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.
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”
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.
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?
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?
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
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?
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.
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.
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.
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.
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.
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.
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?
Q. And not Jahar Tsarnaev’s prints?
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.
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?
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.
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.
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.
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.
“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.