FBI Evidence Proves Innocence of Accused Boston
Marathon Bomber Dzhokhar Tsarnaev
FBI Evidence Proves Innocence of Accused Boston
Marathon Bomber Dzhokhar Tsarnaev
Paul Craig Roberts
I have been contacted by attorney John Remington
Graham, a member in good standing of the bar of the Minnesota Supreme Court and
the United States Supreme Court. He informs me that acting in behalf of Maret
Tsanaeva, the aunt of the accused Tsamaev brothers and a citizen of the Kyrgyz
Republic where she is qualified to practice law, he has assisted her in filing
with the US District Court in Boston a pro se motion, including an argument of
amicus curiae, and an affidavit of Maret Tsarnaeva. The presiding judge has
ordered that these documents be included in the formal record of the case so
they will be publicly accessible. The documents are reproduced below.
The documents argue that on the basis of the evidence
provided by the FBI, there is no basis for the indictment of Dzhokhar Tsarnaev.
The FBI’s evidence clearly concludes that the bomb was in a black knapsack, but
the photographs used to establish Dzhokhar’s presence at the marathon show him
with a white knapsack. Moreover, the knapsack lacks the heavy bulging
appearance that a knapsack containing a bomb would have.
As readers know, I have been suspicious of the Boston
Marathon Bombing from the beginning. It seems obvious that both Tsamaev
brothers were intended to be killed in the alleged firefight with police, like
the alleged perpetrators of the Charlie Hebdo affair in Paris. Convenient
deaths in firefights are accepted as indications of guilt and solve the problem
of trying innocent patsies.
In Dzhokhar’s case, his guilt was established not by
evidence but by accusations, by the betrayal of his government-appointed public
defender Judy Clarke who declared Dzhokhar’s guilt in her opening statement of
her “defense,” by an alleged confession, evidence of which was never provided,
written by Dzhokhar on a boat under which the badly wounded youth lay dying
until discovered by the boat owner and hospitalized in critical condition.
Following his conviction by his defense attorney, Dzhokhar allegedly confessed
again in jihadist terms. As legal scholars have known for centuries,
confessions are worthless as indicators of guilt.
Dzhokhar was not convicted on the basis of evidence.
In my questioning of John Remington Graham, I
concluded that despite 48 years of active experience with criminal justice,
both as a prosecuting attorney and defense attorney, he was shocked to his core
by the legal malfeasance of the Tsarnaev case. As Graham is nearing the end of
his career, he is willing to speak out, but he could not find a single attorney
in the state of Massachusetts who would sponsor his appearance before the
Federal District Court in Boston.
This tells me that fear of retribution has now
extended its reach into the justice (sic) system and that the America that we
knew where law was a shield of the people no longer exists.
Here is the Affidavit of Maret Tsarnaeva:
AFFIDAVIT OF MARET TSARNAEVA CONCERNING THE
PROSECUTION OF DZHOKHAR TSARNAEV
Mindful that this affidavit may be filed or displayed
as an offer of proof with her authorization in public proceedings contemplated
by the laws of the United States of America, and in reliance upon Title 28 of
the United States Code, Section 1746, Maret Tsarnaeva deposes and says:
I am the paternal aunt of Dzhokhar Tsarnaev who has
been prosecuted before the United States District Court for Massachusetts upon
indictment of a federal grand jury returned on June 27, 2013, for causing one
of two explosions on Boylston Street in Boston on April 15, 2013. In the count
for conspiracy, certain other overt acts of wrongdoing are mentioned. As I
understand the indictment, if Dzhokhar did not carry and detonate an improvised
explosive device or pressure-cooker bomb as alleged, all thirty counts fail,
although perhaps some lingering questions, about which I offer no comment here,
might remain for resolution, subject to guarantees of due process of law,
within the jurisdiction of the Commonwealth of Massachusetts.
I am currently living in Grozny, the capital of
Chechnya which is a republic within the Russian Federation. My academic
training included full-time studies in a five-year program of the Law Faculty
at the Kyrgyz State University, and I also hold the degree of master of laws
(LL. M.), with focus on securities laws, granted by the University of Manitoba
while I lived in Canada. I am qualified to practice law in Kyrgyzstan. I am
fluent in Russian, Chechen, and English, and am familiar with other languages.
I am prepared to testify under oath in public proceedings in the United States,
if my expenses are paid, and if my personal safety and right of return to my
home in Chechnya are adequately assured in advance.
Aside from other anomalies and other aspects of the
case on which I make no comment here, I am aware of several photo exhibits,
upon which the Federal Bureau of Investigation (FBI) relied, or of evidence
which their crime laboratory has produced, and certain other reports or
material. Together, these plainly show that Dzhokhar was not carrying a large,
nylon, black backpack, including a white-rectangle marking at the top, and
containing a heavy pressure- cooker bomb, shortly before explosions in Boston
on April 15, 2013, as claimed by the FBI and as alleged in the indictment for
both explosions. On the contrary, these photo exhibits show unmistakably that
Dzhokhar was carrying over his right shoulder a primarily white backpack which
was light in weight, and was not bulging or sagging as would have been evident
if it contained a heavy pressure-cooker bomb. The only reasonable conclusion is
that Dzhokhar was not responsible for either of the explosions in question.
On or about June 20-21, 2013, during their first trip
to Russia, which lasted about ten days more or less, Judy Clarke and William Fick,
lawyers from the federal public defender’s office in Boston, visited my brother
Anzor Tsarnaev, and his wife Zubeidat, respectively the father and mother of
Dzhokhar. The meeting was at the home of Dzhokhar’s parents in Makhachka which
is in the republic of Dagestan adjacent to the republic of Chechnya, and about
three hours’ drive from Grozny. My mother, my sister Malkan, and I were present
at this meeting. Zubeidat speaks acceptable English. Mr. Fick is fluent in
Russian.
Laying aside other details of the conversation on June
20-21, 2013, I wish to note the following:
— The lawyers from Boston strongly advised that Anzor
and Zubeidat refrain from saying in public that Dzhokhar and his brother
Tamerlan were not guilty. They warned that, if their advice were not followed,
Dzhokhar’s life in custody near Boston would be more difficult;
— Mme Clarke and Mr. Fick also requested of Anzor and
Zubeidat that they assist in influencing Dzhokhar to accept the legal
representation of the federal public defender’s office in Boston. Mr. Fick
revealed that Dzhokhar was refusing the services of the federal public
defender’s office in Boston, and sending lawyers and staff away when they
visited him in custody. In reaction to the suggestion of Mr. Fick, lively
discussion followed;
— As Dzhokhar’s family, we expressed our concern that
the federal public defender’s office in Boston was untrustworthy, and might not
defend Dzhokhar properly, since they were paid by the government of the United
States which was prosecuting him, as many believe for political reasons.
Dzhokhar’s parents expressed willingness to engage independent counsel, since
Dzhokhar did not trust his government-appointed lawyers. Mr. Fick reacted by
saying that the government agents and lawyers would obstruct independent
counsel;
— I proposed that Dzhokhar’s family hire independent
counsel to work with the federal public defender’s office in order to assure
proper and effective representation of Dzhokhar. Mr. Fick replied that, if
independent counsel were hired by the family, the federal public defender’s
office in Boston would withdraw;
— Mr. Fick then assured Anzor and Zubeidat that the
United States Department of Justice had allotted $5 million to Dzhokhar’s
defense, and that the federal public defender’s office in Boston intended to
defend Dzhokhar properly. Zubeidat then and there said little concerning
assurances of Mr. Fick. But for my part, I never believed that the federal
public defender’s office in Boston ever intended to defend Dzhokhar as promised.
And my impressions from what happened during the trial lead me to believe that
the federal public defender’s office in Boston did not defend Dzhokhar
competently and ethically.
In any event, I am aware that, following the meeting
on June 20-21, 2013, Mme Clarke and Mr. Fick continued to spend time with Anzor
and Zubeidat, and eventually persuaded Zubeidat to sign a typed letter in
Russian to Dzhokhar, urging him to cooperate wholeheartedly with the federal
public defender’s office in Boston. I am informed by my sister Malkan, that
Zubeidat gave the letter to the public defenders, shortly before their
departure from Russia on or about June 29, 2013, for delivery to Dzhokhar.
During subsequent trips Mme Clarke and Mr. Fick to see
Dzhokhar’s parents in Makhachkala, the strategy for defending Dzhokhar was
explained, as I learned from my sister Malkan. The public defender’s office in
Boston intended to contend at trial, as actually has happened since, that
Tamerlan, now deceased, was the mastermind of the crime, and that Dzhokhar was
merely following his big brother. I was firmly opposed to this strategy as
morally and legally wrong, because Dzhokhar is not guilty, as FBI-generated
evidence shows. Some ill- feeling has since developed between myself and
Dzhokhar’s parents over their acquiescence.
On or about June 19, 2014, during their visit to
Grozny over nearly two weeks, three staff members from the public defender’s
office in Boston visited my mother and sisters in Grozny. I am told that they
also visited Dzhokhar’s parents in Makhachkala.
The personnel visiting my mother and sisters in Grozny
on or about June 19, 2014, included one Charlene, who introduced herself as an
independent investigator, working in and with the federal public defender’s
office in Boston; another by the name of Jane, a social worker who claimed to
have spoken with Dzhokhar; and a third, by the name of Olga, who was a Russian-
English interpreter from New Jersey. They did not leave business cards, but
stayed at the main hotel in Grozny, hence I presume that their surnames can be
ascertained.
I was not present at the meeting in Grozny on or about
June 19, 2014, but my sister Malkan, who was present, called me by telephone
immediately after the meeting concluded. She revealed to me then the details of
the conversation at the meeting. Malkan and I have since spoken about the visit
on several occasions.
Malkan speaks Russian and Chechen and is willing to
testify under oath in public proceedings in the United States through an
interpreter in Russian, if her expenses are paid, and if her personal safety
and right of return to her home in Chechnya are adequately assured in advance.
She relates, and has authorized me to state for her that, during the
conversation on June 19, 2014, in Grozny, Charlene the independent investigator
stated flatly that the federal public defender’s office in Boston knew that
Dzhokhar was not guilty as charged, and that their office was under enormous
pressure from law enforcement agencies and high levels of the government of the
United States not to resist conviction. [Remember what happened to Lynne
Stewart, the federally appointed public defender who actually served her
client. She was sentenced to prison.]
This affidavit is executed outside of the United
States, but the foregoing account is true to the best of my knowledge,
information, and belief, and subject to the pains and penalties of perjury
under the laws of the United States of America.
Given on this 17th day of April 2015.
/s/ Maret Tsarnaeva
Here is the Argument of Amicus Curiae:
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
ARGUMENT OF AMICUS CURIAE No. 13-CR-10200-GAO
MAY IT PLEASE THE COURT:
1. Federal jurisdiction: The constitutional authority
of the United States cannot be extended to the prosecution of Dzhokhar Tsarnaev
in light of the opinion of the court in United States v. Lopez, 514 U. S. 549
(1995), and views of Alexander Hamilton in The Federalist, Ns. 17, 22, and 34
[Clinton Rossiter (ed.), Mentor edition by New American Library, New York,
1961, pp. 118, 143-144, and 209]. Congress has broad power to regulate
commerce, including trade and the incidents of trade, but domestic crimes and
use of weapons are generally reserved to the States. If there is sufficient
evidence to prosecute Dzhokhar for murder and mayhem, he should and can be
prosecuted exclusively by the Commonwealth of Massachusetts. Accordingly,
amicus urges that the indictment now pending should be dismissed, and the conviction
of her nephew Dzhokhar Tsarnaev of charges under several acts of Congress
should be vacated.
2. The actual innocence of the accused: Laying aside
misgivings of amicus and many others about of the “official” scenario
concerning this case, as broadcast to the world by the government and
mainstream news media of the United States, evidence generated by the Federal
Bureau of Investigation (FBI), confirmed on the judicial record of this cause,
and clarified by the indictment, or suitable for judicial notice under Rule
201(b) of the Federal Rules of Evidence, conclusively proves that Dzhokhar
Tsarnaev cannot be guilty of the crimes charged in this prosecution.
The formal indictment against Dzhokhar Tsarnaev was
returned on June 27, 2013. The document is 74 pages long, and accuses Mr.
Tsarnaev (hereinafter called Dzhokhar) of heinous crimes, including many counts
punishable by death. The central event for which Dzhokhar is alleged to have
been responsible, according to the indictment, took place, on Boylston Street,
in front of the Forum Restaurant, near the finish line of the Boston marathon
on April 15, 2013. The most important paragraphs of the indictment are numbered
6, 7, and 24 (including several other paragraphs repeating expressly or by
implication the substance thereof). Paragraphs 6-7, read in themselves and in
context, state that, acting in concert withhis (now deceased) brother, Dzhokhar
set down on the sidewalk and detonated one of two “black backpacks” which
contained “improvised explosive devices,” these “constructed from pressure
cookers, low explosive power, shrapnel, adhesive, and other materials.”
Paragraph 24 clarifies that the black backpack carried, and containing the
pressure-cooker bomb allegedly detonated by Dzhokhar, was placed in front of
the Forum Restaurant and was associated with the second explosion. The
indictment says in paragraph 6 that both bombs exploded at about 2:49 in the
afternoon (Eastern time), and that the bombs Dzhokhar and his brother placed
and detonated each killed at least one person, and wounded scores of others.
On the morning after the explosions, i. e., on April
16, 2013, Richard DesLauriers, special agent in charge of the FBI in Boston,
made a public statement at a press conference, which is published in printed
form on the FBI website and in the news media concerning the facts later set
forth in the indictment. Mr. DesLauriers said, as paragraphs 6-7 of the
indictment substantially confirm,
“. . . this morning, it was determined that both of
the explosives were placed in a dark-colored nylon bag or backpack. The bag
would have been heavy, because of the components believed to be in it.
“. . . we are asking that the public remain alert, and
to alert us to the following activity . . . someone who appeared to be carrying
an unusually heavy bag yesterday around the time of the blasts and in the
vicinity of the blasts.”
The FBI also published on April 16, 2013, a crime lab
photo of a bomb fragment found after the explosions This photo is reproduced as
Tsarnaeva exhibit 1 in the appendix hereof, and is believed proper for judicial
notice.
From this bomb fragment, the FBI crime lab was able to
reconstruct the size, shape, and type of pressure cookers, as was reported on
information published by the FBI to the nation on ABC News Nightline on April
16, 2013. A still-frame, taken from (about 01:39-01:54) of this ABC television
report, is reproduced as Tsarnaeva exhibit 2 in the appendix hereof, and is
offered for judicial notice. A larger segment of this ABC Nightline News report
(at about 01:31-02:14) elaborates facts set forth in paragraphs 6-7 of the
indictment, including reference to three of the four exhibits reproduced in the
appendix hereof. Each of the pressure cookers in question was a Fagor, 6-quart
model, marketed in or near Boston and elsewhere in the United States by
Macey’s. Its external dimensions are probably about 81⁄2 inches in height,
including cover, and about 9 inches in diameter. Stripped of hard plastic
handles and filled with nails, bee bees, and other such metal, then prepared as
a bomb, it would cause a bag carrying it to be, as observed by the FBI chief in
Boston during his press conference on April 16, 2013, “unusually heavy.”
Again on April 16, 2013, the FBI published a crime lab
photo, here reproduced as Tsarnaeva exhibit 3 in the appendix hereof, and
showing a blown- out backpack which is said to have contained one of the bombs,
— a black nylon bag with a characteristic white rectangle marking about 3 by
11⁄2 inches more or less as it appeared following the explosions the day
before. This photo pictures the “dark colored nylon bag or backpack” which Mr.
DesLauriers described in his press conference on the day after the explosions
when he described what was carried by the guilty parties. It was one of the
“black backpacks” referenced in paragraph 7 of the indictment. It is pictured
in prosecution exhibit 26 which was introduced on the second day of the trial
in this cause (day 28 on the transcript, March 5, 2015), showing that the bag
or backpack in question was found on the street near the post box in front of
the Forum Restaurant on Boylston Street, and, as previously noted, was
associated with the second explosion on April 15, 2013, which, in paragraph 24
of the indictment, Dzhokhar is alleged to have detonated. This general
impression is confirmed by defense exhibit 3090, showing a backpack with black
exterior or covering, and introduced on the sixteenth day of the trial (day 42
on the transcript, March 31, 2015). Tsarnaeva exhibit 3 is also suitable for
judicial notice.
On April 18, 2013, the FBI published a 29-second
street video claimed to have been taken from Whiskey’s Steak House on Boylston
Street at about 02:37- 38 o’clock in the afternoon (Eastern time), only minutes
before the explosions on April 15, 2013. It definitively settles the principal
question raised by the indictment and the plea of not guilty interposed against
it. Part of this video is tucked into prosecution exhibit 22 introduced on the
third day of the trial in this cause (day 29 on the transcript, March 9, 2015).
From this street video, three still-frame photos have been extracted. Two of
these still-frame photos were published by the FBI on April 18, 2013, on
posters which were used to identify suspects. All three photos were published
by CNN and the Associated Press on April 19, 2013. The third still-frame photo
from this video is most telling, and is reproduced as Tsarnaeva exhibit 4 in
the appendix hereof. As already noted, the FBI and the indictment have together
affirmed that the culprits who detonated these explosions were carrying large,
unusually heavy, black backpacks concealing pressure-cooker bombs; but, the
third still-frame photo from the Whiskey’s Steak House video reproduced as
Tsarnaeva exhibit 4, and drawn from a street video already used by the FBI to
identify the suspects and acknowledged by the government in this prosecution,
shows unmistakably that, shortly before the explosions, Dzhokhar was carrying a
small-size, white* backpack over his right shoulder the same light in weight,
not heavy laden, and displaying no sagging or bulging as would normally be
evident if the bag identified contained a pressure-cooker bomb of the size and
weight which the FBI has described.
(*For all practical purposes and to the naked eye, the
color is white, although technical computer analysis suggests a very whitish
shade of gray.)
Dzhokhar is not guilty of carrying and detonating a
pressure-cooker bomb, as charged in the indictment, as is literally as obvious
as the difference between black and white. There were and remain other suspects
whose identities have been credibly suggested. See, e. g., Toni Cartalucci,
Land Destroyer Report, April 19, 2013 (illustrated commentary entitled
“‘Contractors’ Stood Near Bomb, Left Before Detonation.”). But here it is
enough to reflect on the comment of Lord Acton that “historic responsibility
has to make up for the want of legal responsibility.” — J. Rufus Fears,
Selected Writings of Lord Acton, Liberty Fund, Indianapolis, 1985, Vol. 2, p.
383 (Letter to Mandell Creighton, April 5, 1887). Whatever is done in judicial
proceedings, history will judge this case, as surely as history has judged
other significant cases.
3. The grievance of amicus: It is impossible that
federal prosecutors and counsel for the accused did not know of the exculpatory
evidence which has just been identified and illustrated. Yet federal
prosecutors went head without probable cause, as if decisive evidence of actual
innocence, impossible to ignore in a diligent study of this case, did not
exist, as is wholly unacceptable in light of Brady v. Maryland, 373 U. S. 83 at
86-87 (1963).
Moreover, in her opening statement at trial on March
4, 2015, as reflected in the fourth paragraph of the transcript of her
comments, court-appointed counsel for the accused forcefully insisted that
Dzhokhar was guilty of capital felonies, as is positively disproved by evidence
generated by the FBI, reinforced by the indictment itself. She said,
“The government and the defense will agree about many things
that happened during the week of April 15th, 2013. On Marathon Monday, Tamerlan
Tsarnaev walked down Boylston Street with a backpack on his back, carrying a
pressure cooker bomb, and put it down in front of Marathon Sports near the
finish line of the Marathon. Jahar [i. e., Dzhokhar] Tsarnaev walked down
Boylston Street with a backpack on his back carrying a pressure cooker bomb and
placed it next to a tree in front of the Forum Restaurant. The explosions
extinguished three lives.”
And in her summation to the jury on April 6, 2015, as
the transcript shows, court-appointed counsel for the accused said nothing of
the exculpatory evidence in this case. She did not even ask for a verdict of
not guilty. She could hardly have done more to promote a conviction and the
severest sentence possible, even though the third still-frame photo from the
video at Whiskey’s Steak House, reproduced as Tsarnaeva exhibit 4, showed
Dzhokhar carrying a white backpack, as alone was enough to defeat the
indictment insofar as paragraph 7 thereof averred that the accused and his
brother committed the principal acts of wrongdoing by carrying and setting down
black backpacks. Such misconduct is altogether unacceptable in light of
Strickland v. Washington, 446 U. S. 668 at 687- 688 (1984).
The misconduct of which amicus complains served to
conceal decisive exculpatory evidence by legerdemain. Amicus urges not only
that the death penalty may not be imposed in this case, for all three opinions
in Herrera v. Collins, 506 U. S. 390 (1993), allow that the death penalty may
not be constitutionally imposed where the accused is demonstrably innocent, but
that sua sponte this court order a new trial with directions that new counsel
for the accused be appointed, motivated to provide an authentic defense for
Dzhokhar.
4. The corpus delicti: Paragraph 10 of the indictment
recites a statement in the nature of a confession by Dzhokhar written on the
inner walls of a boat in Watertown. But with respect to any and all evidence
offered or treated as suggesting an extrajudicial admission of guilt in this
case, amicus cites the penetrating observation by Sir William Blackstone in his
Commentaries on the Laws of England, Edward Christian, London, 1765, Book IV,
p. 357: “[E]ven in cases of felony at common law, [confessions] are the weakest
and most suspicious of all testimony, ever liable to be obtained by artifice,
false hopes, promises of favour, or menaces, seldom remembered accurately, or
reported with due precision, and incapable in their nature of being disproved
by other negative evidence.” Amicus and countless others suspect that the
alleged confession in the boat was staged as artifice to suit the government’s
case, and not authentic. But she stands on ancient wisdom which casts doubt on
all extrajudicial confessions without adequate safeguards, including the rule
that an extrajudicial confession is insufficient to convict, unless the corpus
delicti be sufficiently proved up. The rule is defined with various degrees of
rigor from jurisdiction to jurisdiction. In federal courts, in any event, the
corroboration required to sustain a confession or statement in the nature of a
confession need only be independent, substantial, and reveal the words in
question to be reasonably trustworthy, as appears, e. g., in Opper v. United
States, 348 U. S. 84 (1954).
If such be the law here applicable, the required
corroboration in this case must include evidence showing that Dzhokhar actually
carried a large, heavy, black backpack on Boylston Street before the explosions
on the afternoon on April 15, 2013, as claimed by the FBI and alleged in the
indictment. Tsarnaeva exhibit 4, a product of investigation by the FBI, shows
plainly that Dzhokhar did no such thing, hence no required corroboration has
been established
5. Closing remarks: The views here expressed are not unique,
but shared by good Americans, and others the world over. The undersigned and
her sister Malkan are prepared to testify as expressed in the affidavit filed
in support of the motion for leave to file a submission as amicus curiae. This
argument is
Respectfully submitted,
May 15, 2015 /s/ Maret Tsarnaeva
Zhigulevskaya Str. 7, Apt. 4
364000 Grozny, Chechen Republic, RF Telephone: 011-7-938-899-1671
Of counsel:
John Remington Graham of the Minnesota Bar (#3664X)
180 Haut de la Paroisse
St-Agapit, Quebec G0S 1Z0 Canada
Telephone: 418-888-5049
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this submission is
consistent with the rules of this Court, that it is prepared in 14-point Times
New Roman font, and that the bare text thereof consists of 2,331 words.
May 15, 2015 /s/ Maret Tsarnaeva
APPENDIX TSARNAEVA EXHIBIT 1
APPENDIX TSARNAEVA EXHIBIT 2
APPENDIX TSARNAEVA EXHIBIT 3
APPENDIX TSARNAEVA EXHIBIT 4
This is the communication I received from attorney
John Remington Graham:
TO DR. PAUL CRAIG ROBERTS, GREETING :
Dear Sir, — By way of introduction. I have practiced
criminal law for nearly forty-eight years, both prosecuting and defending, and
served as a founding professor in an accredited law school in my native
Minnesota. I have appeared as counsel before courts of record in sixteen
jurisdictions, and have a background in forensic science and medicine. I can
provide a résumé on request.
On March 25, 2015, while the trial was underway, I
wrote and distributed a short opinion on the prosecution of Dzhokhar Tsarnaev,
accused of capital felonies in Boston on April 15, 2013 in United States v.
Dzhokhar Tsarnaev, No. 13-CR-10200-GAO on the docket of the United States
District Court for Massachusetts, commonly known as the “Boston marathon case”,
or “the Boston bomber case”. I used eight photo exhibits to explain my
conclusions that, as a matter of law, there was no probable cause to support
the indictment, and that Mr. Tsanaev was plainly not guilty as charged. These
views were shared by others reporting on the internet, but my opinion was meant
to provide professional assurance to fellow citizens that, legally speaking,
something was radically wrong with the prosecution. In fact there were then and
still are a great many anomalies with the case.
The substance of the Boston marathon case, as I then
saw it, and as I still see it, is that, on the day after the explosions on
Boylston Street in Boston, the FBI crime lab determined from fragments at the
crime scene, the FBI chief in Boston announced, and the indictment itself later
confirmed that, shortly before the explosions, the culprits were carrying
large, heavy-laden, black backpacks containing pressure cooker bombs. Two days
later, the FBI chief in Boston stated publicly that the suspects were
identified by a certain street surveillance video, which for some days was
later displayed for public viewing on the FBI website. The video had been taken
from Whiskey’s Steak House, and was used to create still-frame photos of
Tamerlan Tsarnaev (the big brother, now deceased), and Dzhokhar Tsarnaev (the
little brother, later accused) as they walked up Boylson Street toward the
finish line of the Boston marathon, shortly before the bombs went off. These
two still frames were featured on posters distributed by the FBI in soliciting
cooperation from the general public. But there is a third still-frame photo,
taken from the same video, which shows unmistakably that Dzhokhar was carrying
a small, light-weight, white backpack. The backpack carried by Dzhokhar was
flat, and did not sag or bulge as would have been apparent if it contained a
pressure cooker bomb filled with shrapnel as described in the indictment. This
third still-frame photo was published by the major news media of the United
States. I retrieved my first copy of this third still-frame photo from an
internet report of CNN on April 19, 2015.
The bottom line is that the FBI’s own evidence
eliminates Dzhokhar as a suspect, and conclusively proves he is not guilty as
charged. This reality is literally as clear as the difference between black and
white. The establishment press knew about it, and I cannot imagine how the
federal prosecutors and counsel for the accused could not have known about it.
So obvious was the actual innocence of Dzhokhar Tsarnaev that there was no need
for a trial at all, because a good criminal defense lawyer could have taken the
FBI information published the day after the explosions, the text of the
indictment, and the third still-frame photo from the street surveillance video
used by the FBI to identify suspects, and employed those items to support a
pre-trial motion for dismissal of the indictment. I have on many occasions made
such motions or seen such motions made by colleagues in federal courts, based
on facts revealed by disclosures which prosecutors must and routinely do make
available to counsel for the accused under a famous decision of the United
States Supreme Court. And I have seen such motions granted on not a few
occasions. Such practice is not uncommon, as I know from my own experience.
What was going on in Dzhokhar’s case? Why was there no
motion to dismiss the indictment based on indisputable facts? Why was there a
trial at all? Why did Judy Clarke, a big-time death-penalty lawyer appointed to
defend Dzhokhar, admit to the jury in her opening statement that her client was
guilty? She had decisive evidence that her client was not guilty. Why did she
not use it, bring the case to an end, and thereby save her client’s life? In
her final summation to the jury, Mme Clarke did not even ask for a verdict of
not guilty. She made no mention of the exculpatory evidence generated by the
FBI and mentioned in the indictment. Available were widely published
photographs of possible paramilitary agents near the crime scene in Boston
about the time of the explosions, carrying large, heavy-laden, black backpacks
with characteristic markings which the FBI crime lab material revealed. But
these persons with black backpacks were never investigated by the FBI. Why not?
I contacted Maret Tsarnaeva, the paternal aunt of
Dzhokhar living in Chechnya which is part of the Russian Federation, a lawyer
trained in the old Russian school of law in the Kyrgyz Republic which was once
part of the Russian Empire and the Soviet Union, but has been independent since
the conclusion of the former Cold War. A very bright and interesting woman
Maret turned out to be, and, from the beginning, she maintained that her nephew
was not guilty. My conversations with her over Skype led me to conclude that
Judy Clarke and her colleagues in the federal public defender’s office in
Boston could not stand up to the political pressure and thus threw the case
instead of defending Dzhokhar.
Mme Tsarnaeva executed an affidavit on April 17, 2015,
which explains events when representatives of the federal public defender’s
office in Boston met with Dzhokhar’s family in Russia. For those interested in
details, I attach a copy of her affidavit exactly as sent to me by Maret from
Russia and later filed with the federal district court in Boston, except that
the affidavit filed in the federal district court includes Maret’s original
signature in Russian script which I can verify with my business records.
Maret hoped to call exculpatory evidence to the
attention of the presiding judge, because Dzhokhar’s lawyers were not defending
the accused and federal prosecutors were acting without probable cause. After
diligent research on options was made, Maret decided to attempt an appearance
before the federal district court in Boston as a friend of the court. She had
to apply to the presiding judge for permission to appear in this capacity, and
to make a motion asking the court to appointment me as her personal counsel for
this purpose on special occasion. Normally, to be admitted to practice before
the court on special occasion, I would need a motion from a member of the local
bar. My paralegal assistant and I contacted many lawyers in Massachusetts. Some
were sympathetic, but none dared to participate, lest their reputations be
harmed. I had practiced before the federal district court in Boston some years
previously, and then had no difficulty in securing the routine courtesy of a
member of the local bar in sponsoring my appearance on special occasion. But
not even the American Civil Liberties Union in Massachusetts dared to assist
Maret or myself. I had to assist Maret in making an intervention pro se,
representing herself, while she listed me as “of counsel” so as to signal that
she was guided by a lawyer, and asked the presiding judge to admit me on
special occasion without sponsoring motion of a member of the local bar, due to
unusual circumstances. On instructions of court personnel, we could not proceed
on the electronic record, and Maret’s pro se motion with supporting documents
was served upon the federal district attorney and the federal public defender
in paper and by registered mail, and the papers had to be filed with the office
of the clerk of the federal district court, again in paper and regular postal
service. But our task was accomplished by May 29, 2015.
For your convenience, I attach herewith the formal
argument made by Maret Tsarnaeva acting pro se with my guidance, exactly as
filed in the federal district court in Boston, except that the copy served and
filed included the signature of Maret Tsarnaeva in Russian script, as I can
demonstrate from my business records. We showed by text and exhibits, and by
reference to the trial record and FBI-generated evidence that Dzhokhar cannot
be guilty, because the FBI determined and the indictment alleged that the
culprits carried black backpacks, but the FBI’s evidence showed that Dzhokhar
was carrying a white backpack.
Maret expressed her grievances against the unethical
misconduct of the federal prosecutors in proceeding when they knew they had no
probable cause, and the unethical misconduct of court-appointed counsel in not
defending in earnest. We enclosed the four most critical photo exhibits,
including the results of the FBI crime lab investigation and the exculpatory
third still-frame photo from the video used by the FBI to identify the
culprits.
I am aware that many incredulous citizens cannot
accept that the government of the United States would stage a show trial in
Boston to convict an innocent young man and sentence him to death. But such
events are not unusual in history. Judicial murder spoils the history of many
nations. These incredulous citizens point to Dzhokhar’s alleged confession
statements inside the boat in Watertown and at the time of sentencing. But
contrary to the beliefs of the uninitiated, it has been clear from ancient
times that confession statements are the weakest and most suspicious of all
testimony, as is stated by legal scholars going back many centuries. Maret’s
pro se argument cited Sir William Blackstone, from whom the founding fathers of
the United States learned the law, for this truth. False confessions are very
common, and result from fabrication, artifice, duress, unfounded hopes,
attempts to curry favor, even brainwashing. Hence, going back centuries the law
has struggled to develop safeguards against false confessions.
The intervention by Maret Tsarnaeva in behalf of her
nephew in the Boston marathon case is significant because, although denying her
motion to appear as a friend of the court, the presiding judge entered an
order, which appears on the electronic record, is numbered 1469, and directs
that her filings be maintained by the office of the clerk of the federal
district court in Boston. These documents should be accessible to those wishing
to see and read them. Therefore, it is a matter of public record, not merely a
matter of internet protest or gossip, that the federal prosecutors, the
court-appointed lawyers for the accused, and the presiding judge are all aware
of the FBI’s own evidence which excludes Dzhokhar Tsarnaev as a suspect, and
proves his actual innocence. It is also clear that the major news media of the
United States, which orchestrated a false appearance that Dzhokhar was guilty
of heinous crimes, and called for his execution, were aware that he was not
guilty. They knew, as the report of CNN four days after marathon Monday makes
plain, that Dzhokhar was in fact carrying a small, light-weight, white
backpack, and that the government’s own evidence shows that the culprits,
whoever they were, carried large, heavy-laden, black backpacks.
John Remington Graham of the Minnesota Bar (#3664X)
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