To view a PDF of the brief, click here. Please note: the file downloaded from the docket with the Addendum in front, so the brief itself doesn’t start until page 625.
Yesterday, Dzhokhar Tsarnaev’s appellate lawyers filed the opening brief in his appeal. The long-awaited document clocks in at 1124 pages, and includes 500 pages of the brief itself, and a 624 page addendum. There may still be more documents filed, as earlier motions referenced an appendix numbering some 10,000 pages(!), but as of yesterday afternoon it was not on the docket. Either it has yet to be filed or it was filed under seal.
Even so, what we have so far is voluminous. While it’s going to take some time to properly read and analyze the entire brief, a preliminary look has revealed many promising arguments that we are excited about. Here are eight of the most interesting points we’ve come across so far, with more certainly to come.
1. Issue I, as we have long discussed, is change of venue.
Since day one, Tom Frizzell, our “Attorney Dad,” has championed the error of keeping the trial venue in Boston, a city widely victimized by the Boston Marathon bombing and saturated with negative and misleading pre-trial publicity about Dzhokhar. Therefore, we were pleased to see that the failure to change the venue is the very first issue covered in the brief. Titled, “The District Court Improperly Forced Tsarnaev To Trial In Boston,” it chronicles the four separate times Dzhokhar’s trial lawyers tried to change the venue and were denied. This came despite mounting evidence from the jury pool questionnaires that there should be a presumed prejudice in the populous due to pre-trial publicity. They write,
From the bombings until trial, all of Eastern Massachusetts was saturated with print, radio, television, and internet publicity about the case. Much of this publicity referenced prejudicial evidence that was not, and could never be, introduced at trial. Because of the extraordinary nature of the community’s victimhood and the press coverage, prejudice should have been presumed and a change of venue ordered. (48)
We have previously discussed the pre-trial publicity and its negative impact on public understanding of the case. In particular, back in September we did a podcast episode discussing the suspension in June 2018 of Boston Globe journalist Kevin Cullen over his coverage of the bombing. Much of what he wrote was found by independent investigators to be fabricated. Considering the vast majority of the jury pool came to the venire with misinformation about the attacks and Dzhokhar’s role in it, his lawyers argue prejudice should be presumed.
Additionally, in the brief, they lay out that of the approximately 1500 potential jurors, “99.7% of the venire was exposed to pre-trial publicity; 69% of the venire had already concluded defendant was guilty before hearing the government’s first witness”(48). Additionally, of a subset of jurors who believed Dzhokhar already deserved the death penalty before the trial even started, “69% admitted they would not be able to set that view aside and decide the case based on the facts presented in court”(48). This establishes actual prejudice, which was why the trial should have never remained in Boston.
2. Two people sitting on the jury lied during voir dire and expressed prejudice against Dzhokhar before the trial started.
In Issue II, Dzhokhar’s lawyers go a step further and identify two jurors who lied during voir dire about their impartiality. Juror 286, who served as the foreperson, lied about being in the lockdown in her Dorchester home on April 19, 2013. Furthermore, she “concealed Twitter posts in which she mourned the victims of the bombings, praised the law enforcement officers who captured Tsarnaev—several of them trial witnesses—and called Tsarnaev a ‘piece of garbage'”(102).
Next, a second juror, number 138, went against instructions from the Court, discussed the case on Facebook, and then “falsely told the Court and the parties that he had not”(102). While discussing the case, a friend on Facebook “urged him to ‘play the part,’ ‘get on the jury,’ and send Tsarnaev ‘to jail where he will be taken care of'”(102). Yikes.
Although Dzhokhar’s trial lawyers at the time moved to have these two jurors removed, Judge O’Toole denied the request, calling it “speculative” and “collateral.” In the brief, the appellate team challenges this, writing:
Those erroneous rulings violated Tsarnaev’s Fifth Amendment right to due process, his Sixth Amendment right to an impartial jury, and his Eighth Amendment right to a reliable determination of the appropriate penalty. Both jurors gave knowingly false answers to unambiguous questions. Juror 286 hid strident expressions of bias and the traumatic experience of having sheltered in place. Juror 138 concealed his disobedience of the Court’s orders and his exposure to the poisonous suggestions of a friend that he manipulate the voir dire in order to sit on the jury and punish Tsarnaev. The Court’s failure to strike both for cause was structural error that requires reversal of Tsarnaev’s convictions, or in the alternative, under Eighth Amendment principles, his death sentences. (103)
My money’s on reversal of the convictions, myself.
3. The appellate team unequivocally backs up our theory of the case that Dzhokhar acted out of fear of Tamerlan.
From the start of this project, we have been adamant in our belief that Dzhokhar could have had a viable defense in the guilt phase by arguing duress – that he acted at Tamerlan’s behest not out of love or radicalization, but fear, coercion and/or manipulation. In the appellate brief, Dzhokhar’s lawyers, in no uncertain terms, back us up on this one.
This comes in Issue V, where his lawyers dive into a tangential case that I have always found puzzling, the Waltham triple murders. To date I haven’t covered this crime on the site, due to the lack of definitive evidence available to the public. Furthermore, Dzhokhar has never been accused of taking part in these murders. For a long time, they seemed to fall out of the purview of this project.
However, the Waltham triple murders may hold greater significance to the case than it once seemed. In the last several months, Dzhokhar’s lawyers have sought to unseal documents on the original court docket, as well as ex parte filings between the prosecution and the Court – most of which have to do with the murders in Waltham. It turned out that the government went to great lengths to exclude any mention of these murders at Dzhokhar’s trial at either phase, guilt or penalty.
To give a brief summary, the Waltham triple murders occurred on September 11, 2011, in which three men, including a good friend of Tamerlan named Brendan Mess, were brutally murdered. Since the men were drug dealers, it was originally considered a drug-related crime. Then, in a disturbing twist, about a month after the Boston Marathon bombing, a Chechen immigrant named Ibragim Todashev was shot and killed by an FBI agent in his Orlando, Florida home – while mid-confession to committing these murders with Tamerlan.
There are a lot of questions surrounding Todashev and his alleged role in these murders. The FBI agent and Boston police officers involved in the killing were acting against protocol interrogating Todashev in his own residence for several hours on end. Additionally, Todashev was shot seven times while trying to escape, armed only with a broom handle. This act of brutality didn’t get much attention in 2013, but might get more today, in the light of movements like Black Lives Matter. Knowing the conditions that contribute to a false confession, I can’t say I believe without a shadow of a doubt that Todashev’s confession was truthful. It seems like he was backed into a corner to give it, and died trying to flee in lieu of finishing it.
However, that isn’t really relevant to the argument made by Dzhokhar’s lawyers. In their brief, they contend that exclusion of all mention of this brutal crime, in which decent evidence exists that Tamerlan was involved even without Todashev’s confession, hurt Dzhokhar’s defense. For instance, given that the prosecution’s argument was that Dzhokhar bore as much responsibility for the bombing as Tamerlan, evidence of Tamerlan’s prior violence “makes it significantly more likely that Tamerlan initiated the bombings and the brothers’ failed escape, and that, contrary to the government’s jury arguments, Tamerlan played a much greater role in these offenses than Jahar throughout”(250).
More importantly, they present in no uncertain terms a better defense that Dzhokhar could have used if the Waltham triple murders had been allowed in: that he had learned something about his brother prior to the bombing which frightened him very much. They write,
The Court prevented the defense from showing that Jahar found out, months later, that his brother had committed the horrific murders in Waltham. Jahar had to live with the knowledge that his closest relative was a killer. In 2012, he told a close college friend, Kadyrbayev, that Tamerlan had committed the murders as “jihad,” [redacted]… Evidence of Jahar’s knowledge of his brother’s willingness to kill someone very close to him—Mess—in pursuit of jihad might well have persuaded at least one juror that Jahar placed the bomb on the finish line out of fear of what his brother might do to him if he refused. (250)
I haven’t yet been able to thoroughly investigate the appellate team’s claims that Dias Kadyrbayev, who pleaded guilty in 2014 to obstruction of justice for throwing away Dzhokhar’s backpack, knew about Tamerlan’s involvement in the murders through Dzhokhar. However, the lawyers write about it in the brief repeatedly and with confidence, something I imagine they wouldn’t do if they weren’t certain about it (having, of course, Dzhokhar as their client to verify it). I confess I’m skeptical that we should view Tamerlan’s involvement in the Waltham triple murders simply as “jihad” – the lawyers also write that thousands of dollars were stolen, providing an additional motive, if not an entirely alternate one. However, Tamerlan’s alleged willingness to murder a friend does, sadly, track with another observation I’ve made about the bombing. If Dzhokhar only placed the backpack and Tamerlan detonated, Dzhokhar’s proximity to the bomb at the time of the explosion demonstrates Tamerlan’s willingness to injure or even kill his own brother to get the job done. That makes Tamerlan’s alleged murder of Mess consistent with his behavior toward Dzhokhar at the Marathon, and certainly provides sufficient justification for Dzhokhar to be afraid of him.
4. One issue – Issue VI – is entirely redacted.
So we don’t actually know what this one is about at all. There’s eighteen full pages of black here. Perhaps selfishly, we’re hoping it includes discussion of Stephen Silva’s testimony about providing Dzhokhar Sean Collier’s murder weapon. Back in 2016, I wrote two articles detailing the holes in Silva’s testimony and the likelihood he perjured himself – possibly at the direction of overzealous prosecutors who needed the Ruger in Dzhokhar’s possession in order to convict. Allegations of misconduct of this kind against federal prosecutors is extremely serious and may have warranted complete redaction. This is just speculation, however; we don’t know. Whatever it is, it must be important and highly sensitive information.
5. Issue VIII reveals that information from the involuntary confession Dzhokhar gave to FBI agents while grievously injured in the hospital – the one tossed out by Judge O’Toole – was used against him by the prosecutors anyway.
Before the trial, one of the defense’s only victories was Judge O’Toole’s ruling that the confession was obtained involuntarily and that nothing in it could be used by the prosecutors against Dzhokhar. However, in filings earlier this year, the defense alluded to an argument that despite this ruling, the government went ahead and used the content of this suppressed confession anyway.
With the exception of early and vague news reports about the brothers’ actions and motives, the content of this confession, hand-written by Dzhokhar in while in Beth Israel’s ICU, has been a question mark. That is, until in October, when his appellate team filed the full content of his handwritten confession, along with the FBI’s 302s summarizing the information contained therein. Back in 2013, the FBI agents, touted as a high-value target interrogation team, were presented as heroically obtaining important intelligence from a dangerous terrorist.
In reality, what they got from Dzhokhar was very different. We’re planning a more in-depth discussion of exactly what is in the confession for a forthcoming podcast, but in brief: nothing he told them about his supposed connection to the attacks corresponds with physical reality. All it betrays about Dzhokhar is great ignorance of the planning of the bombing, coupled with outlandish guesses to give the interrogators what they want (after repeated requests for a lawyer were ignored).
All this aside, the appellate team charges that the government’s case in both phases prominently featured evidence that could have only been obtained from the confession. Evidence obtained from a suppressed confession can only be used if an independent witness provides the same information – and the appellate team contends that there were none. What damning information about Dzhokhar could have been so important that the government risked committing reversible error to get it in front of the jury?
Footage of him buying milk.
I wish I was kidding. The appellate team writes:
During its guilt-phase case-in-chief, the government introduced what appeared to be the statement’s fruits—surveillance video of Tsarnaev, about 20 minutes after the bombings, shopping for milk at a Whole Foods supermarket in Cambridge. … The government exploited the video to great effect, especially during the penalty phase, to support the statutory aggravating factor that Tsarnaev had committed an “act of terrorism,” 18 U.S.C. § 3592(c)(9), and the crucial non-statutory aggravating factor that he had shown a “lack of remorse.” (344-345)
Ah yes, the infamous milk evidence, one of the first signs to me that something was wrong with the case. The footage shows Dzhokhar entering the Whole Foods near his residence, buying a half-gallon of milk for $3.49, returning to exchange it a few seconds later, and leaving again. I have often quipped that the only crime depicted there was highway robbery – against Dzhokhar.
However, the prosecutors trumpeted this footage as irrefutable proof of Dzhokhar’s ruthless terroristic nature. I have long considered this “evidence” as a sign that the prosecutors were really scraping the bottom of the barrel when it came to presenting proof of his guilt. The appellate team also notes the “heavy emphasis” the government placed on the milk footage, which “prosecutors mentioned seven times in their jury arguments”(345).
When the defense tried to object to the inclusion of this footage, the prosecutors claimed that they hadn’t gotten this information from Dzhokhar’s confession, but rather “from an unnamed ‘civilian witness,'” an assertion that Judge O’Toole “accepted … without a single piece of corroborative evidence”(345). If an independent source for this information cannot be found, nor the voluntariness of the confession confirmed, his lawyers argue, this should result in the reversal of the death sentence.
I, for one, would be tickled pink if the prosecutors lost their death sentence victory over improperly obtained video of purchasing milk.
6. The brief includes discussion of anti-Muslim bias presented by the prosecution at trial.
In another move backing up research conducted on this site, Issue IX presents an argument about the rampant anti-Muslim bias used in the case against Dzhokhar. In the past I’ve written extensively on the presence of Islamophobia in the prosecution witnesses, the inaccurate portrayal of radicalization, and even the government’s retainer of fake experts like Sebastian Gorka, a now-disgraced former Trump adviser infamous for his anti-Muslim views and membership in a pro-Nazi group.
Likewise, in the Issue IX title, the appellate team charges that “The Government Used Inadmissible Evidence, Inflammatory Audiovisual Presentations, And Improper Arguments To Stoke Anti-Muslim Bias And Incite The Jury To Vote For Death Based On Passion And Prejudice”(vi). Among their issues are the government’s attempt to link Dzhokhar to crimes committed by ISIS, who hadn’t even entered the public consciousness until after his arrest; inflammatory use of Islamic imagery juxtaposed with footage of destruction caused by the bombing; and an enlarged still image of Dzhokhar in lockup giving the middle finger used in conjunction with photos of the four victims killed. The government “then told the jurors, with no factual basis whatsoever, that this obscene gesture was Tsarnaev’s ‘message’ to his victims”(381). These actions “played to commonly held biases against Muslims: that they are foreign, frightening, and violence-prone” and through them the government sought to portray “an uncomplicated, simplistic picture of ‘who Dzhokhar Tsarnaev is’: a recalcitrant Muslim zealot, unfazed by his actions, and unable to be contained”(382). I couldn’t have said it better myself.
On an interesting note, the appellate lawyers’ section on government witness Matthew Levitt’s testimony largely echoes an article I wrote about him in 2015. I did notice an uptick in views of this post in particular the last few months. It struck me odd, as it’s an old and somewhat esoteric argument, as my posts go. So, um, Dzhokhar’s lawyers, if you’re reading this… tell him I say hi, okay?
7. The appellate lawyers allege “repeated secret contacts” between the Court and the government that violated Dzhokhar’s “rights to due process and assistance of counsel.”
In a brief but poignant section, Issue XIII points to a practice that was happening during the trial that didn’t come to light until long after its conclusion:
In pursuit of a death sentence and unbeknownst to Tsarnaev’s trial counsel, the government conducted at least 26 secret communications with the District Court. Thirteen of these remain undisclosed to appellate counsel. … This secret channel of communication between the prosecution and the District Court [redacted] is unprecedented in a federal capital case and violated Tsarnaev’s Fifth Amendment right to due process and his Sixth Amendment right to the assistance of counsel. (441)
This one pretty much speaks for itself. Although the parts regarding the content of these secret meetings is redacted in the brief, previous filings have hinted at least some of them have to do with the Waltham triple murders. Although who knows what else the prosecutors and the judge might have decided behind closed doors, behind the defense’s back? If recent news reports about the current administration are any indication, secret back room deals don’t usually have the best interests at heart of anyone but the participants.
8. There may still be more supplemental briefs filed.
Shortly before the brief was filed, the appellate team added three new lawyers: on December 20th, they added Anthony O’Rourke and Mia Eisner-Grynberg; on December 21st, they added Daniel Habib. In a recent Boston Globe article, it is noted that in particular, O’Rourke “is a regular contributor to the Federal Defenders of New York Blog. His recent articles have touched on a number of topics, including the Armed Career Criminal Act.”
The Armed Career Criminal Act was affected by the June 2015 Supreme Court ruling striking the residual clause in federal statutes regarding the use of a firearm, under many of which Dzhokhar was convicted. After the death sentence verdict, his trial lawyers argued that, as a result of the SCOTUS ruling, these convictions should be vacated. At the time, Judge O’Toole denied the request. Now that we’re at the appellate level, and given O’Rourke’s specialty in this area – plus prior appellate filings indicating they planned to bring it up on appeal – it’s likely we have more briefs coming.
To conclude, this is just a smattering of the issues contained in the opening brief. There are sure to be more updates as we go through its contents and more filings are made. Thanks as always for your support, and stay tuned.