 2016.

Ferrario, Virgilio F., Chiarella Sforza, Graziano Serrao, Gianpiero Grassi and Erio Mossi. “Active range of motion of the head and cervical spine: a three-dimensional investigation in healthy young adults.” Journal of Orthopaedic Research 20.1 (2002): 122-129.

Owens, D.A. and K. Wolf-Kelly. “Near work, visual fatigue, and variations of oculomotor tonus.” Investigative Ophthalmology & Visual Science 28.4 (1987): 743-749.

Pennsylvania State University. “Nancy Dennis on False Memories.” Online video clip. Coursera, 9 July 2014. 16 March 2016.

United States District Court, District of Massachusetts. “Closing Argument by Ms. Clarke.” Jury Trial – Day Forty-Three. 2015. PDF.

United States District Court, District of Massachusetts. Grand Jury Indictment of Dzhokhar Tsarnaev. 2013. PDF.

United States District Court, District of Massachusetts. “Testimony of Christopher Donahue.” Jury Trial – Day Forty-Eight. 2015. PDF.

United States District Court, District of Massachusetts. “Testimony of Dun Meng.” Jury Trial – Day Thirty-Two. 2015. PDF.

United States District Court, District of Massachusetts. “Testimony of Nathan Harman.”  Jury Trial – Day Thirty-One. 2015. PDF.

UQx Crime101x The Psychology of Criminal Justice. “The Line-Up: Reducing Bias.” Online video clip. YouTube, 9 November 2014. 16 March 2016.

Valencia, Milton J. “Middlesex DA hedges on trying Tsarnaev for officer’s killing.” The Boston Globe 17 January 2016.

And special thanks to my father, Tom Frizzell, who was the architect and driving force of this post. It would not have been possible if he had not spent many hours analyzing the case materials on his own time so that I could have a defense lawyer’s perspective.


26 thoughts on “Who Killed Sean Collier? Part One: The Bike Man

  1. Anthony Grassi, detective for the Cambridge police department testified about the Collier’s murder crime scene AFTER Nathan Harman’s testimony. Curiously Mr. Grassi testified that they were unable to find a witness to the crime.

    Here is a portion of his testimony:

    Mr. Winereb. What did you do after searching for evidence?

    Anthony Grassi. After we searched for evidence, I gave all the information to Sergeant McHale who was in charge of the crime scene. Then myself, Detective Mike Regal, Donna Mahoney and Michael Logan, we entered the Stata building, and we started at the top floor and worked our way down trying to find any witnesses who might have seen something that happened out front.

    Q. Were you able to find any?

    A. None.

    Q. While you were interviewing, or looking for potential witnesses with these other officers, was someone guarding the crime scene?

    A. The crime scene was covered by Sergeant McHale who had control of it. We had patrol officers stationed on the outside of the yellow tape, and Sergeant McHale assigned an officer as a scribe to document who’s been entering and exiting the crime scene.

    Q. When you returned after your search for witnesses, was all the evidence still in place, right where you had left it?

    A. Yes, it was.

    MR. WEINREB: Thank you. I have no further questions.

    MR. MELLIN: Your Honor, may I one second?

    MR. WEINREB: Oh, I’m sorry.

    (Counsel confer off the record.)

    MR. WEINREB: Thank you.

    THE COURT: Done? Okay.

    MR. WATKINS: No questions.

    THE COURT: You may step down.

    (The witness is excused.)

    You will note that the prosecution never came back nor did the defense for that matter and ask if in the end they were able to find a witness by the name of Nathan Harman or any other witness for that matter.

    The question that everyone should ask is how Nathan Harman materialized?

    My take on this is that the FBI and the prosecutors were not able to prove the Tsarnaev brothers killed the MIT Officer so they needed to create a witness just like they needed a witness (Dun Meng) to incriminate the Tsarnaev brothers for the bombing of the marathon.

    After working diligently on this case for the past 35 months I firmly believe that the Tsarnaev brothers are victims as we all are of the Boston marathon bombing and its aftermath.

    1. Hi Josée!

      That is an excellent catch! It definitely backs up the possibility that Harman was not contacted until some time after the crime, when publicity likely already had an impact on his memory. From what I understand about the scientific research, time elapsed between when a person experiences an event and when they are questioned doesn’t make a difference — they could have interviewed Harman the next day or a year plus later and he still would have been susceptible to the false memory phenomenon.

      I did also think it strange that the prosecution was unable to find any other witnesses to corroborate Harman’s story. I’ve been to that particular courtyard a couple of times recently and I’m familiar with that general area of Cambridge. I really cannot stress how open and public that courtyard is. Even at nearly 10:30 at night, the surveillance footage showed several people walking or biking along it, and I can personally attest the spot where Collier’s car was parked was extremely visible from the street. (This is, coincidentally, Main Street in Cambridge, which will take you directly over the bridge into Boston if you keep going. It’s a VERY main artery of traffic.) It is surprising that out of all the potential for eyewitnesses, the prosecution was only able to find Harman, whose actual testimony was quite weak. When you look at the charges and how the prosecution crafted this part of the narrative, it becomes rather clear how much contorting the they had to do to tie Dzhokhar to some of these crimes. Call me old-fashioned, but I don’t think prosecutors should have to jump through flaming hoops to obtain a conviction… but this prosecution team was especially acrobatic.

      Edit: I also wanted to mention that while I float the possibility of Tamerlan as an alternate suspect, I would not be able to convict him either if the sole evidence was Harman’s eyewitness testimony. There’s simply too many tallish white guys with prominent noses in Cambridge who might wear dark sweatshirts for me to be sure that’s who Harman saw.

  2. Thank you for this Heather! ” It’s important to understand why the government crafted these charges against Dzhokhar the way they did, and what exactly they put forth in order to get the convictions they wanted.” Well said. This alone says a lot, Just as they accused Dzhokhar of “tradecraft” for smashing his cell phones, these charges are the “tradecraft” of bloodthirsty prosecutors.

    I’d like to add that you don’t have to be an expert or specialist to know that Nate Harman did not see what he says he saw. You only have to be a person who has rode a bicycle fairly fast a few times. You cannot look away for more than a second or two or you can lose control of the bike. Your balance depends on looking ahead. Nate likely saw the police car and may have saw a person close to it, but nothing else. That person could have been anyone.

    I believe Nate was recruited and coached by the prosecution at length, to get his story straight, not only to help convict Dzhokhar, but to be sure he would get the death penalty. They HAD to find a witness who would cooperate with them. It’s also odd no one questioned him as to whether or not he saw Collier in the car and whether or not he could see Collier covered in blood. How could he know such details about Dzhokhar, but didn’t hear gun shots or see anything inside the police car.

    The 911 call of loud bangs came in at 10:20, but the tiny figures did not appear until 10:24, suggesting that Collier was already deceased. Plus the 911 call was made by a person inside the Koch building, why weren’t they asked to testify about what they heard or may have seen?

    I am so glad you are seeing the deceptive and coercive methods the prosecution in this case has used, not just with Nate Harman but with many witnesses in this case,
    including Steven Silva.
    I would like to send this post to David Patton and Gail Johnson, who will be the two new lawyers for Dzhokhar for the appeals. Is that alright with you? It is these small details that are so important in this case, and I’m sure you will find many many more. “This is a wrongful conviction case, and I’m only getting started treating it as such.” This is music to my ears. Thank you again Heather!

    1. Hi Julie! It’s great to hear from you again and I hope you’re doing well.

      First — yes, please share this with Dzhokhar’s attorneys if you think it will be helpful. I’m honored. I welcome the sharing of my posts with anyone who might benefit from them.

      Second, I agree a lot of the details about the timeline of Collier’s death and Harman’s piece of the puzzle are confusing. I spent a lot of time reviewing the video footage trying to determine when the gun was fired and whether Collier was killed before or after Harman passed. I thought for awhile that perhaps the figure at Collier’s car was holding him at gunpoint, and when Harman startled him, Collier tried to reach for his weapon and the person shot him. The testimony about Collier’s autopsy said he was shot several times in the hand as well as the head, suggesting that maybe the shooter’s original intent wasn’t to murder him, but to keep him from getting his weapon. However, since Harman doesn’t remember gunshots and the video footage is so bad, I’ve abandoned trying to suss that out for now. There’s just not enough information, and none of it is relevant to Dzhokhar’s involvement with the crime, since I think by now it’s pretty clear he was not at the car.

      Also, I had a feeling you would appreciate my findings. 🙂 One of the worst things about wrongful conviction cases is that the methods that cause them aren’t even radical — although yes, I do think the prosecution’s overzealousness played a large role in this one. However, their procedures are not even out of the ordinary. So much of America’s criminal justice system is set up to allow for it with shocking ease. It’s even scarier to me that Dzhokhar is not an outlier in that way — that this was bound to happen to him from the start. That’s something that weighs on me very heavily, especially as someone who has so many students like him. That’s why I’m so determined to stop it, starting here.

      Thank you again for all your kind words and continued support!

  3. Heather, I am so thrilled at reading your conclusions. You and your father are a gift to our side, supporting Dzhokhar. I have been writing the blog writingthewrongforjahar.com for quite a few months now. I do not have the legal background your father shares with you so I am happy beyond words to read your posts. I am in complete agreement with all you say here. Well done!

    1. I’m so happy to hear that! I really can’t put into words how much I appreciate it. I’m also extremely lucky to have my dad at my disposal — I wouldn’t have anything near the understanding of the case that I do without him. He has really dived into reviewing the evidence with me these last few months and I’m so grateful. I really hope my posts have been able to give a new perspective on the case and help those who know justice was not served.

      Thanks again and stay tuned! There is much more I plan to discuss.

  4. Heather, my admiratons to you and everyone who has been working diligently on this case to shed the light on the innocence of the two brothers. Looking forward to reading part two! I am sure, a time will come when the jurors will be ashamed of so unquestionably following the prosecussion’s path and sending an innocent soul to death.

    1. Hi Antonina,

      Thank you so much for your kind words. It always means so much to me to hear that readers are appreciating the research and my posts. I’m firmly of the belief that in situations like this, knowledge is power.

      While at this point I still think the evidence points to Tamerlan as being an active member of the crimes, I assure you I am dedicated to only telling the truth as I see it — if I uncover evidence to the contrary, I will certainly share it. However, I am forced to craft the narrative to fit the evidence, unlike the prosecutors, who crafted the evidence to fit their narrative. Still, I am so blessed to have so much support and appreciate that a dialogue can be had over differing of opinions, especially at a time when our country is so polarized politically.

      I also do feel bad for the jurors, who I have thought about as I’ve gone through the evidence these past several months. At first it was easy to be angry at them for coming to the verdict they did. However, the more I learn about both the death penalty system and how the prosecution crafted this particular case, the more I think the jurors were not at fault — they were only operating on what they knew, with extremely prejudicial information and in extremely prejudicial circumstances. They will have to live with their decision for the rest of their lives, something that will likely become increasingly difficult for them as this case is hotly contested in the appeal phase.

      Again, thank you so much for commenting and giving your support. I am eternally grateful for having so many great readers. My father and I are already working on part two, so stay tuned. 🙂

  5. This is really so well written. There are so many unanswered questions. It’s great you are bringing them to light. Thank you!

    1. You are very welcome, and thank you so much for taking the time to tell me so. It’s my hope that when I’m done, there will be a lot fewer unanswered questions. 🙂

  6. I must admit I am new to your posts but now new to this case. I commend you on your fantastic writing. I’ve read many blogs but have never read one that goes into full detail of all the defaults of this Tsarnaev trial, and believe me there were plenty. Thank you Heather for your dedication and I will be checking out Part 2 for sure. Looking forward to it….There is so much work to be done to expose the truth of this case…that there was no evidence against Jahar to give him a guilty verdict… Let alone death.

    1. Hi Lincoln,

      Thank you so much for taking the time to stop by and comment. I am always happy to hear I have a new reader. Site stats can only tell me so much. 🙂

      One of my biggest goals is to consolidate all the available information about the case and present it in a way that makes sense, so I’m so glad you are finding it helpful. It must be the storyteller in me — there’s a lot of scattered data, but it’s not until it’s all put together that a clear picture emerges… and it’s a troubling one at that. The more people who understand that, the easier it is for something to be done about it.

      Thank you again and stay tuned. There’s much more to come.

  7. Heather,
    You really should be a member of an investigative team supporting Jahar’s appeal lawyers after all the work you do delving into these issues! Thank you so much for your efforts. I know there are many out here who appreciate your work.

    1. Hi Kay,

      It’s so good to hear from you again! I hope you are doing well. Thank you for that amazing compliment. It is my greatest hope that one day something I write can benefit Dzhokhar’s defense team, particularly in the event of a retrial. Thank you again for checking in. I am grateful to have so many kind and dedicated readers!

  8. Dear Heather,I am from Switzerland and have started to look at Dzhokhars case not from the beginning but about 4 months ago I have stumbled across it.I am glad you look at this case with an open mind and heart and with the courage to question when you have the need to do so.When you are stating at the end of this article that you have just started to treat this case as a wrongful conviction case are you only referring to the accusation of Dzhokhar in the involvement of the murder of Sean Collier or are you referring it to the whole bunch of convictions that Dzhokhar has endured?Thanks for your honest response on this question.When you have stated that this leads you to believe that Dzhokhar may be very well innocent of many crimes he was convicted of indicates me that you are in a process of looking at this case in a different way,am I right?I am convinced that you left no stone unturned to come to such a conclusion and your article is very detailed and well documented.I am looking forward to the second part of analyses in regards of the murder of Sean Collier and if Dzhokhar really is responsible for this crime and a big thank you that you are taking the time to dive deeper into that whole issue.I hope and pray that the day will come for Dzhokhar that he will be treated as an american citizen with his very citizens rights that were brushed away from the beginning and through the whole trial in Boston as well.It is my personal opinion that Dzhokhar indeed had not endured a fair trial.

    1. Hi Elisabeth,

      Thanks for reading and taking the time to leave such a great comment! I’m always delighted to hear from readers and am flattered that there are so many people from around the world invested in Dzhokhar’s case. I hope this blog has been helpful to your understanding of it. It’s a very complex and deeply troubling case, and I can only imagine that coming to it four months ago probably presented you with an overwhelming amount of information to absorb. I’ve been researching this case for years and I’m still just starting to understand it.

      To answer your question, yes, my own perspective of the case has shifted since I first began writing about it. This is because due to my research, I’ve had to reevaluate what I know now and what I thought I knew in the light of new evidence. In the current phase in my research, it is my opinion that this is indeed a wrongful conviction case. However, it’s more complicated than what the average person may think of when they hear the term “wrongful conviction.” I have learned that there is a difference between legally not guilty and what those in the wrongful conviction field call “actually innocent.” One can be legally not guilty but still have done a criminal action, but provisions in the law allow for it if special circumstances can be shown. Actually innocent means the person had nothing to do with the crime in the first place.

      My current opinion is that Dzhokhar is both legally not guilty and actually innocent, depending on the charge. Since I have been unable to find any real evidence of his radicalization or his involvement in the conspiracy to commit the bombing with Tamerlan, I am working with the theory that he both knew nothing about the crime beforehand and was compelled to help Tamerlan carry it out via duress. My father has explained it this way: if a person is forced to commit a crime against his will, he is no longer a perpetrator of violence, but an instrument of violence through someone else. I believe the bombing was Tamerlan’s intent and action – he only used Dzhokhar as an instrument through fear. This is a valid, though admittedly challenging, defense in American law, but at the moment it’s the only one that makes sense to me.

      Once we move away from the bombing to the other charges related to Sean Collier’s murder and the events leading up to the Watertown shootout, the evidence gets even thinner. I believe Dzhokhar to be actually innocent of many of these charges, including the murder of Sean Collier (or, rather, the “causing of his death,” as the federal charges are worded).

      More on all of this to come, as I am still researching and working closely with my father while I’m home visiting my parents for most of June. I hope to get Part Two up by the end of the month, fingers crossed.

      Thanks again for reading and for your encouraging comment. The more awareness there is, the closer we come to achieving justice for Dzhokhar and others in positions like his.

  9. Hello Heather, I love your comment above but part of it did leave me with this question (If you have answered it before, my apologies for the redundancy): In light of the fact that Dzhokhar’s backpack did not match in color or appearance to the one said by the prosecution to contain the second bomb, what actions of Dzhokhar’s do you see as proof he did anything that day in support of what may have been a plan of Tamerlan’s? I too used to believe Dzhokhar acted out of fear and threats to participate that originated from his brother but given the backpack issue I now believe Dzhokhar did nothing at all.

    1. That’s okay! I’m not sure if I’ve ever directly handled this question, but if I did it was probably a year or so ago and it deserves a renewed look.

      I’m familiar with the theory that the backpack presented by the government and the one handled by Dzhokhar don’t match. Unfortunately, the evidence I’ve reviewed presented at trial suggests to me that they do. Superficial differences in color and appearance I have seen offered to counter this doesn’t hold a lot of weight with me: the backpack exploded, so it stands to reason the remaining evidence of it is going to be altered due to the force of the blast, plus burning or charring, and that it would look different than the one that was seen carried by Dzhokhar beforehand. Then there are the odds involved. If Dzhokhar had been seen placing it anywhere but the exact blast site I would have a lot more questions. But the odds that he had a different backpack and just so happened to unwittingly put it in the same location as an explosive seem rather infinitesimal — especially when there’s still a wealth of evidence that his brother was planning and carrying out an attack of the same magnitude at the same time. I believe a lot of factors conspired against Dzhokhar that day, and that he may in fact have been operating on little-to-no information about what he was actually a part of, but I have a hard time accepting he could be THAT unlucky.

      That being said, there may still be forensic evidence about the backpack remains that I haven’t seen yet. If evidence of that nature exists that suggests the backpacks don’t match, I would be very interested in looking at it. So far, however, I’ve only seen what my dad calls “eyeball” estimates — people who have looked at the pictures and drawn conclusions without scientific backing. I’m not a demolitions expert, so I can’t trust my own eyeball judgement on that one. They look like they could match to me, and law enforcement experts who testified said they matched, so I haven’t had a compelling reason to doubt that yet. I would welcome anyone with the requisite background in demolitions and forensics to counter it — especially since that could then be presented in a court proceeding as new evidence, which would be supremely useful to the defense. Until then, the claim falls into the realm of speculation, and I can’t give it weight.

      I hope that answers the question for you. Sorry too about being so quiet on the blog. I’m about to start writing the next post in the series about Sean Collier’s murder, so hopefully that will be up by the end of the month. Thanks for your patience and your continued support!

      1. Thanks for the explanation Heather. I am admittedly not an expert in the field required to answer the lingering questions regarding the backpack and I do allow for the fact that objects that explode burn and objects that burn turn black. However, in the picture of the exploded backpack said to have contained the second bomb, the black is so even and uniform that it seems to indicate it is due to black being the original color and not the random result of an explosion and subsequent burning. To my way of thinking, if a light -colored backpack burns to the point of becoming uniformly black, I would have expected it to actually melt and curl etc. This particular pack just looks like a black pack that was slashed, ripped apart, not a light -colored pack that turned black due to burning… I would love to see a backpack the color and brand of Jahar’s test-exploded with a bomb like the one used at the marathon to see what color it is afterwards and how uniformly blackened it may or may not be.

        As far as Jahar being seen in that video placing a backpack anywhere… He is so surrounded by people in that video I don’t see proof he took that action at all.

        I also wonder, knowing how flat his backpack looks, would a pressure cooker even fit and not make the pack look obviously bulky? And it would be hard not to know you are carrying a pressure cooker in your backpack. I wonder that he would let it swing from one shoulder, that he would so casually handle it, shrugging it off instead of carefully setting it down, as the video of Jahar surrounded by other bodies hints he may have done.

        I look forward to your continued posts.

      2. I hesitate to speculate too much about it myself, but was it ever confirmed what the inner lining of the backpack looked like? if the inside was black and the outside was a lighter color, that might account for the uniform look of the remains. It’s unfortunate that the recovered sample in evidence isn’t more intact to explain some of this, I agree. I don’t know enough about blast patterns to say whether an explosion of that kind would be more likely to result in only the inner lining of the backpack being intact afterward. More questions I would love to pose to an expert!

        A test recreation of the backpack would be a great idea as well. I would love to see those results, but again that would have to be handled by a hired expert in controlled conditions. This isn’t the kind of thing I recommend someone try in their backyard, for obvious reasons!

        Another thought I had to test the evidence is to see if anyone ever matched the material of the backpacks purchased by Tamerlan to the material in the remains. I seem to recall the prosecution giving a mockup to the jury, so it seems like they knew what model it was, although I can’t remember offhand if any testimony was given about it. I don’t think the prosecution would be careless enough to do that without being confident they knew the exact kind of backpack it was (that sort of error would certainly come back to haunt them on appeal), but I am curious since it does seem there’s a strange lack of forensics in this case in general. If there are forensic reports about the material in the backpack remains, it could be cross-referenced with the type of backpacks purchased by Tamerlan on April 14th. If the materials are different, that would be compelling evidence to back up the idea that the backpack that exploded isn’t the one Dzhokhar carried. I’m not sure if the information is available to make the comparison, but it was just a thought.

        I do agree that the surveillance footage in front of the Forum restaurant is difficult to see, but the footage beforehand clearly shows him with a backpack and then after the blast he no longer has it anymore. If perhaps he lost it in the ensuing chaos, where did it go? There should be some evidence it was discovered in forensic reports. The FBI had the whole block closed down for a week after the bombing and I have seen reports that they were cataloging debris, so I don’t think it could have gone unaccounted for. And then if his backpack didn’t explode there, what did? How did another assailant get it there? He/she would surely be on camera as well. Many questions are raised that would need to be answered if the backpacks don’t match, and I haven’t seen compelling evidence to account for them yet.

        And perhaps this is a failing of my own subjective perception, but the backpack Dzhokhar carried always looked full and heavy to me. I can even detect that he’s thrown off balance by the uneven weight distribution caused by only having it on one shoulder. I’ve lugged heavy backpacks (full of textbooks) on the streets of Boston for many years, so I can at least attest to how easy it is to have your gait affected by not wearing both shoulder straps, especially on uneven brick sidewalks like Boylston Street’s. While again this type of “eyeball” estimate might not be definitive one way or another, a human factors expert could analyze his body language in the footage and make a more educated assessment. I hope one day to actually tackle his various mannerisms and behaviors in surveillance footage, because I do believe much of what he’s doing in the available footage was grossly misrepresented by the prosecution. With more research, I hope to eventually speak more confidently on the topic, but that’s down the road a little bit.

        Hope this helps!

  10. Actually yes the photos clearly show the white stuffing/foam padding that backpacks are lined inside with was still white. With the bomb being inside the backpack the inner foam stuffing would have been the first to go, not only turning black but also melting if there had been enough fire to turn a light-colored backpack uniformly black. Since the foam stuffing is not only still white but also still fluffy (as anyone who has seen a backpack after the family dog gets ahold of it knows it is), that tells me it not only did not burn but that the outer material did not either. My conclusion then is that this was indeed a black backpack in the store and still black after being ripped apart by a low-grade explosive that exposed the white foam stuffing but not melting/burning it either.

    I don’t think we are actually speculating because we have clear pictures to go by. I think we are just looking with our own two eyes like any investigator would have to do and drawing reasonable conclusions and my conclusion remains that those two backpacks do not match.

    It has been interesting discussiong this with you. Enjoyed the exchange of ideas!

  11. Heather and all, it’s August and I’m just catching up on your reporting, and at this point would like to comment on one aspect of your fine presentation.

    What your father says about a preponderance of the evidence being just that, that a given event is likelier than not, even by 50.000001%, is absolutely correct. His interpretations of “clear and convincing evidence” as 60%-40%, and “beyond a reasonable doubt” as 80%-20%, may be realistic predictions, based on his experience, of how jurors are likely to apply these standards, which generally are not given any mathematical definition by an instructing judge (something positively disfavored by much of the legal tradition surrounding “reasonable doubt”).

    In fact, it’s proverbial that in certain counties in the USA, for example, “reasonable doubt” gets watered down to the point where it pretty much means guilty by a mere preponderance of the evidence, “Well, this person probably did it, so let’s vote guilty.” The effects of pretrial publicity can encourage this state of mind, where the presumption of innocence is more a form of words than a meaningful reality for the jurors, and where in fact the burden of proof is on the defendant to demonstrate innocence.

    One thing I would emphasize is that, traditionally, “reasonable doubt” meant “to a moral certainty,” which is an interesting philosophical concept. The idea was that a literal certainty about something was only possible for certain logical or mathematical proofs: you could hardly be absolutely certain in the same way about an event you had not yourself witnessed (and jurors, in modern trials, are selected in part because they have not personally witnessed the events which are the subject for the trial).

    What “to a moral certainty” meant in the 18th-19th centuries when the term came into legal currency was that you were as certain that the defendant committed the charged crime, after weighing all of the evidence, as you could be about any historical fact that you had not personally witnessed. And I would say that would be vastly higher certainty than 80%. Some people have proposed a 95% standard, which is comparable to the test of scientific significance (e.g. in clinical trials of drugs) that the results should be such that they would occur by chance only 5% of the time (a probability of 0.95, where 0 is impossibility and 1 is certainty). In fact, two recent studies have suggested an erroneous conviction rate in capital cases at around 4%.

    Sadly, even in legal theory, “to a moral certainty” has been getting watered down. This in 1994, in the case of _Victor v. Nebraska_, the Supreme Court of the United States held that the “moral certainty” instruction was constitutionally permissible, but expressed concerns that jurors might not understand what it meant. A good solution might be to put the phrase into modern terms as “practical certainty” or “virtual certainty” — as certain as we can be of real-life events that we have not ourselves witnessed.

    However, as noted in _Victor_, the Federal Judicial Center had proposed that a jury be instructed that the “reasonable doubt” standard meant that they must be “firmly convinced” of a defendant’s guilt. That, to me, sounds more like “clear and convincing evidence.” The idea of a near or virtual certainty can be expressed in various ways, but it’s sad to see this getting lost or at least watered down in legal theory as well as a jury’s actual application of the standard to the facts in the often charged atmosphere of a capital case.

    Finally, looking into the testimony of a given witness raises a larger question: how does the jury assess “reasonable doubt” based on the totality of the evidence? Legal lore suggests that the jury might think either in terms of the chain of proof being no stronger than it’s weakest link (and here the observer on bicycle at MIT seems a weak link indeed, thanks to your patience investigation!); or as a kind of woven fabric that can be much stronger than its weakest thread.

    To conclude, I think that your father’s wisdom about how juries tend to apply reasonable doubt in practice seems to me quite likely. And in a death penalty case, death qualification is also a factor affecting the guilt phase. The kinds of people who do look on “reasonable doubt” in terms of moral certainty or the like are often the ones with scruples against the death penalty that get them disqualified. Those willing to bring a death verdict are also often those who take “beyond a reasonable doubt” to mean “I’m more or less firmly convinced that the defendant hasn’t proven their innocence.” Would that this were more of an exaggeration; along with faulty eyewitness testimony, it may be a leading factor in erroneous death penalty convictions.

    1. Thanks so much for your intelligent input on this topic, Margo. Your points are well met. I agree that juries often don’t have a clear idea of what the threshold of “reasonable doubt” is, although I do recall once reading an article from a public defender who said he told them this definition at each and every trial, which I think is an essential step to making the guidelines as clear as possible. I likely would not have known any of this had I not had a lawyer for a father; even growing up I picked up legal tidbits that were not common knowledge in the average person – something that should perhaps be addressed in an educational setting, so that citizens are better informed about legal matters.

      Perhaps it was the upbringing I had that caused me to find such fault with Dzhokhar’s trial, even from the get go. It quickly became unfathomable to me that no one afforded him the presumption of innocence, not even in theory only. The guilt was a foregone conclusion from day one, and as a citizen of Boston I can say confidently this sentiment was felt the strongest here. That made me wonder why on earth it was possible to keep the venue here, if they could not seat a jury who presumed innocence. That, to me, is a fundamental flaw in the proceeding, because it flips the script from “innocent until proven guilty” to “guilty until proven innocent” – and then the defense was obstructed from putting on evidence to contest his guilt. “Troubling” doesn’t even begin to cover the implication of that.

      I myself have had to walk back from my own assumptions, as someone who lived through the events. I have found numerous instances where media-reported claims were misleading or downright false, all of which have led me to revise my opinion about culpability toward innocence, not against it. That alone should be a sign the venue should have been changed to a city where, at the very least, the population wasn’t saturated in damning media coverage. Perhaps then, the defense team would have been able to attack some of the root allegations about his guilt that they were unable to do in a Boston venue, with the deck stacked so unfairly against them.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s