I’m at work on the research and analysis on the next post in my series about Sean Collier’s murder, but it’s going to be a few more weeks before I can get that out. In the meantime, I was thrilled to realize recently that readers on Twitter have been reaching out with comments and questions about the last post, and so I thought it might be a good idea to answer them in a blog post. If there is enough interest, I hope I can make these posts a continuing series. I have so many intelligent and engaged readers, and I absolutely encourage a dialogue as I continue to research this case and appeal efforts are made on Dzhokhar’s behalf. If you are not following the Twitter, you can do so here: @USvTsarnaev. However, I am happy to take questions a variety of methods: you can leave comments to the posts, use the Twitter, or send us an email by using the contact page.
And so, without further ado, let’s turn to the questions.
WiseOwl @Wise_Owl24: what did Harman really see? nothing out of ordinary, a man 5’8″ with a big nose near car, door block chest , logo??
This is mostly correct. I tried to include all of his descriptions that exist in the transcript, and when it comes down to it, they are quite scant. My father also pointed out that it is difficult for a witness to make a height determination when he is observing someone ducked inside the front seat of a car. Said person isn’t standing at his full height, so it’s impossible to determine how tall this person actually is. 5’8″ is a meaningless estimate when there was no prolonged observation of the person standing up straight.
Also, it is important to note that at no point does Harman say he saw a logo on the front of the person’s shirt. Here is a screenshot from the transcript I was working with:
He admits that he doesn’t know what was on the front of the shirt. This is what the prosecution tried to connect to the sweatshirt Dzhokhar was wearing that night: a gray hoodie with the Adidas logo in blue and yellow on the front. But Harman never once claimed he saw any particular color, design or logo, just that the front was “lighter” than the “dark” back. This is what led me to point out that as vague as this description is, it better fits the outfit Tamerlan was wearing that night (dark jacket with a lighter shirt underneath) than Dzhokhar’s.
Regardless, on its own I don’t think Harman’s description is good enough to match to any suspect. There’s thousands of young males in Cambridge and Boston who could utilize that wardrobe combination. It’s just too vague.
This next question was mentioned by two readers:
Mandy @MrsMandyME: good article,but it doesnt mention an important piece of evidence that Colliers blood wasnt found on Jahars clothes
Sharon @sharonsimons184: Thank you for calling attention to this well written article. Why no ref. to lack of Colliers blood on JT?
First, thanks to these readers for the compliments. Second, I responded to this question briefly on Twitter to say that the post was focusing only on discussing statements made by Nate Harman, and at no point does he ever mention seeing blood, nor the murder weapon, nor anyone else inside the car at all. He also never reports hearing gunshots, making it impossible to determine at what point in the video footage Collier was shot, and whether it was before or after Harman passed. The lack of these basic details also call into question the reliability of the witness. It’s odd that he was able to positively identify Dzhokhar in the courtroom, yet can’t report hearing or seeing the crime happen in any way.
However, there’s another side to this question that I think is due a little more discussion, which is the forensics involved. I started wondering about this myself as the trial was unfolding. At the time, I had a layperson’s general concept of forensics: I started asking questions about gunpowder residue, for example. Why was there no mention of gunpowder residue on either Tamerlan or Dzhokhar? These readers’ questions about the lack of blood spatter on Dzhokhar’s clothes are in line with this. Considering the close range of the murder, it’s likely blood would have gotten on the killer. However, no evidence was presented to indicate any of Collier’s blood was on Dzhokhar’s clothes (or Tamerlan’s, for that matter). Is the lack of blood an indicator of innocence?
Unfortunately, the answer to this is far more complicated than it seems. In recent years, questions have been raised about the unreliability not just of certain aspects of forensic science, but forensic science as a whole. About a year ago – in fact, right after Dzhokhar had been convicted in the guilt phase – the FBI admitted that for decades, the vast majority of their hair fiber analysts had given erroneous testimony in court. According to an article in the Washington Post:
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.
As if those sobering statistics weren’t enough, hair analysis is far from the only technique that has come under scrutiny. There has also long been concern over the forensic analysis of bite-marks, shoe and tire prints, handwriting, and marks made from firearms on bullets, which were all named in a 2009 panel study by the National Academy of Sciences. If the reliability of these methods have come into question, what about my own question about gunshot residue?
Well, it turns out that in recent years, it’s been discovered that looking for gunshot residue, or GSR, is highly unreliable as a crime scene technique. According to the website Crime Scene Investigator Network:
If the lab technicians find GSR, it can come from anywhere. Police take the view that if you haven’t just left the firing range, you fired the murder weapon. This argument holds great weight if you live in a society where guns are rare, such as Singapore or Japan. If you live in other places in the world, including the United States, that argument means nothing.
GSR lasts nearly forever. It can land on anything and stay there indefinitely. Because so many people in this country shoot guns and the things in their lives are covered with GSR, an individual will be covered with GSR when he or she comes in contact with these people or anything they touched. If tested, the individual will test positive for GSR. It is human nature to see what you want to see, and the police want to see that which will solve the crime.
So unreliable is GSR, in fact, that the FBI stopped testing for it in 2006. According to the above website, a spokesperson for the FBI labs claimed this was due to a “shift in priorities,” not a lack of faith in the science. She also stated that their resources could be better spent in “areas that directly relate to fighting terrorism.” (I wonder if that means devising methods for determining the radicalization of an individual, because I’ve already made two posts on how that isn’t working out so well for them.) Also, in the court transcript there is testimony that the Massachusetts State Police did send Dzhokhar’s sweatshirt for GSR analysis, but no results were ever discussed, suggesting that as unreliable as positive results would be, none were even found.
So a lot of forensic techniques are questionable at best. Do the same concerns apply to more “tried and true” methods, like fingerprinting and blood analysis? I looked into it, and unfortunately, the answer appears to be yes. Surprisingly, fingerprinting can involve an alarming amount of guesswork. As Nathan J. Robinson, who is a PhD in Sociology student at Harvard with a JD from Yale, explains:
One serious problem with those tests is that they allow for high levels of subjectivity. The NAS [National Academy of Sciences’s aforementioned study] authors wrote that fingerprint analysis, for example, is “deliberately” left to human interpretation, so that “the outcome of a friction ridge analysis is not necessarily repeatable from examiner to examiner.” I saw this up close while working at the public defender’s office in New Orleans. Explaining his procedure for determining a match, a fingerprint examiner said in court that he would look at one, look at the other, and see if they match. When asked how he knew the two prints definitely matched, the examiner merely repeated himself. That very logic leads the FBI to claim fingerprint matches are “100 percent accurate.” Of course they are, if the question of a match is settled entirely by the examiner’s opinion. Without any external standard against which to check the results, the examiner can never be wrong.
Robinson brings up a critical point in regards to the subjectivity of forensic examiners. He points out that “criminal investigations regularly flout scientific safeguards against bias. Analysts often know the identity of the suspect, potentially biasing results in favor of police’s suspicions. Even more concerning, some crime labs are paid not by the case but by the conviction, creating a strong incentive to produce incriminating evidence.”
Blood analysis is not exempt from this. In looking for reliability of blood spatter pattern analysis (ala Showtime’s Dexter, a show I perhaps ironically loved a few years ago), I was similarly disheartened. In a post from the Innocence Project‘s website, the NAS’s 2009 study came up yet again:
…there are indeed serious questions about the reliability of bloodstain analysis. Only two of the professional organizations for blood pattern “experts” have any requirements for membership, and only one of them has an educational requirement.
Chu [the Innocence Project Forensic Policy Associate] reminded me that just because there are organizations devoted to analyzing bloodstain patterns, it doesn’t mean the technique is scientifically accepted. The NAS report reveals that blood pattern analysts are more subjective than scientific and that many cases involving the technique have targeted requests from either the defense or prosecution which can lead to partiality.
By now, I’ve been seeing this assertion over and over: just because these methods are used in court to put people either in prison, sometimes for the rest of their lives, or to sentence them to death, doesn’t mean they have any scientific basis. Because of this, forensic science as a whole is a flawed concept. As Nathan J. Robinson explains:
Some of the basic problems of forensic science are hinted at in the term itself. The word forensics refers to the Roman forum; forensics is the “science of the forum,” oriented toward gathering evidence for legal proceedings. This makes forensics unusual among the sciences, since it serves a particular institutional objective: the prosecution of criminals. Forensic science works when prosecutions are successful and fails when they are not.
Therefore, the entire point of forensic science is that it’s meant to benefit a prosecution team. Because of this, perhaps it’s no surprise that DNA analysis, by far the technique with the soundest scientific base, is most often used to exonerate innocent people who were convicted on other types of faulty evidence.
But even DNA results can’t save people from overzealous prosecution teams who will, either inadvertently or deliberately, misrepresent forensic reports for the jurors. In my research, I found the case of Greg Taylor, who was convicted in 1993 of murder and sentenced to life in prison. In 2010, he was exonerated and released because of new evidence. A large contribution to Taylor’s conviction was a lab analysis claiming that a spot of the victim’s blood was found in the bed of his truck. According to UMich’s National Registry of Exonerations:
At Taylor’s trial, the prosecution presented a lab technician’s report to the jury that described a “chemical indication for the presence of blood” in his truck.
Additionally, the wording in the lab technician’s report is the description analysts are required to give when an initial test indicates the presence of blood, but in this case, subsequent DNA testing showed that no blood was present. Because the author of the report did not testify, and did not tell the prosecution about the negative results, the jury did not hear the results of the subsequent tests.
Also, the North Carolina Center For Actual Innocence reported that, “New evidence presented included the lab analyst’s bench notes from 1992 testing which had actually confirmed that the substance found on Greg’s truck was not human blood. Those bench notes were not given to the defense at the time of trial and, if not for the Innocence Inquiry Commission’s investigation, it is likely they would never have been discovered.”
So to bring all of this back to the question about the lack of blood on Dzhokhar’s clothes. Is the fact that none of Collier’s blood was found on his sweatshirt proof of his innocence? Not exactly, because the blood spatter analysis I would want to see to determine whether a shooting from the approximate distance would result in spatter on the shooter is unscientific enough that it can’t prove anything. However, the lack of evidence does go toward establishing reasonable doubt. With all that in mind, perhaps a more important question might be: did the prosecution care about any of this?
I’ve found, as I’ve gone through the evidence of the case this past year, that it isn’t enough to discover the truth of what happened; I need to understand how the prosecution crafted their version of events and why. It has not escaped my attention, nor my father’s, that there is a dearth of forensic evidence where logic dictates there should be more. This isn’t a matter of whether the method an analyst uses to determine a match is scientifically sound — there’s just no evidence at all. When there are big gaps like that, I start to ask questions. One of the questions was: did perhaps the prosecution know the forensic science was unreliable, and therefore didn’t present it, only wanting to only on more scientifically sound evidence?
I actually operated under this assumption for awhile, until I realized that was, frankly, giving the prosecution too much credit. It’s clear from the get-go that they were desperate for both a conviction and a death sentence, or else they wouldn’t have bothered presenting evidence like footage of Dzhokhar innocuously buying milk, or had Dr. Matthew Levitt give his absurdly off-the-mark testimony about radicalization, or tried to assert that the reason Dzhokhar’s fingerprints weren’t found on the bombs was because they all magically evaporated due to the high heat of the explosions, leaving only Tamerlan’s behind.
So while I don’t think that no blood on a suspect’s clothes necessarily means he didn’t commit a shooting (absence of evidence is not evidence of absence), I do think that if there had been a prayer of tying Dzhokhar to Collier’s murder more firmly with forensic evidence, as unscientific as it might be, we would have heard about it. I sincerely doubt there’s any untested or unused evidence somewhere that would make Dzhokhar’s guilt look more likely.
In fact, I’m rather confident of this because of what the prosecution tried to assert in the wake of any blood being found on Dzhokhar’s sweatshirt. They actually tried to spin the lack of evidence in their favor, as evidenced by their re-direct of their own witness, DNA analyst Jennifer Montgomery. After defense lawyer Tim Watkins pointed out on cross-examination that DNA results on the eight blood samples tested on Dzhokhar’s sweatshirt matched only him, prosecutor Bill Weinreb asks the witness the following:
Q. Ms. Montgomery, you say that you tested swabs that were taken from various areas on the sweatshirt?
Q. So a swab of a particular area, it just picks up the blood in that area, correct?
Q. It doesn’t pick up all the blood in all the areas?
A. No, just that specific area that the sample was taken from.
Q. Right. And if there was an area that wasn’t swabbed, then we wouldn’t know whose blood that was, correct?
Q. And even if there was an area that was swabbed, if the swab didn’t happen to hit the entire area, cover all of it, then you wouldn’t know necessarily whose blood that was, correct?
Q. And if somebody is swabbing areas of blood on a sweatshirt but there are, let’s say, little pinpoints of blood or tiny droplets of blood elsewhere —
MR. WATKINS: I’m going to object at this point.
THE COURT: Sustained.
BY MR. WEINREB:
Q. Do you know whether every single droplet of blood on that sweatshirt was swabbed?
MR. WATKINS: I object.
THE COURT: You may answer that.
THE WITNESS: I do not know.
BY MR. WEINREB:
Q. Do you know whether it is — whether there was a request that every single droplet of blood be swabbed?
MR. WATKINS: I’m going to object.
THE COURT: Sustained.
BY MR. WEINREB:
Q. All you can say is that the swabs that you happened to test did not have anyone’s blood besides Dzhokhar Tsarnaev’s?
MR. WEINREB: No further questions. (162-164)
It’s a paltry strategy to cast suspicion on the competence of your own witness in order to assert there might be some of the victim’s blood lurking untested on the defendant’s clothes. It also flies in the face of the very foundation of due process: innocent until proven guilty. The burden of proof is on the prosecution. If there’s no evidence found against the defendant, he is therefore innocent; he cannot be guilty simply because a microscopic possibility remains that some evidence against him might have been missed.
otter @ottersucubus: you gotta wonder how the ruger and gloves got from MIT to watertown. who was at both places?
This is an excellent question, and I’ve been spending the better part of the last week trying to figure it out. While I’m planning to talk at length about the Ruger that killed Sean Collier in the next part of my series, this reader brings up an oddity of evidence that is still largely shrouded in mystery: two white gloves with Sean Collier’s blood on them that were found in the front seat of the Honda Civic abandoned in Watertown.
Before I start, a couple points of clarification here: first, while this green Honda Civic has been repeatedly referred to as Dzhokhar’s car – especially by the prosecution in an attempt to tie him individually to the crimes – this is something of a misnomer. Yes, this was the car he was known to use and had with him at college, but documents about his forfeiture of property after the trial revealed that in fact, all the cars in use by the Tsarnaevs were actually registered under the name of Dzhokhar’s father, Anzor. So really, this is not Dzhokhar’s car, but his father’s, and he was a permitted user of the vehicle along with Tamerlan. Dzhokhar owned the car about as much as I owned the car my parents let me drive as a teenager, or as much as the car you’ve made payments on but your son has taken to college is his.
Second, the gloves themselves are puzzling. They are not a pair of gloves; they are two separate gloves, a right and a left, and are men’s golf gloves of different brands: Callaway and Torch. Golf gloves are not sold together, so whoever purchased them deliberately purchased one right glove and one left glove, assuming the same person bought them at all.
This is where things get really baffling. While DNA analysis identified the blood on them as Sean Collier’s, forensics failed to collect any other evidence to link them to a suspect. No other blood, no hair, fingerprints, sweat, nothing. What’s more, the prosecution offered no explanation of ownership of the gloves. I recall thinking they must have been Sean Collier’s simply because there’s been no evidence to suggest that either Tsarnaev brother was a golfer. They seem at best to be an improvised tool, something on hand for convenience’s sake, and not the kind of gloves you would buy in planning a murder. (Or even to endure a Boston winter, for that matter.) But in reviewing the transcripts, I realized that there was no mention of the gloves belonging to anyone. This is something the government’s investigation could have easily done: simply ask around to determine whether the suspects or the victim owned golfing gloves… but no. The prosecution offered the gloves and their placement in the Honda without comment.
I’ve been wracking my brain against this one for days, and unfortunately I don’t have a good explanation. I don’t think they were planted – there was testimony about a rather well-documented chain of custody. But they also aren’t necessarily specifically incriminating for Dzhokhar. The evidence is circumstantial; it establishes that someone who was at Sean Collier’s murder scene was also in or at least at the Honda to discard the gloves at the bottom of the driver’s seat. This could be Dzhokhar, Tamerlan, or even a third party; with no DNA evidence and no clue about whose gloves they were, it’s impossible to tell.
I wish I could be more definitive than that, but for now, this is the best I can do. While we’re on the topic of what was found in the Honda, however, I should also mention that Collier’s blood was found on one other item: the car keys in the ignition.
This piece of evidence caused quite a stir at trial, as evidenced by the sidebar conference in the transcript. Apparently, the defense was aware the gloves were coming in as evidence, but did not know about the keys. This led to a fervent back and forth between the prosecution and defense out of earshot of the jury:
THE COURT: Is this the keys?
MS. CLARKE: Yes.
MR. WEINREB: Your Honor, at least six months ago we sent the defense the report and an email stating that in addition to her testifying about the gloves, that this witness was going to talk about the keys. It wasn’t in our initial disclosure, that’s true, because we got the report later. But, in fact, we did give them the evidence many, many months ago and in an email said we were going to use it.
THE COURT: Do you have it?
MR. WEINREB: The email?
MR. CHAKRAVARTY: We could get it. We need five minutes.
MR. WATKINS: I don’t think we ever got it. It’s true we have the report, but the strictures of 16(a)(1)(G) are quite —
MS. CLARKE: It’s not in there.
MR. WEINREB: This was the original disclosure. We did it shortly afterwards because we got the report shortly afterwards. But we did send the report with all of the information.
THE COURT: Well, given what the testimony is likely to be, I mean, is there prejudice?
MR. WATKINS: Well, your Honor, it wasn’t noticed. I mean, that’s the bottom line.
MS. CLARKE: It’s Sean Collier’s blood on the keys. And I don’t know what the government’s argument’s going to be but they’re going to try to place our client in the driver’s seat leaving the scene. (152-153)
Here they are concerned, quite rightly, about the rules of discovery and the fact that evidence about the keys were not specifically disclosed to the defense team. In fact, the statute Mr. Watkins mentions is as follows:
Expert Witnesses. At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.
So their concern is justified; the prosecution can’t simply spring new incriminating evidence on them last minute. While I’m trying to give the prosecution the benefit of the doubt, as there seems to be some genuine confusion in their discussion, the email they produce as proof is, as Judy Clarke points out, lacking the piece of information. Was it actually disclosed in a later email? At the moment, it’s hard to say, but regardless, this is absolutely something that can be reviewed in the appeal process as violating the rules of discovery.
This disagreement between the prosecution and the defense actually delayed Jennifer Montgomery’s testimony about the car keys for about a week. However, when the government recalled her on March 24th, she testified about them and the defense did not offer a cross. I’m honestly not sure why at this point; perhaps they investigated it and decided it wasn’t worth trying to contest. Like the gloves, the keys don’t have any fingerprints or other forensic material on them aside from the presence of Sean Collier’s blood. While it’s likely the set of keys belonged to Dzhokhar, as evidenced by the UMass Dartmouth logo, that doesn’t prove he was the one to transfer the blood there. Again, it’s circumstantial, and all it really suggests is that whoever was at Sean Collier’s car was at one point in the driver’s seat of the Honda – which the placement of the gloves discarded on the driver’s side floor corroborate. Again, it could be Dzhokhar, but it could also be Tamerlan, or a currently unknown third party.
However, if it wasn’t Dzhokhar, if someone else removed the keys from his possession and took over the vehicle, that is actually helpful for the defense. It suggests that he was not in control of the actions of that night – that he was, in essence, a hostage.
In fact, there is previously produced evidence that backs this idea up, from the day of the bombing. As I mentioned earlier, the prosecution presented surveillance footage from a Cambridge Whole Foods where Dzhokhar bought a half-gallon of milk about twenty minutes after the bombing. They used it as an attempt to claim he acted calm and remorseless after committing a heinous crime, but I’ve always found this footage interesting for entirely contradictory reasons. While what we can learn from Dzhokhar’s body language in surveillance videos is a subject better kept for another day, the milk footage is unequivocal in a different matter: he is shown exactly three times either entering or exiting the Honda on the passenger side.
And if Dzhokhar wasn’t in control of the car the day of the bombing, it’s not a stretch to consider that he wasn’t in control of it the night Sean Collier was killed, either.
Thanks again to all the readers who posed great questions on Twitter. I hope to keep this up in between “official” posts as long as there’s interest. So please leave questions in the comments below, Tweet questions to @USvTsarnaev, or send an email by going to the contact page.
Please stay tuned for the next post in my series on Sean Collier, in which we will dive into all the nitty gritty details about the Ruger P95. Thank you, as always, for reading and for your continued support in the interest of justice.