Appealcast – First Circuit Decision Extravaganza, Pt. 1

Title image: Jahar, left, and his older brother Tamerlan, when they were younger.

Heather and Tom Frizzell discuss the July 31, 2020 First Circuit Court decision to overturn Dzhokhar “Jahar” Tsarnaev’s death sentence. In this episode, we talk about the issues the defense won on, as well as the four biggest takeaways from the decision: Judge O’Toole’s failure to properly vet jurors for bias during voir dire, the debate over failure to change venue, new revelations about Tamerlan Tsarnaev’s involvement in the 2011 Waltham triple murders, and Tom’s theory that Jahar was denied effective assistance of counsel. We also discuss why it’s important that Jahar never pled guilty, the special defenses of duress and undue influence, Heather’s critique of “radicalization” as a concept, why the taint of inaccurate pretrial publicity is still haunting this case, the First Circuit judges’ own anti-Muslim biases, and more. Continued in Part 2.

Read the First Circuit decision here

Episode music: “The Complex” by Kevin MacLeod

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9 thoughts on “Appealcast – First Circuit Decision Extravaganza, Pt. 1”

  1. Terrific show. Thanks for sifting through the details and presenting them in a clear and succinct manner. It is a must listen for many of us laypeople who recognize much is amiss in this case, but don’t have the time or expertise to put it all together. It would be interesting to see how your views hold up in a more adversarial discussion or debate.

    1. Hi Peter, thank you so much for your kind words and I’m glad you’ve found our work illuminating. We would love to have a more adversarial debate if anyone would be willing to engage in good faith arguments with us.

      1. Heather, of course if there were a debate of sorts, it in no way replaces the work you are doing in these pod casts, which stand on their own. You and your father are a magnificent team. The detail you provide is absolutely riveting.

        I want to mention one other thing, which is the NPR podcast, This American Life. I was disappointed with the speculation by the journalist featured in the episode that Todashev flew off the handle and that’s what got him killed. I think additional caution is needed when a broadcast has the reach it does. I got the feeling that the groundwork for her conclusions, based on alleged statements by those who were present at the time, and the story that Todashev had a temper that had caused him to beat up a man, were not sourced well enough to bolster such a conclusion. It had a fabricated feel to it. And it certainly could plant a message that might easily dampen further investigation–send people down the wrong road, so to speak. Muddying the waters. It would have been better for her to have concluded nothing at that time, or to have kept her opinion, if it really was hers, to herself, instead of broadcasting it to the world, which is somewhat suspicious. Of course the episode could be taken apart point by point, and I believe you mentioned that “This American Life” did not have the information that is available today. It seems that a lawsuit filed by some parties is going forward as of June, but just barely, by a thread, as a result of an appeal that ended up with a favorable ruling on just one point–the right to discovery regarding the claim against the man who fired the shots that killed Todachev. All the other claims, which seemed quite legitimate, were thrown out. I’m not an attorney, so you’ll have to forgive me if my lingo is not up to par.

      2. Thank you very much! That’s high praise!

        Regarding the episode of This American Life about Todashev, I admit I probably have not heard it since it aired, so my memory is not terribly clear of the journalist’s conclusions (I believe her name is Susan Zalkind). It sticks out in my mind because of her reporting on the FBI’s surveillance methods of Todashev and his friends, and that law enforcement went so far as to detain and deport some of them, even though they seemed to have no connection to the crimes in question. This troubled me at the time, and still does now. It raises questions both about what exactly the FBI expected to find in going after Todashev, as well as how normalized abusive policing practices are, especially when going after non-US citizens.

        I absolutely agree with you, however, that there are far more details available about the Waltham triple murders now, some of which I believe contradict the reporting in that episode, and that episode should not be used as a definitive primer on the facts of that case. But since there’s so little else out there about what happened to Todashev, I think it’s one of the few pieces of journalism that uncovered anything of note at all (even if it’s mostly tangential).

  2. Heather, you and your father might want to review United States v. French, 904 F.3d 111 (1st Cir. 2018). In both the 1st and 9th Circuits, “harmless error” can’t be used to protect a conviction rendered by a jury that wasn’t impartial. I don’t know of any contrary authority.

  3. The government has filed today. Can you explain in plain terms. Does this mean the government is filing to have the Supreme Court make a final ruling?
    I find their concern is not so much for the victims as to further prevent appeals, discussion of Todashev, secrecy in the case already muted by SAMs, etc.
    Thanks for your work!

    1. Hi Cathy, thanks for your kind words! In part 2 of the podcast we will cover the next steps of the appeal process and the political atmosphere surrounding the decision, which hopefully will shed more light on the government’s actions. We recorded before today’s filing, but the request is what we have suspected – the Trump administration is simply looking to reinstate the death sentence for purely political reasons. However, the government must file a writ of certiorari to the Supreme Court, asking them to take up the case. Their filing deadline is now late December 2020, and it will likely be many months before SCOTUS even decides whether they will hear the case. We also suspect Jahar’s lawyers have more they want to argue, either en banc (before the full First Circuit panel of judges) or before SCOTUS also.

      So the process is far from over, and the Trump admin’s efforts to reinstate the death sentence are a rather weak political ploy, in our opinion. Their stated reasons in today’s filing don’t even make much sense. They argue that the First Circuit appellate judges should have deferred to O’Toole’s discretion regarding voir dire – which they already have explained at length they did not because the violation of the Patriarca rule was so egregious – and that the error of not disclosing the Waltham triple murder evidence to the defense was “harmless” just because the case has “national significance” and no one wants to go through the trouble of a retrial. I’m very sorry that the government feels Jahar’s constitutional rights are so inconvenient for everyone else, but that shouldn’t make them go away.

      Hope this helps! Stay tuned.

  4. There are several good articles on Todashev’s killing on the Boston Marathon Bombing Weebly (reference: discussion/menu/articles/quick takes). Also Muckrock article & of course Florida AG report are interesting. I will be curious to see when & what results his family have as I am doubtful that everything will be available to them.
    I believe Susan Zalkind was/is writing a book on Waltham Three as she was a friend of one on them.
    It’s still an ‘open investigation’ in Middlesex County.

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