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Robel Philippos: Verdict Watch

The jury has been deliberating for an hour in in the trial of Robel Philippos,the friend of Dzhokhar Tsarnaev who is charged with lying to the FBI. Closing arguments were held this morning.

Prosecutors say Phillipos, 21, lied to investigators about his whereabouts and what he saw on April 18, 2013, when he and two friends allegedly visited Tsarnaev’s dorm room and removed a backpack of evidence after the marathon bombings. After several interviews, Phillipos signed a written confession admitting he had lied and that he regretted doing so.

Phillipos’s defense team contends that he was a scared 19-year-old at the time who was “high out of his mind” during interviews with investigators and could not remember clearly. The confession, they argued, was coerced by investigators.

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A few highlights from journalists tweeting from the courtroom (Bruce Gellerman, Patricia Wenn and Steve Cooper and Christine Hager:

The judge told the jury: "It's not against law to keep your mouth shut"...the allegation here is he lied to law enforcement."

He also instructed them (as is standard) to receive Azamat Tazhayakov's testimony with great care and caution since he was convicted of a crime and is seeking a favor (a lower sentence.)

AUSA Stephanie Siegelman told the jury "This case is about someone who lied, not about someone who didn't remember." She said Robel lied about what he knew and what he observed. Robel's defense lawyer, Derege Demissie, said Robel's purported confession was manufactured. He said the case is not just about memory and marijuana, but also that the government hasn't proven its case. He said government must prove not just that Robel's statements were false, but that the false statements were material to the investigation and he made them knowing they were false.

A marijuana expert and addiction specialist testified for the defense at trial that THC in marijuana affects memory, particularly in teens and young adults. The government did not call a witness to challenge his testimony. The defense today said government's lack of counter-argument on the impact of marijuana shows "They don't have the science on their side." In its rebuttal closing (the government gets two closings, first and last, because it has the burden of proof), AUSA John Capin said the government didn't call a rebuttal witness because the defense expert "didn't tell you anything that was useful." He said the marijuana argument was "a smokescreen."

The prosecutor said there is no evidence Robel Phillipos ever told investigators he was so high on pot he couldn't remember events. He was interviewed five times.

The defense highlighted the FBI's failure to record the interviews. As to the written statement (the purported confession), the defense said it was actually typed by the FBI agent, who told Robel to tell him if he got anything wrong. "This is a statement by the FBI, signed by Robel, Sincerely yours." "This statement is manufactured." He told them the "FBI interrogator's job is to get a confession, not the truth, and he's good at it." He said the FBI was watching Robel's interrogation on a TV monitor but didn't record it. "You think this is searching for the truth?" He also told them "That's how you control what's presented...You don't record it, the jury won't see it."

The defense said: "If you want a confession ...you give him a pad and pen. ..you don't scare the kid."

I wrote in a earlier post that the cheesiest line of testimony that day came from the FBI agent who said he told Robel that if he wasn't on "Team America", he was on the bench (with the terrorists.) The defense today on that point: "The FBI makes Robel shut his eyes and visualize and join Team America... the agents are like wolves outside the door."

The defense said the Government said he had a motive to lie and asks, Who is he protecting?" He says Robel had no memory and nothing to lie about,

On Robel's not immediately calling the FBI: "none of Tsarnaev's friends called the police. What kid smokes pot for 14 hrs and calls the FBI for a chat?"

The defense attorney got a laugh from the jury when he told them: Robel once even called the FBI saying they were late for their appointment. What "criminal mastermind says (to to the FBI) You're late!"

The defense said Robel never saw the backpack or fireworks protruding from the backpack. He said Azamat and Dias, his Kazak friends, were speaking in Russian when one of them said they thought Tsarnaev used the fireworks to make the bombs.

As to his not being too high to play a game on X-box, the defense pointed out playing video games involve motor skills but has nothing to do with memory.

Robel did not testify at trial (a wise decision, in my view.) As I frequently say, our jails are filled with people who thought if they could only tell their side of the story, the cops (or jurors) would see it their way. It rarely happens. The right to remain silent exists for a reason -- use it, don't lose it.

I also think that having Gov. Michael Dukakis testify for Robel was a good call by the defense.

After the closings, the judge dismissed three alternate jurors (all male.) The jury consists of 5 men 7 women. (I think that's good for Robel.)

What I don't like: That the judge instructed the jury that "they are the conscience of the community."

So, will this be the Government's first loss of a criminal case related to the Boston Marathon Bombings? I think there's a good chance it will be.

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