Tsarnaev Prosecutors Threaten to Remove Defense Witnesses Before They Testify Witnesses

The Government reached a new low in the Dzhokhar Tsarnaev trial this week, in my opinion. At a hearing outside the presence of the jury, AUSA William Weinreib complained about the security costs and FBI time spent ensuring the safety of five of Tsarnaev's relatives who traveled here from Russia to testify for him. They threatened to the FBI will take them back to Russia if the defense doesn't call them by Friday.

“It’s an enormous expense and distraction for the agency, and that’s just part of the expense that the government has endured,” federal prosecutor William Weinreb said during a closed-door meeting Monday with the defense and Judge George O’Toole, according to transcripts shown on the court's public terminal.

The Sixth Amendment compulsory process clause guarantees defendants the right to have witnesses brought to trial to testify for the defense: [More...]

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Supreme Court in Washington v. Texas:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

If the defendant is found to be indigent, like Dzhokar Tsarnaev, the cost is born by the Government.

More from the prosecutor:

The FBI is devoting 16 personnel full time to taking care of them, both guarding them as well as protecting them from the press and others,” Weinreb said, according to the transcript. “It’s currently the intention of the FBI to return the foreign witnesses to Russia on Friday, meaning that they need to testify this week. At that point they will have been in the country for a week.”

Why is the FBI involved at all? Is it because the only way the U.S. would let them enter the country was with the FBI a chaperones? It sounds like there was some kind of compromise agreement made (it's probably in the sealed motions and orders which we haven't seen) whereby the defense asked the witnesses be brought here and the Government, not wanting them here for security reasons, agreed but insisted on the FBI acting as babysitters.

If the Government insists on seeking the death penalty, it has to allow Tsarnaev to present his mitigation evidence, especially once they are already here. It can't have it both ways.

The defense said at the hearing they need more time to meet with the witnesses and go over their testimony. They are in court all day. The witnesses don't speak English. Prosecutors have no right to dictate the order in which the defense calls its witnesses.

The judge should have told Weinreb if the prosecutors and the FBI are tired of watching over the Tsarnaev relatives, they have the option to dismiss the death penalty notice so there's no need for their testimony. And if they aren't willing to do that, then stop whining. Unfortunately, the judge said the government's timetable (of removal Friday) sounded reasonable to him. If Tsarnaev is sentenced to death, I hope the appeals court finds it reasonable to throw out the death penalty for a violation of Tsarnaev's 6th Amendment right.

Since court doesn't meet on Friday, I suspect at least some of the Tsarnaev's relatives will take the stand today.

On a related note, two weeks ago I found and posted this photo of Jahar and Tamerlan.

I commented:

I think it effectively communicates more than the difference in age between the brothers. Tamerlan is just so dominant in the photo. Even the way he has his arm around Jahar seems controlling to me. Looking at it, it is hard to see how, even years later, Jahar would be his "equal partner" in anything.

I was glad to see the defense introduced it yesterday. The media present hadn't seen it before.

Also interesting: The victims' section of the courtrrom was mostly empty when the witnesses testified about Jahar growing up. His third grade teacher and some friends testified. They apparently weren't interested. That just invalidates their opinions about the outcome of the trial as far as I'm concerned. If the jury returns with a life verdict, the media shouldn't bother asking their opinion since they didn't hear all the evidence. They won't know if it was compelling enough to make a difference or not. Jahar started this trial with a clean slate at the guilt phase. The heinousness of the crime alone is never enough for the death penalty. The jury has to weigh the aggravating factors and the mitigating factors, not just one side's evidence. If they only heard the aggravating factors, their opinions are no different than the person on the street. I'd be interested in their comments if they heard all the evidence, but not if they just heard the evidence presented by the prosecutor.

During McVeigh's trial, you didn't get a choice. Once in the courtroom, you couldn't leave until the break. I hope whatever reporter interviews these victim family members after the trial is over, begins with this question: Did you see and hear the testimony from all the the defense witnesses? If they say no, the reporter should go find a different witness. You can't have a valid opinion of the penalty verdict in a death case without hearing the defense evidence should leave and find someone else to interview --someone who did hear hear it all.

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    Federal Complaint (5.00 / 1) (#1)
    by RickyJim on Thu Apr 30, 2015 at 09:18:20 AM EST
    Why didn't they consider the expense of the trial before they forced it by refusing to plea bargain with the defense?  Anybody have any idea of the cost to the taxpayers of that decision?  Is $100M a reasonable guess?

    The cost of the (5.00 / 1) (#13)
    by Jeralyn on Thu Apr 30, 2015 at 11:21:50 AM EST
    McVeigh trial, 20 years ago, was $82 million for the prosecution (for both investigation and prosecution, according to DOJ figures) and $15 million for the defense (according to figures released by the Court after the trial.)

    From the 2010 report by the U.S. Courts:

    * The median cost of a case in which the Attorney General authorized seeking the death
    penalty was nearly eight times greater than the cost of a case that was eligible for
    capital prosecution but in which the death penalty was not authorized.

    * The median cost of a case that was authorized and went to trial was more than twice
    the cost of a case that was authorized but resolved through a plea agreement.

    From 1989 to 2009, DOJ authorized 463 capital prosecutions. Of those 463 defendants, 262 went to trial (there were 204 trials, so some were tried together.) Death verdicts were returned against 68. "Death Verdicts as a Percentage
    of Capital Defendants Tried: 28%)


    Comment deleted (5.00 / 4) (#7)
    by Jeralyn on Thu Apr 30, 2015 at 10:41:31 AM EST
    for personal insult by author who misrepresented my words and claimed to "understand my emotional state." Personal attacks are not allowed here.

    You are free to disagree with my opinion, but you may not misstate what I write and claim I wrote something different and then disagree with your erroneous interpretation and add on an insult.


    Don't attribute J's analysis (5.00 / 2) (#14)
    by Peter G on Thu Apr 30, 2015 at 11:34:18 AM EST
    (or anyone else's) to their "emotional state," would be my suggestions, Recon. At least not when the post (or comment) is not patently emotional in its content and style.

    "emotional state" (5.00 / 1) (#20)
    by Mr Natural on Fri May 01, 2015 at 06:13:01 AM EST
    Same old sexism, IMO.

    no (none / 0) (#21)
    by Reconstructionist on Fri May 01, 2015 at 07:28:25 AM EST
      observing that a particular person has written something highly objectionable  from a purely emotional perspective is not sexist. I at no time stated or implied that women as a class are more likely to do so. I make similar observations about angry, irrational  and hypocritical comments from other posters be they men, woman or if I don't know if they have XX or XY.

       Does anyone actually wish to defend her stated position that it is improper for the media to publish the thoughts of victims or their families if they did not attend the entirety of the defense presentation?

        Does anyone wish to deny that is a hypocritical position coming from a person who has expressed her thoughts quite forcefully despite not having observed any of the trial

      Peter has come closest with: "Deeply held beliefs about a life-and-death issue, which she has seen up close in a way most of us never will, are not 'emotions.'"

       But, he misses the mark even if we were to assume that deeply held beliefs are not emotions.

       Even if the underlying belief is not emotional, the actions one takes and the words one write based on the belief most assuredly can be emotionally driven.


    You might want to contemplate (5.00 / 3) (#17)
    by Zorba on Thu Apr 30, 2015 at 01:45:41 PM EST
    the fact that this is Jeralyn's blog, and that she sets the rules here.
    If you do not like this, perhaps you should start your own blog, or find another blog where you are more comfortable with the site owner's opinion.

    I don't attribute J's opinion to (5.00 / 3) (#19)
    by Peter G on Thu Apr 30, 2015 at 07:33:30 PM EST
    "emotion" at all.  Frankly, I just don't see where you get that. (And thank you for your complimentary assessment of some of my attributes.) You may find her conclusions not to follow from her premises, or her opinion to be less than persuasively articulated - which I am not saying I would agree with -, but it's not "emotional." Deeply held beliefs about a life-and-death issue, which she has seen up close in a way most of us never will, are not "emotions." I don't know anyone, other than a few investigative journalists, who researches in the kind of depth Jeralyn does before putting her opinion out there. She may not be present in the courtroom in Boston, but she's following what's happening there, through news sources and docket entries both, at least as closely as someone who is present in the public area of the courtroom.

    Look who's (5.00 / 3) (#25)
    by Jack E Lope on Fri May 01, 2015 at 11:59:54 AM EST
    ...giving critiques of methods of persuasion.

    order of examining witnesses (none / 0) (#3)
    by Reconstructionist on Thu Apr 30, 2015 at 09:42:29 AM EST
    Prosecutors have no right to dictate the order in which the defense calls its witnesses

       But the judge does.

      Rule 611 (a):

      Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

    (1) make those procedures effective for determining the truth;

    (2) avoid wasting time; and

    (3) protect witnesses from harassment or undue embarrassment.

       Either side may make a motion requesting that the court exercise its discretion to control the order in which witnesses are examined. The rule sets forth the grounds upon which the judge may exercise the discretion. I'd agree that the cost of lodging and security is not among them and the government would need to say something more than set out above to bring this within "effective procedures" or  "wasting time." It's also worth noting "effective" is not the same as "efficient."

      The advisory notes to 611, elaborate:

    Subdivision (a). Spelling out detailed rules to govern the mode and order of interrogating witnesses presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain.

    Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick §5, the order of calling witnesses and presenting evidence, 6 Wigmore §1867, the use of demonstrative evidence, McCormick §179, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances.

    Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b).

    I said the prosecutor doesn't (5.00 / 1) (#5)
    by Jeralyn on Thu Apr 30, 2015 at 10:30:57 AM EST
    with which you agree. Your comment is irrelevant

    No, it's far from irrelevant (none / 0) (#6)
    by Reconstructionist on Thu Apr 30, 2015 at 10:37:05 AM EST
      It cites  the applicable rule, explains procedure and sets forth the grounds under which a court may grant a request from a party to exercise its discretion to control the order of presentation of witnesses.

      I do share your opinion  that the grounds stated in your post do not justify the judge requiring the defense to call the family witnesses earlier than the defense desires. that does not mean the government is acting improperly I in bringing its concerns before the court and asking it to exercise its control under Rule 611 (a); dictating is not the same as requesting.


    this is a death case and the (5.00 / 2) (#9)
    by Jeralyn on Thu Apr 30, 2015 at 10:53:58 AM EST
    prosecution is threatening to deprive the defendant of five witnesses to support his case for life, who are already here from another country, after extensive efforts were made and funds were expended to bring them here. Death is different, says the Supreme Court. And a federal rule of evidence doesn't trump the Constitution. Another Example: The judge can limit cross-examination according to federal rules, but if he does so unfairly, and the defendant's constitutional right is compromised by the restriction, the court of appeals can reverse. If the Government sends these witnesses home early for the flimsy reasons it gave, I think it risks a reversal of any ensuing death verdict by a higher court.

    that is all true (none / 0) (#12)
    by Reconstructionist on Thu Apr 30, 2015 at 11:15:56 AM EST
      but has nothing whatsoever to do with whether my citing the rule, explaining the procedure and setting forth grounds for a judge to exercise his discretion is irrelevant.

      The rule does not "trump" the Constitution, but it clearly can be applied without VIOLATING the constitution, even in a death penalty case.

       I'd agree, AGAIN, with you that the judge should not (and I'm close to certain he won't) allow the government to keep the defense from calling the witnesses (if it chooses to do) by removing them from the jurisdiction of the court.

      I personally would even disagree with the court requiring the defense to call a witnesses in a different sequence than it desires in this case. However, I don't believe any ruling by the court merely denying the defense absolute latitude to call witnesses in the order it wants would necessarily raise a valid 6th Amendment issue.


    Court in Recess Until Monday (none / 0) (#4)
    by RickyJim on Thu Apr 30, 2015 at 10:24:30 AM EST
    (CNN) -- The sentencing phase in the case of Boston Marathon bomber Dzhokhar "Jahar" Tsarnaev will resume Monday following the illness of a juror. The federal jury in Massachusetts was sent home Thursday as the defense team seeks to spare Tsarnaev from a death sentence for his part two years ago in the Boston Marathon bombings and murder of an MIT police officer.

    I don't think any of the Russian witnesses have testified yet.

    I hope they worked out the family witness thing (none / 0) (#10)
    by Peter G on Thu Apr 30, 2015 at 10:59:12 AM EST
    first, then.

    So, you are saying that Jeralyn, (none / 0) (#16)
    by Jack E Lope on Thu Apr 30, 2015 at 01:10:20 PM EST
    ...by her own standard, should not be interviewed by the press?

    Since it is not factually possible for Feds... (none / 0) (#22)
    by Dadler on Fri May 01, 2015 at 10:48:47 AM EST
    ...to go financially bankrupt, anymore than it is not factually possible that the world is flat, all talk of costs here is like a snipe hung, living purely in fantasy land. But, then again, our entire nation lives in fantasyland delusions regarding the nature and origin of fiat currency (what we actually use in this nation), valuing it far above human life, so, who knows...

    Proofreading, oh my lord (none / 0) (#23)
    by Dadler on Fri May 01, 2015 at 10:49:50 AM EST
    anymore than it is factually possible for the world to be flat.

    all talk of costs here is like a snipe HUNT.

    Oy. Oy. Oy.


    Here's the answer. (none / 0) (#26)
    by Mr Natural on Mon May 04, 2015 at 12:38:15 PM EST
    Boston Marathon bomber cries, wipes eyes as aunt takes stand

    BOSTON (AP) -- For the first time, Boston Marathon bomber Dzhokhar Tsarnaev dropped his blank, impassive demeanor and cried as his sobbing aunt briefly took the stand Monday in his federal death penalty trial before she was asked to step down to compose herself.

    No surprise as what's revealed is not the stone killer portrayed.

    Tsarnaev emotion upsets bombing victim (none / 0) (#27)
    by TycheSD on Mon May 04, 2015 at 04:54:27 PM EST
    It seems as though everyone - media and observers - have been waiting for the impassive facade of Tsarnaev to crack.  People have been describing him as unrepentant and unaffected by the suffering of the victims of the bombing attacks.  Well, today, he cracked.  But it was during the non-testimony of his sobbing aunt - who could not testify because she was so overcome with sorrow to do so.  

    This apparently was too much for Liz Norden, the mother of two men who each lost part of a leg in the bombing.  She was furious.  So, now we'll be hearing that Tsarnaev's show of emotion didn't matter because he wasn't crying about the victims.

    By the way, this judge made some disparaging remarks to defense counsel today i front of the jury.  I see Judge O'Toole as a complete dud as a judge and also biased.  I think there are also problems with a few jurors, including the jury forewoman, who are not open at all to hearing about Jahar's background.