Tsarnaev Defense Renews Request for "Taint Team" and Lifting of SAM's

Dzhokhar Tsarnaev's defense lawyers have filed a motion (available here) renewing its request to lift the SAMs (special administrative measures) imposed by the Bureau of Prisons and to compel the Government to use a "taint team." The motion says "the defense is encountering obstacles related to FBI monitoring of family visits and BOP screening of materials that defense counsel need to review with the defendant."

When Dzhokhar Tsarnaev is visited by one of his sisters, the SAMs restrictions on him require the visit be monitored by the U.S. Marshals Service, Bureau of Prisons or FBI, so that the Government can determine if the visit is being used to pass messages soliciting or encouraging acts of violence or other crimes, or some other purpose that would violate the SAMs. The Government has recently said that an FBI agent present during a visit with one of his sisters heard Jahar make an inculpatory remark.

The original SAMs are here, and the defense argument against them is here and here. The modifications previously ordered by the Court are here.[More...]

A member of the defense team is also present during the sisters' visits so that the defense can fulfill its obligation to develop evidence to use for mitigation against the death penalty.

The defense says the person who has been monitoring the visits is an FBI agent involved in the case, which it says is an abuse of the SAMs' purposes. The FBI's presence not only inhibits their attempt to get mitigation evidence from his sisters, but also threatens attorney work product and can potentially provide the Government with evidence (including observations of his demeanor) to use against Tsarnaev. (The Government has acknowledged Tsarnaev made an inculpatory statement during one of the sister's visits.)

For example, the defense says in its motion, the sisters' visits could provide them with evidence regarding Jahar's relationship with his family, the impact that his execution would have on family members, and information pertaining to family dysfunction, mental illness, and the impact of family chaos on the defendant as he grew up, all of which have been recognized in other cases as mitigating evidence.

The defense says the defense team alone should be allowed to monitor the visits, and it is improper for FBI case agents who are members of the prosecution team to be present.

The purported purpose of in-person visit monitoring under the SAMs is to prevent the passing of messages or incitement of violence. The monitoring is not properly imposed as a tool to invade attorney work product - the choice of topics and information concerning family history and dynamics that the defense team aims to elicit and observe- or to develop information about the defendant's demeanor for use by the government at trial.

Special Agent [Timothy]Brown has been present during all of the sisters' visits to date, has provided directions at the beginning of each visit, has admonished the sisters and Mr. Tsamaev to speak only in English, has listened to the content of the conversations as they occur, and has taken notes.

Short of vacating or modifying the SAMs, the defense has requested that a taint team be used to monitor visits, and/or that none of Agent Brown's observations, or notes, be provided to anyone on the prosecution team. The prosecution has refused this request.

The Defense also complains that BOP has been asking to look at the discovery cd's it brings to review with Jahar on a computer.

However, on January 24, 2014, BOP staff asked to review the content of a CD that defense counsel had brought in to review with their client. In the absence of a taint team, defense counsel declined to submit to the review and therefore were unable to review the material with the defendant. Since that time, staff have asked counsel if they are bringing in digital media to review with Mr. Tsamaev. Pending resolution of this issue, counsel have not sought to do so.

....government knowledge of materials that the defense has selected to review with the defendant would undermine the integrity of attorney work product. The defense has requested that the government employ a taint team for this purpose, but the prosecution has declined to do so.

The defense is asking that the SAM's be rescinded, or if not, at a minimum, that the Court allow Jahar to have unmonitored family visits under the supervision of a defense team member order the government to employ a "taint team" to protect attorney work product.

The attorney work product privilege applies to criminal as well as civil cases. The Supreme Court has said (from U.S. v. Nobles, 1975):

Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.

In its earlier motion, the defense said on this issue:

Of course, the defense recognizes that all detention facilities must screen materials entering the facility for contraband — hidden objects, metal clips inadvertently left attached to documents, and the like.It is the notion that such screening of legal materials also may include substantive review of content, and a determination by BOP officials and/or the prosecutors whether the content is, in their opinion, properly “related to preparation of the defense,” that is extraordinary and objectionable. At a minimum, if such review and discussion is to occur it should be done by a “taint team” prohibited from sharing information with prosecutors on the case.

... To the extent questions arise under the SAMs and/or materials shown to Mr. Tsarnaev are subject to content-based review, a “taint team” segregated from the prosecutors must be established to protect attorney work product.

"Taint teams" would be better than the current situation, but as many have noted (see here, they may not provide sufficient protection. Jahar has been in custody for ten months. Unless the Government can show he has done or said anything since his arrest to commit violence, incite violence, or engage in communications that pose a security threat, I think they should be lifted.

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  • Display: Sort:
    He's as "good" as dead (5.00 / 2) (#1)
    by Dadler on Sun Mar 02, 2014 at 02:07:37 PM EST
    Life in prison would be worse than the death penalty for this kid, if the conditions of imprisonment are what he has been experiencing already. Insanity is not far behind. Literally. We're a dungheap of idiocy on this level, and it's gonna take some people willing to die in the streets to change it. Short of that, good luck with the rational arguments. Reason is not on the table when it comes to "terrorist" stuff.

    Poor choice of words? (5.00 / 1) (#9)
    by CoralGables on Mon Mar 03, 2014 at 11:19:55 AM EST
    it's gonna take some people willing to die in the streets to change it

    A few people did, albeit unwillingly which is why he is where he is.

    Life in prison would be worse than the death penalty for this kid

    I do always get a kick out of people that think someone else is better off dead, although wanting others to be willing to die in the streets has to be right up there.


    "a determination by BOP officials" (none / 0) (#2)
    by Mr Natural on Sun Mar 02, 2014 at 06:09:45 PM EST
    In other words, the legal genius of Dewey, Lynch'em, and Howe.

    When (none / 0) (#3)
    by Mikado Cat on Sun Mar 02, 2014 at 11:55:36 PM EST
    you kill a few dozen innocent people, you can't expect the rest of your life to be pleasant. Maybe in Norway, but obviously not here. We should be better than we are, he should be treated more fairly than he is, but the case too political for reason to get in the way.

    That would be five dead... (5.00 / 1) (#4)
    by bmaz on Mon Mar 03, 2014 at 02:45:33 AM EST
    ...not a "few dozen".

    FYI The cat doesn't (none / 0) (#5)
    by MO Blue on Mon Mar 03, 2014 at 08:07:06 AM EST
    let facts stand in his way when making comments.

    The only "facts" that he generally recognizes are those spewed forth by the likes of Limbaugh.    


    I don't usually agree with MCat (none / 0) (#6)
    by jbindc on Mon Mar 03, 2014 at 11:00:25 AM EST
    But let's fix his statement:

    "When you kill five innocent people, you can't expect the rest of your life to be pleasant."

    He's right.  The sentiment is still the same.


    Well, he gets points ... (5.00 / 1) (#8)
    by Yman on Mon Mar 03, 2014 at 11:13:02 AM EST
    ... for stating the obvious "sentiment", even if it has nothing to do with whether the SAMs should remain in place or be lifted.

    You are normally a strickler for facts (5.00 / 1) (#11)
    by MO Blue on Mon Mar 03, 2014 at 11:35:24 AM EST
    vs fiction.

    Claiming that dozens were killed is a lie.  One he didn't need to make to get his point across. Even when the truth would have sufficed to make his point, he still had a need to make things up. While you may agree with his sentiment, that doesn't change the facts involved or that he distorted the truth in his comment.


    To be technically correct, isn't it 4? (none / 0) (#10)
    by CoralGables on Mon Mar 03, 2014 at 11:27:09 AM EST
    3 from the bombings and 1 MIT police officer. Don't think the 5th death counts as an innocent.

    Did you even read the post? (none / 0) (#7)
    by Yman on Mon Mar 03, 2014 at 11:04:05 AM EST
    When you kill a few dozen innocent people, you can't expect the rest of your life to be pleasant.

    Apart from yet another, obvious falsity ("when you kill a few dozen innocent people"), this post has nothing to do with the rest of his life being "pleasant".  It's about the SAMs and whether or not they should remain in effect.


    Sheesh (none / 0) (#12)
    by Mikado Cat on Mon Mar 03, 2014 at 11:27:17 PM EST
    A dozen posts complaining about details, ignoring that I said we should be doing better. I see it as a case of how we treat the least powerful speaking greatly about our culture. For political reasons I don't see anybody willing to stick their neck out for this guy, or treat him less than harshly.

    "Details" (5.00 / 1) (#13)
    by Yman on Tue Mar 04, 2014 at 06:12:55 AM EST
    AKA "facts".

    Pesky, aren't they?