Tsarnaev Never Allowed to Speak with Attorney without FBI Present

Lost in the mishmash of reporting on the Tsarnaev trial is the fact that Dzhokhar Tsarnaev has never once been allowed to confer with his attorneys in private, without the FBI, law enforcement, and prison officials following every word. The law under which this was possible, called Special Administrative Measures, violates a foundational rule of jurisprudence even older than the US Constitution itself, under the reasoning that terrorist suspects may attempt to pass messages to followers and associates urging them to engage in further terrorist acts.

The effect of the law is to make it impossible for a suspect to tell his attorneys anything he believes would make his jailers angry without certain knowledge that, once the attorneys leave, he will be completely at the mercy of those holding him. Examples of such information would be the involvement of parties in the crime whom the prosecution does not wish to pursue, for whatever reason, or the complicity of the FBI in an entrapment scheme, the past use of which has been well-documented.

Attorney-client privilege, the name of the doctrine which describes the sanctity and importance of the client-attorney relationship to the ability of a suspect to mount a vigorous defense, can be traced back 400 years to English common law.

Ironically, the law was originally conceived to prevent an attorney from having to testify against his own client, in the event that the attorney received incriminating information. The Tsarnaev trial opened with his attorneys saying “It was him.”

Skeptics of the government’s narrative of the crime, some of whom believe the Tsarnaev brothers were not acting alone, are puzzled by the long list of issues which the defense failed to raise aggressively. Law enforcement revealed that it was interested in a woman who accompanied Tamerlan at the Macy’s where he bought five pressure cookers, captured in a store surveillance video. Government reports and the prosecution itself have acknowledged that the bombs were too sophisticated to have been made by amateurs, and would have required training, testing, and the kind of skills that neither Dzhokhar nor Tamerlan had.

Then there is the fact that the Boston FBI already knew who was in the pictures that it released to the public for “help” in identifying the suspects. It had placed Tamerlan, the older brother, on a terrorist watch list in 2011, after Russian intelligence told the FBI that Tamerlan was becoming dangerous. Contrary to the FBI’s claim that, bewilderingly, it had stopped tracking and conducting surveillance on Tamerlan after 2011, a Department of Homeland Security congressional oversight committee report states that the FBI’s Moscow office had been eavesdropping on communications between Tamerlan and Canadian jihadi William Plotnikov during Tamerlan’s trip to Dagestan in 2012.

To be sure, the defense in Dzhokhar Tsarnaev’s trial did file a motion requesting records of all interactions between the FBI and the Tsarnaev family between 2011 and the day of the bombing, but it is not known if the defense succeeded in obtaining such documents. The defense has alleged that the FBI was pressuring Tamerlan to become an informant on the Chechen community in the U.S.

But whatever the defense knows or suspects about other involved parties, it is unlikely that it received much help from the person who would know most about it: the defendant Dzhokhar. Because anything Dzhokhar said, the FBI was right there to listen to it.

It has been noted that Dzhokhar’s demeanor and personality seem to have changed drastically during his time under Special Administrative Measures, which most often means solitary confinement in a 10 foot by 12 foot cell for 23 hours each day, punctuated only by an hour for exercise in what resembles a dog cage. A very real, but little-remarked-upon, danger of Special Administrative Measures is that if mistreatment, psychological torture, or drugging were being practiced against a prisoner, it would be difficult for that prisoner to inform his lawyer of it during visits.

Evidence of Tsarnaev brothers being trailed by agents before bomb blasts

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Question: How Did the FBI Get its Pictures Mixed Up at Tsarnaev Trial?

A question which has not been raised by the defense in the Tsarnaev trial won’t seem to go away.  The question challenges the veracity of the FBI in every way, down to its willingness to deceive the public, if this question cannot be satisfactorily answered.  The question derives its significance from the plain simple forensic fact that once a still photograph is taken, parts or people within it cannot move.  Not even a little bit.  People move in videos.  But not still photographs.  Keep this simple fact in mind.

So when a Marathon runner took a photograph of the chaos at Boylston and Fairfield Streets, after the Boston bombs went off, it was on the spur of the moment, before he continued ahead to help the injured.  It was not until later that it was discovered that the photograph apparently contained a small figure, a young man, who was of interest to law enforcement.  That young man wore a white baseball cap, turned backwards, and seemed to be walking, along with the crowd, away from the location of the carnage.  The FBI later declared that the iPhone picture showed none other than Dzhokhar Tsarnaev.  Without his backpack.

“Conspiracy theorists,” a term now for people who tend not to take anything the government says at face value, immediately jumped on the image, saying that it looked like something behind the image, about where a backpack would be, had been airbrushed out.  At best the argument was inconclusive.  But when the prosecution showed the photo again in 2015, within a compilation of surveillance videos, something happened that could not happen in a still photo: Dzhokhar moved.  The prosecution’s 2015 image can be seen at minute 9:02 in official prosecution video compilation.

Not much.  But remember, this is a still photo.  One copy, if it is a copy, looks exactly like another.  In the photograph taken by the Marathon runner shown to the public in 2013, Dzhokhar Tsarnaev is well past a wooden door with a bald man standing next to it.  In the version of the photo shown to the jury, Tsarnaev is right in front of the door and the bald man.

Photo taken by Marathon runner released in 2013.

Photo taken by Marathon runner released in 2013.

Photo introduce to jury in Tsarnaev trial, 2015.

Photo introduce to jury in Tsarnaev trial, 2015, at minute 9:02 in official prosecution video compilation.

Is it a different photograph, taken at nearly the same time and from the same angle?  If so, it cannot have been taken by the Marathon runner, who told the New York Daily News: “It was one shot and it was the shot that counted.”

The runner told NBC Miami:

“I thought maybe it was a cannon…Then the second one exploded as he was walking toward it.  When I saw it, I pulled out the camera and immediately took that picture.”

He then put it back in his pocket and went to help the injured.

That means either someone, not this Marathon runner, was standing right next to him, to capture almost exactly the same angle, and snapped the shutter within no more than a second from the time the Marathon runner snapped his.  But the runner did not say anything about another cameraman, nor did another cameraman step forward after the first one did and say, “hey, I have almost the same picture” and hand it to law enforcement.

The Marathon runner’s photo was hailed as a great stroke of good luck in helping to solve the crime, in depicting an image of someone who had been seen in surveillance photos with a backpack, now without his backpack.  The hunt for the Tsarnaev brothers was on.

There is one problem.  In the etched-in-stone, fixed-pixel world of still photographs, which is what the Marathon runner took, not a video, Dzhokhar moved.  “It was one shot and it was the shot that counted” he said.

Another possible explanation, one might think, is that maybe there was a surveillance camera, which just happened to be trained on exactly the same spot at the same angle, and this is a frame from the surveillance camera video.  If so, the government should be able to produce the entire video, where we can see Tsarnaev move across the corner at the building of Boylston and Fairfield.

It just so happens, though, that the corner does not seem to have a surveillance camera or anything for that surveillance camera to watch, except a barren brick wall.  Below is what was behind the Marathon runner who took the picture, looking back in the opposite direction.

boylstonfairfield

Corner of Boylston and Fairfield Streets, looking back away from corner of brick building where Tsarnaev image is shown.

If the source of the photo with Dzhokhar in front of the door and the bald man cannot be produced, then there is only one conclusion.  The image shown to the public in 2013 was manipulated in the first place, and carelessly replaced with a different manipulation, or remanipulated slightly differently.  There is only one thing we know, that it cannot be one and the same photo as the one the Marathon runner took.  Because in still photos, people do not move.  Not even a little bit.  No matter how much time goes by.