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Tsarnaev defense fails to ask hardest questions

By Ralph Lopez - Posted on 24 March 2015

Defense team for Boston Marathon bombing suspect Dzhokhar Tsarnaev, (L-R) Miriam Conrad, Judy Clarke and Timothy Watkins walk into the federal courthouse.

The Tsarnaev trial in Boston - now in its third week - has already revealed a number of puzzles and questions in addition to being one of the most unusual high-profile trials in history.

For starters, not many trials have ever opened with the defense's opening salvo being 'he did it.' More precisely, lead defense attorney Judy Clarke said "it was him." From there, legal commentators have agreed upon the narrative that the job of the defense is not to cast a "reasonable doubt" that Dzhokhar Tsarnaev is guilty of the actions of which he is accused, but to avoid the death penalty. This despite a great number of both old questions and new which emerge as the trial moves forward.

One piece of information was reported by AP under the headline "Tsarnaev's Computer Contained Extremist Materials, FBI Agent Testifies." The prosecution sought to show that Tsarnaev had taken a violent jihadist's frame of mind before the bombing, by testifying that his laptop and other personal electronics had been downloaded with extremist literature. But below the fold, the interesting fact came out that Tsarnaev was not the only person who had access to his laptop and thumb drive.

AP reported:

"In fact, the thumb drives introduced Thursday contained material that appeared to have been put on them by other Tsarnaev family members, including a pay stub of his sister-in-law and a rental agreement in her name. Tsarnaev's thumb drive also contained homework by some of his college friends."

The "sister-in-law" would be Katherine Russell, the deceased older brother's widow, who is under investigation by law enforcement for possibly being the woman who is seen with Tamerlan in a Macy's store surveillance video, at the time he purchased five pressure cookers at that store. Even if the person in the Macy's store video is not Russell, law enforcement's keen interest in that person's identity reveals a key fissure in the prosecution's attempt to portray the bombing as the act of two brothers acting alone, since any woman in full Muslim garb, which is what Russell habitually wore and what is presumably captured in the video, would add a new dimension to the crime.

There are now strong suggestions that the FBI and other US agencies had contact with Tamerlan even before the March of 2011 warnings by the Russian government that he may have been on a violent course. In an April 2014 report on the Boston bombing by the Inspectors General of the "Intelligence Community," which includes the CIA, the Department of Justice, and the Department of Homeland Security, a censored portion refers to "JANUARY 2011 COMMUNICATIONS." The heading recalls a 2013 report by the New York Times which indicated that the Boston office of the FBI had interviewed Tamerlan and "family members" in January of 2011, even though the FBI has indicated that it first became aware of the family that March.

Other reports belie the FBI's claim to have had limited contacts with the brothers and the family, beginning and ending with the March/April 2011 "assessment" for Russian intelligence, after which the FBI said it did not have the "authority" to continue surveillance of them. This prompted investigative reporter Russ Baker to remark sarcastically that:


"...completely contrary to Edward Snowden's revelations about NSA abuses, US agencies are scrupulously careful about how they collect private data on individuals."

After the FBI wa warned that Tamerlan might travel to the Chechnya region soon, in 2012 he did exactly that, for six months, even as he was on two terror watch lists, placed there by the Boston FBI. Once there, a report by the congressional committee which oversees the Department of Homeland Security found that the Moscow FBI office may have intercepted communications between Tamerlan and a known violent extremist, William Plotnikov, a Canadian who was killed in a gun battle with Russian forces just two days before Tamerlan returned to the states.

The Tsarnaev family has long maintained that, despite the FBI's denials, the FBI had regular contact with the brothers over the past five years. The Tsarnaev defense team has asserted that Tamerlan was asked to become an informant on the Muslim Chechen community, and has requested all records of contacts between the FBI and the family. The father of the suspects said the FBI told his sons "We know what you eat, what you read on the Internet." The mother has said that her sons were "set up."

After the suspects had been captured or killed after the bombing, the FBI denied reports that it had ever known or interviewed the brothers until multiple law enforcement sources insisted that it had. The FBI was then forced to admit that it had, after the 2011 communication with Russian intelligence.

In 2013, an MIT police sergeant told a local radio station in an interview that: "The word was out regarding the suspects. We knew that his house was under surveillance, and the feds were all over the city of Cambridge."

US Representative Bill Keating returned from a fact-finding trip from Russia in 2013, in which he was handed a letter by Russian officials which they sent to the FBI in March 2011, warning that Tsarnaev had plans to join insurgents in Chechnya. The letter contained information such as Tamerlan's birthday, telephone number, cellphone number, where he lived, and information about his wife and child.

In another bizarre development in court last week, U.S. District Court Judge George O'Toole Jr. ruled that a law enforcement witness need not answer the question of whether the defendant was armed or not when he was captured from his hiding place, a boat in Watertown. The prosecution raised an objection when the question was asked, which O'Toole sustained. No mention, apparently, was made of the withering barrage unleashed by police into the boat, with no prior command to surrender being heard, as normal police procedure requires.

Police fire into boat in which defendant is hiding

It is not known if the defense will present the footage taken by a news crew during the chase and ensuing shootout on the night of Tamerlan's death, in which Tamerlan can be heard in an apparent attempt to surrender, yelling into the night "We didn't do it!" and "It wasn't us!" Another question which has yet to be raised by the defense is that of the backpacks allegedly containing the bombs. In the indictment dated June 27, 2013, the prosecution says the backpacks were black:

"The IEDs that exploded at the Marathon were constructed from pressure cookers, low explosive powder, shrapnel, adhesive, and other materials. They were concealed inside black backpacks."

But the backpack Dzhokhar is wearing is light gray, with black trim, in the prosecution's surveillance video compilation. Last week at trial the prosecution reversed itself on the color of the backpack, and presented pieces of a "black and white backpack." AP reported:

"FBI Agent Sarah De Lair held up pieces of the black and white backpack for the jury. She said they were found near the Forum restaurant, where Tsarnaev planted and detonated a bomb on April 15, 2013."

Moreover, it is not clear how the photograph of the backpack being carried by Dzhokhar on that day could be so inconsistent with a backpack containing a 30 pound, Fagor Elite six-quart pressure cooker filled with shrapnel and explosive (image of bottom stamp of pressure cooker.)  . A surveillance video shows a large amount of slack in the backpack. The model of pressure cooker which the authorities say was used, a Fagor Duo six-quart cooker, weighs nine pounds empty, and filled only with water would weigh 21 pounds. The cookers were filled with ball bearings, shrapnel, and explosives, for a conservative estimate of 30 pounds for each bomb.

Dzhokhar Tsarnaev backpack.
Dzhokhar Tsarnaev backpack.

Fagor six-quart pressure cooker

Fagor six-quart pressure cooker.
Two 15 lb. weights, total 30 lbs., weight of pressure cooker bomb used in Boston Marathon attack

Two 15 lb. weights  total 30 lbs.  weight of pressure cooker bomb used in Boston Marathon attack.

A photo taken by the New York Daily News shows what appears to be a backpack remarkably similar to the one Dzhokhar is carrying, left in Tamerlan's apartment before the brothers fled (New York Daily News photo.)

Observers have noted the unlikely manner in which the defendant is handling the backpack, and not showing any signs of strain against the significant load of approximately 30 pounds. He carries it by one strap, standing erect and not hunched forward against the load. Not only is Tsarnaev not hunched forward or showing any signs of strain, he can be seen at one point sauntering, loose-jointed, with his shoulders rolling back and forth, both hands in his pockets.

2:10 in surveillance montage, Dzhokhar Tsarnaev with backpack


Tsarnaev walking with backpack on one shoulder

The level of sophistication of the bombs has been described as "relatively sophisiticated" by experts. In a court filing this year, prosecutors conceded that the bombs would have been: "difficult" to fabricate successfully without training or assistance from others." This contradicts the contention made by the prosecution that the brothers made the bombs working only from plans found on jihadist websites.

In 2013 US Representative Michael McCaul, chairman of the committee which oversees DHS, said that "the level of sophistication" of the bombs used at the marathon "leads me to believe that there was a trainer."

The presence, on the day of the bombing, of other men with black backpacks resembling the one shown by the prosecution as one of those containing a bomb, running in the chaos without their backpacks, has been ignored by the media as well as the defense. One set of photos surfaced in a discussion on the social networking site, which prompted Boston FBI chief Richard Deslauriers to say in the press conference in which surveillance photos of the suspects were unveiled, that the images presented "should be the only ones that the public should view to assist us," in an apparent effort to tamp down speculation over the Internet that men in paramilitary gear, shown in the reddit photos, may have been involved.

Some of the photos showed images of men wearing caps displaying the logo of Craft International, a private security company similar to the company formerly known as Blackwater, now Xe Services.

On day 10 of the trial the prosecution presented for the first time a pair of white gloves allegedly worn by Dzhokhar Tsarnaev when he allegedly shot MIT officer Sean Collier, with bloodstains matching Collier's DNA. The gloves were said to be found in Tsarnaev's Honda Civic, on the floor of the driver's side near the gas pedal. In a surveillance video showing two assailants approaching Collier's cruiser before his death, the distance, dark, and angle prevent the identification of the assailants. An MIT student testifies that he saw the defendant leaning into Collier's cruiser as he rode past on his bike, but that part of the video, in which the shots were said to be fired at Collier, is excised from the public version, so the MIT witness and the speed at which he was traveling cannot be seen.

Another persistent oddity is a photo spliced into the surveillance video compilation presented by the prosecution, which appears to be the one taken by Marathon runner David Green, which allegedly captures Dzhokhar fleeing without his backpack. In the photo in the video compilation, Dzhokhar occupies a different position than he does in Green's famous photo. The defense has not asked if there were in fact two photos taken, although Green explicitly has said he took only one shot, telling the New York Daily News: "It was one shot and it was the shot that counted."

Detail of David Green photo showing Dzhokhar fleeing bombing, past the wooden door

Photo shown to jury in surveillance video montage, at 9:02, Dzhokhar flush with wooden door

One point on which the official surveillance compilation video shows past statements by prosecutors to be incorrect is in describing Tsarnaev as not reacting as the first bomb goes off. In March of last year, Boston FBI agent Stephanie Douglas told 60 Minutes in the special "Manhunt":

"You clearly see everybody look very, very definitely to the left like they've heard something. They've seen something. So you know that first blast has gone off. He does not do that. He does not do what everybody else in that video does, he does not turn to his left."

But at minute 7:43 in the surveillance compilation, the defendant can be seen turning to the left at the moment that the first bomb explodes, before starting to make his way in the opposite direction, before the second bomb goes off.

Tsarnaev (circled) looking left as first bomb explodes

One of the defendant's friends, Stephen Silva, has connected the defendant with the gun allegedly used to kill MIT police officer Sean Collier. However, Silva testified as part of a plea bargain which helped him avoid severe consequences for a career of drug-dealing in college.

Finally, the defense has not stated any intention of showing evidence that the brothers were being surveilled on that day, at the Marathon, as a copy of a video shown by CNN suggests. In it, a man with appears to be a security detail-style earpiece watches the brothers as they round the corner by the Whiskey Steak House on Boylston Street, and speaks into it as they pass (video below.)

Video obtained by CNN, man with earpiece (narration: Pete Santilli)

RELATED READING:  Question which must be asked in Tsarnaev trial — Were they alone?

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